Alka W/O Udhav Khaire And Others vs The State Of Maharashtra And Anr
2017 Latest Caselaw 1724 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO. 4878 OF 2016

1.     Alka Udhav Khaire,
       Age : Major, Occu. Govt. service
       as assistant Reginal Director of
       Municipal Adm.
       R/o Nandanvan Colony, Aurangabad.

2.     Manohar Hanumant Tunganwar,
       Age: Major, Occu.: Sanitary Inspector,
       Municipal Council Partur,
       R/o: Municipal Council, Partur, Dist. Jalna.

3.     Harur Rashid Khan Pathan,
       Age: Major, Occu. : Driver,
       Municipal Council Partur,
       R/o Municipal Council, Partur, Dist. Jalna.

4.     Jalinder Kurhe,
       Age : Major, Occu. : Driver,
       Municipal Council Partur,
       R/o Municipal Council, Partur, Dist. Jalna.          ...APPLICANTS
                                                             (Ori. Accused)

       versus

1.     State of Maharashtra,
       Through Police Inspector,
       Police Station Partur,
       Dist. Jalna.

2.     Dr. Ramprasad Madhavlal Porwal,
       Age : Major, Occu.: Doctor,
       R/o Balaji Mandir Road, New Mondha,
       Partur, Dist. Jalna
                                                         ...RESPONDENTS
                                                        (Ori. Complainant)

                                      .....




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                                     WITH
                  CRIMINAL APPLICATION NO. 5680 OF 2016

1.     Alka w/o Udhav Khaire,
       Age : Major, Occu. Govt. service
       as assistant Reginal Director of
       town planning,
       R/o Nandanvan Colony, Aurangabad.

2.     Manohar s/o Hanumant Tunganwar,
       Age: 51 years, Occu.: Sanitary Inspector,
       Municipal Council Partur,
       R/o: Municipal Council, Partur, Dist. Jalna.

3.     Harur Rashid Khan Pathan,
       Age: Major, Occu. : Driver,
       Municipal Council Partur,
       R/o Municipal Council, Partur, Dist. Jalna.

4.     Jalinder Kurhe,
       Age : Major, Occu. : Driver,
       Municipal Council Partur,
       R/o Municipal Council, Partur, Dist. Jalna.          ...APPLICANTS
                                                             (Ori. Accused)
       versus

1.     State of Maharashtra,
       Through Police Inspector,
       Police Station Partur,
       Dist. Jalna.

2.     Dr. Ramprasad Madhavlal Porwal,
       Age : Major, Occu.: Doctor,
       R/o Balaji Mandir Road, New Mondha,
       Partur, Dist. Jalna
                                                         ...RESPONDENTS
                                                        (Ori. Complainant)
                                     .....
Mr. M.V. Ghatge, Advocate for Applicant
Ms. P.V. Diggikar, APP for Respondent No. 1
Mr. Dr. Ramprasad Madhavlal Porwal (Party in person) Respondent No. 2
.....
                                         CORAM : S.S. SHINDE AND
                                                 K.K. SONAWANE, JJ.

RESERVED ON : 29th MARCH, 2017.

PRONOUNCED ON : 17th APRIL, 2017.

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JUDGMENT : ( PER K.K. SONAWANE, J.) :-

1] Rule. Rule made returnable forthwith. Heard finally with the

consent of counsel appearing for both sides.

2] This application is preferred by the applicants invoking remedy

under Section 482 of Cr.P.C. read with Articles 226 and 227 of the

Constitution of India and thereby prayed to quash and set aside the

impugned FIR bearing Crime No. 199 of 2016 registered under Sections 406,

409, 420, 468,471, 477 r/w. 34 of IPC at police station, Partur, Dist. Jalna.

The impugned FIR came to be registered pursuant to the directions of the

learned Magistrate under Section 156(3) of the Cr.P.C. issued in a private

criminal complaint filed under Section 200 of the Cr.P.C. by the respondent

No.2 Dr. Ramprasad Mohanlal Porwal.

3] It has been alleged that the applicants being employee of the

Municipal Council, Partur have indulgence in the offence of forgery for the

mischief of cheating and misappropriation of public funds and thereby

committed the Criminal Breach of Trust etc. According to respondent

No.2/complainant, in the year 2013-14, there were two vehicles of the

Municipal Council, Purtur for public utility services. The applicant No.2 Shri

Manohar Tunganwar, Sanitary Inspector, used to maintain the log book of

these vehicles. The applicant No.1 Smt. Alka Khaire was the Chief Officer of

the Municipal Council, Partur during the relevant period of year 2013-14 and

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applicant Nos. 3 and 4 were the drivers deputed on these vehicles of the

Municipal Council.

4] The respondent No.2/complainant ventilated the grievances

that under the Right to Information Act, he procured the relevant documents

of log book and the fuel purchased for the vehicles of Municipal Council as

well as the amount paid to the concerned dealer for supply of fuel. It was

transpired that in the year 2013-14, the Municipal Council purchased the

fuel/diesel for these two vehicles of quantity 3310 liters and as per the log

book, both the vehicles were shown used for a distance of 1862 Kilometers.

According to respondent No.2/complainant, the quantity of fuel purchased

and the distance of the vehicle being driven, indicate that these two

vehicles of the municipal council consumed about 1.5 liters fuel per

kilometer, throughout the year which is highly improbable and suspicious

one. Moreover, the record of the Municipal Council demonstrate that the

payment of Rs. 8,76,161/- was paid to Sandip Automobiles towards purchase

of fuel for the two vehicles. These suspicious circumstances reflect the foul

play on the part of the applicants. It has been alleged that the applicants in

connivance with each other, for wrongful gain or monetary benefits, caused

loss to the Government and public, by committing the mischief of cheating.

Therefore, respondent No.2 Dr. Porwal approached to the learned

Magistrate Partur and filed private criminal complaint under Section 200 of

the Cr.P.C. bearing Criminal Misc. Application No. 172 of 2016 for requisite

directions to investigate into the allegations under Section 156(3) of Cr.P.C.

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The learned Magistrate, verified the allegations as well as relevant

documents on record and bade the police of Partur Police Station to

investigate under Section 156(3) of Cr.P.C. Pursuant to the directions of the

learned Magistrate, the Partur police registered the FIR bearing Crime

No.199 of 2016 and set the investigation into motion. The validity and

propriety of the impugned FIR is put into controversy on behalf of applicants

in the present application.

5] Mr. Ghadge, learned counsel for the applicants, vehemently

submitted that the allegations nurtured on behalf of respondent

No.2/complainant are false, baseless and rest on the figment of imagination.

The allegations are so absurd and inherently improbable to draw the

inference of mischief of forgery and cheating on the part of the applicants.

The complainant did not comply with the basic requirement of law as

contemplated under Section 154 of the Cr.P.C. He had not approached to the

police by filing FIR under Section 154 of the Cr.P.C. nor he approached to the

superior police personnel to ventilate his grievances. The learned counsel

also assailed that the present applicants, being public servants, as defined

under Section 21 of the IPC, prior sanction under Section 197 of Cr.P.C. is

necessary, to initiate any criminal proceedings against them. But, the

respondent No.2/complainant did not obtain sanction for prosecution against

these applicants and, therefore, the criminal proceedings initiated against

the applicants is liable to be quashed and set aside.

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6] Mr. Ghadge, learned counsel also criticized the impugned order

passed by the learned Magistrate under Section 156(3) of the Cr.P.C. and

contended that the learned Magistrate without application of judicious mind,

and without verifying the facts and circumstances on record, in its proper

perspective, passed the impugned order in a mechanical manner. According

to learned counsel Mr. Ghadge, the preliminary enquiry on the part of

learned Magistrate into the allegations was imperative prior to any direction

under Section 156(3) of Cr.P.C. Therefore, the impugned FIR is totally

imperfect, unsustainable and not within the purview of law. He prayed to

quash and set aside the impugned FIR bearing Crime No. 199 of 2016

registered against the applicants. In support of his arguments, he relied

upon the exposition of law laid down in the case of Anil Kumar and others

Vs. M.K. Aiyappa and another reported in (2013)10 SCC 705.

7] Per contra, respondent No.2/complainant appeared in person

and vociferously opposed the contentions put forth on behalf of applicants.

He submitted that the applicants, taking disadvantage of their position,

being public servants, fabricated and manipulated the record of the

Municipal Council for purchasing fuel of the vehicles. The complainant

procured the documents under the Right to information Act and it was

revealed that the applicants in the year 2013-14 purchased the total

quantity of 3310 liters diesel, for these two vehicles and entries made in the

log book shown that the fuel was utilized only for 1862 kilometer distance.

After mathematical calculations, it was found that the vehicles consumed

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1.5 liters diesel for 1 kilometer distance. According to complainant, these

suspicious circumstances demonstrate the foul play on the part of the

applicants and they, by fabricating and preparing fake documents, for their

wrongful gain misappropriated the public funds under the guise of purchase

of fuel for vehicle of Municipal Council. He also pointed out that in the year

2013-14, the amount of Rs. 8,76,161/- was being paid at the behest of

applicants towards the purchase of fuel. The respondent No.2 blamed that

the act of mis-appropriation of public funds, forgery and cheating would not

be part of official duties of the applicants. Therefore, the prosecution

sanction under Section 197 is not necessary to initiate the criminal

proceedings against them. The respondent No.2 kept reliance on the

observations of Honourable Supreme Court in the case of "Shambhunath

vs. State of Uttar Pradesh" (1997)5 SCC 326. The respondent No.2

explained the circumstances in detail and prayed to dismiss the application

for want of merit.

8] Learned APP for respondent No.1 State also stepped into the

shoe of respondent No.2 complainant and submits that the allegations made

in the FIR against the applicants, prima facie, constitute the cognizable

offences. In view of the nature of allegations of forgery and

misappropriation, sanction under Section 197 is not required in this case.

Learned APP, therefore, prayed to reject the application.

9] We have considered the arguments canvassed on behalf of both

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sides. We have also delved into the relevant documents and investigation

papers produced on behalf of learned APP. It is clear from the aforesaid

factual aspects and submissions made on behalf of both sides, primarily, the

issues raised for consideration in the present application are :-

[1] Whether prior sanction in terms of Section 197 of Cr.P.C. is essential to prosecute the applicants, who are admittedly the public servants, as envisaged under Section 21 of the IPC ?.

[2] Whether allegations nurtured in the impugned FIR against the applicants are so absurd and inherently improbable that no prudent man can even reach a just conclusion that there are sufficient grounds to proceed further against the applicants ?.

10] In order to examine the first issue, as referred (supra) relating

to the requirement of prosecution sanction in terms of Section 197 of Cr.P.C.

it would be essential to appreciate the nature of allegations contained in the

FIR against the applicants. According to complainant, the applicants, in

connivance with each other, prepared and fabricated fake record for

purchasing the fuel of the vehicles of Municipal Council. They also forged

documents to make excess payment to the fuel supplier i.e. M/s. Sandip

Automobiles and caused loss to the Government while discharging their

official duties. It has been alleged that the applicants committed criminal

breach of trust, and misappropriated the public funds, thereby cheated the

Govt. and the public at large.

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11] It is to be borne in mind that the essential requirement for

sanction in terms of Section 197 of Cr.P.C. to prosecute the public servants

is that offences levelled against public servant must have been committed

while acting or purporting to act in discharge of his official duty. It is not

every offence committed by public servant that requires prosecution

sanction as contemplated under Section 197 of Cr.P.C. It is the quality of

the act done by the public servant while discharging his official duties which

is important and same is decisive factor for requirement of prior sanction to

prosecute the public servant. After considering the nature of allegations, if

it falls within the ambit of his official duties, the protection under Section

197 of the Cr.P.C. will be made available to the public servant, but, where

the alleged act or omission is unconnected with the official duties of the

public servant, then, the shield of section 197 cannot be extended to such

public servant, who committed the act contrary to law. The ultimate object

for protection conferred under Section 197 of Cr.P.C. is the pubic interest

with a view that official acts do not lead to vexatious or frivolous

prosecution of public servant.

12] In the case of Shambhunath Mishra (referred supra) the Apex

Court, enunciated that the requirement of sanction by competent authority

or appropriate Government, is an assurance and protection to the honest

officer, who does his oficial duties to further public interest. However, the

performance of official duty under the colour of public authority cannot be

camouflaged to commit the crime. Their Lordships of the Honourable

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Supreme Court, in para.5 delineated the ratio that :-

"5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained."

13] The Honourable Supreme court, in the case of Rajib Ranjan

and others Vs. R. Vijay Kumar reported in (2015)1 SCC 513, laid down a

similar proposition of law. In para. 18 it has been observed as under :-

"18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the

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allegations pertain to fabricating the false records which cannot be treated as part of the appellant's normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied."

14] In the case of Punjab State Warehousing Corporation Vs.

Bhushan Chander and others, reported in (2016)13 SCC 44, the

Honourable Apex Court, dealt with the various judicial pronouncements

relating to prosecution sanction under Section 197 of Cr.P.C. and it has been

held that the prosecution sanction in terms of Section 197 of Cr.P.C. for the

offence under Sections 406, 409, 420, 467, 468, 471, 120-B of IPC, is not

necessary for taking cognizance of the allegations by the Court. Extract of

observations in para. 19 is reproduced hereinbelow :-

"19. In State of Kerala Vs. V. Padmanabhan Nair 32 it has been held that when no sanction under Section 197 is necessary for taking cognizance in respect of the offences under Section 406 and Section 409 read with Section 120-B IPC. Similar principle has been laid down in State of H.P. Vs. M.P. Gupta 33. In Parkash Singh Badal Vs. State of Punjab 11it has been ruled that the offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of

32 (1999)5 SCC 690 33 (2004)2 SCC 349 11 (2007) 1 SCC 1

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the offence. Similar principle has been reiterated in Choudhary Parveen Sultana Vs. State of W.B10 wherein the Court referred to the authority in Bhagwan Prasad Srivastava Vs. N.P. Mishra 34 and ruled thus : (Choudhary Parveen Case SCC p 402, para 12)

"12. It was also observed in Bhagwan Prasad Srivastava that Section 197 has been designed to facilitate effective and unhampered performance of their official duty by public servants by providing for Scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution was a condition precedent to the taking of cognizance of the cases against them by the courts. It was finally observed that the question whether a particular act is done by a public servant in the discharge of his official duties is substantially one of the facts to be determined in the circumstances of each case."

15] In the background of aforesaid analysis, it is evident that an

allegation of the indulgence of the applicants in the illegal activities of

manipulation and fabrication of record of the municipal council, for wrongful

gain to themselves and loss to the Government and public, as well as an

allegation of the mischief of cheating and misappropriation of public funds,

would not be considered as an integral part of their official duties. It cannot

be said that the allegation of the forgery, misappropriation of public fund,

cheating etc. on the part of applicants are committed while discharging their

official duties. It is worth to mention that, as alleged in the complaint their

official duty was not to manipulate or fabricate the record of the municipal

Council for misappropriation of public funds, while purchasing the fuel for

10 (2009)3 SCC 398 34 (1970)2 SCC 56

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vehicles and cause loss to the Government. Under such circumstances, we

find that the prior sanction to prosecute the applicants for the charges

leveled against them is not necessary in this case and, therefore, the FIR

cannot be quashed and set aside on this count at the instance of applicants.

Moreover, in the case of Prakash Singh Badal vs. State of Pubjab, reported

in (2007)1 SCC 1 in para.38 the Honourable Apex Court delineated the

guidelines as under :

"38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceedings. The question whether sanction is necessary or not may have to be determined from stage to stage."

16] In view of the aforesaid principles of law, the issue of

prosecution sanction can also be dealt with and considered by the concerned

trial court even after completion of investigation and filing of charge sheet

by the I.O. against the applicants into the matter. At this stage,we are not

inclined to quash the entire proceeding against the applicants for want of

prosecution sanction.

17] Now, turning to the another aspect of the matter, in regard to

the nature of allegations pitted against the applicants, the learned counsel

submits that the allegations levelled against the applicants are all based on

figment of imagination. The fuel which was purchased during the year 2013-

14 was after following the due procedure prescribed for the same. There

are vouchers of purchasing the fuel of the vehicles. The accounts of all

these transactions were also maintained and audited by the concerned

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authority every year. The fuel was not used for vehicles only but also

utilized for generators as well as other purposes. Therefore, all the

allegations are so absurd and frivolous and not sufficient to draw adverse

inference against the applicants.

18] At this juncture, we are unable to persuade ourselves to

subscribe the contentions propounded on behalf of learned counsel Shri

Ghadge, We would like to mention that the recitals of the impugned FIR, if

considered at its face value and accepted in its entirety, prima facie, alleged

offences of forgery, cheating and misappropriation of funds etc. are made

out against the applicants. There are documents available on record which

prima facie fortify the allegations nurtured on behalf of complainant.

Therefore, we are not prepared to accept the contention put forth on behalf

of applicants. Moreover, the issues in regard to veracity or truthfulness of

the allegations would be the subject matter to be determined and tested on

the anvil of merit during the detail trial. It is not legally permissible to

embark upon an judicial enquiry to evaluate the circumstances to ascertain

the correctness,genuineness of the allegations, while exercising the inherent

jurisdiction under Section 482 of Cr..C. It is the settled principle of law that

for exercise of inherent powers under Section 482 of Cr.P.C. , it is essential

to proceed entirely, on the basis of allegations made in the complaint or

documents accompanied with it per-se. The Court has no jurisdiction to

examine the correctness or otherwise of the allegations. The Apex Court in

the matter of State of Haryana Vs. Bhajanlal and others, reported in AIR

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1992 SC 604, in para 109, held as under : -

"109. We also give a note of caution to the effect that the power of quashing a criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

19] As discussed above, we do not find any merit in the arguments

canvassed on behalf of Shri Ghadge in regard to sustainability of allegations

made in the FIR. The judicial precedent relied on by the applicants in the

case of Anilkumar and others referred supra, is misplaced and not advance

the case of the applicants. There were allegations under the Prevention of

Corruption Act, 1988 and in view of Section 19(1)(3) of the said Act, the

prosecution sanction is imperative under law. But, in the matter in hand,

the allegations are relating to offences punishable under the IPC. Therefore,

the observations of Honourable Supreme Court in Anil Kumar's case would not

render much assistance to the applicants, as same is distinguishable on the

facts and circumstances of the present case.

20] The learned counsel Shri Ghadge, further criticized the

impugned order of the learned Magistrate passed under Section 156(3) of the

Cr.P.C. on the ground that there was no application of judicious mind and

impugned order was passed in mechanical manner. Therefore, the impugned

FIR is required to be quashed and set aside as same is registered pursuant to

the erroneous and illegal order passed by the learned Magistrate after

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exercising the discretion under Section 156(3) of Cr.P.C. In support of his

submission he relied upon the judicial pronouncement of the Division Bench

of this Court, in the matter of Pandharinath Narayan Patil vs. State of

Maharashtra and others reported in 2015(2) Bom.C.R. (cri.) 358.

21] The minute scrutiny of impugned order of the learned

Magistrate passed after exercising discretion under Section 156(3) of the

Cr.P.C. reflects that the arguments propounded on behalf of Shri Ghadge

appears not appreciable and comprehensible one. In contrast, the impugned

order adumbrates that the learned Magistrate, at the threshold had taken

every care and verified the contents of the complainant as well as affidavits

Exhibits 11 and 5, appended with the complaint. The learned Magistrate also

dealt with the controversial issue of requirement of prior sanction under

Section 197 of Cr.P.C. against the applicants public servants. The learned

Magistrate expressed the findings that the allegations of misappropriation

cannot be considered as part of official duties of the applicants. Therefore,

he arrived at the conclusion that the cognizable offence was shown to have

been committed. He preferred to exercise the discretion and directed the

police to investigate the allegations under Section 156(3) of the Cr.P.C. We

do not find any infirmity or error in the impugned order passed by the

learned Magistrate.

22] The learned counsel Shri Ghadge, further assailed that the

complainant failed to comply with the procedural formalities prescribed

under Section 154 of Cr.P.C. The complainant did not lodge the FIR under

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Section 154 of Cr.P.C. to the police for registration of crime nor he

approached to the higher authority of police to redress his grievances under

Section 154(3) of Cr.P.C. Therefore, the complainant has no locus to initiate

criminal proceeding under Section 200 of the Cr.P.C. against the applicants.

Hence, the learned counsel for applicants urged that the impugned FIR is not

maintainable in the eye of law and deserves to be set aside.

23] The primary object of the FIR from the point of view of the

informant is to set the criminal law in motion and for investigating officer is

to obtain information about the alleged criminal activity, so as to enable him

to trace out and book the culprit. It is true that there has to be FIR under

Section 154 of Cr.P.C. about the commission of cognizable offence and if the

officer in-charge of the police station refuse to record the information, the

remedy is available to the aggrieved complainant to approach to the higher

authority of police under Section 154(3) of Cr.P.C. But, the failure to

comply with the procedural formalities under section 154(1) or 154(3) would

not divest the jurisdiction of the Magistrate under Section 156(3) of Cr.P.C.

There can be cases where the Magistrate can exercise discretion even in non

compliance of the provisions of Section 154(1) or 154(3) of Cr.P.C. In the

matter in hand, in view of the peculiar facts and circumstances of the case,

nature of the allegations nurtured against the applicants as well as the

factual aspect that the complainant launched offensive against the

applicants and appeared before this Court in person, we find that the non-

compliance of the provisions of Section 154(1) and 154(3) of Cr.P.C. would

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not be an imediment for exercise of discretion under Section 156(3) of

Cr.P.C.

24] The Full Bench of this Court at its Principal Seat, in the case of

Panchabhai Popatbhai Butani vs. State of Maharashtra and others,

(2010)1 Mh.L.J.421, dealt with the issue, whether in absence of complaint

to the police, a complaint can be made directly before the Magistrate and

after elaborate discussion and deliberation of the various principles of law, it

has been delineated that the provisions of Section 154 of Cr.P.C. should be

invoked normally before taking recourse of the power of the Magistrate

under Section 156(3) of the Cr.P.C. but this dictum of law is not free from

exception and there can be cases, where non-compliance of section 154(3)

would not divest the jurisdiction of the Magistrate in terms of Section 156(3)

of Cr.P.C. The relevant portion from para.No.64 of the aforesaid precedent,

is reproduced hereinbelow :-

"64. XXXX

Question No.(i)

Whether in absence of a complaint to the Police,a complaint can be made directly before a Magistrate?

Answer :

Normally, a person should invoke the provisions of section 154 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under section 190 of the Code, under section 156(3). At least an intimation to the police of a commission of a cognizable offence under section 154(1) would be a condition precedent for invocation of powers of the Magistrate under section 156(3) of the Code. We would hasten to add here that this dictum of law is not free from

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exception. There can be cases where non compliance to the provisions of section 154(3) would not divest the Magistrate of his jurisdiction in terms of section 156(3). There could be cases where the Police failed to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampared with or an applicant would approach the Magistrate under section 156(3) of the Code directly by way of an exception as the Legislature has vested vide discretion in the Magistrate."

25] In the above premise, we are not inclined to nod in favour of

applicants for quashing the impugned FIR filed against them. The allegations

contained in the FIR, prima facie, constitute cognizable offence against the

applicants. The very nature of offence lodged against the applicants would

not be considered as part of the official duties of the applicants/public

servants. Therefore, prior sanction in terms of Section 197 of Cr.P.C. is not

required to initiate criminal case against the applicants/public servants.

The enquiry about the correctness or veracity of the allegations is not

amenable within the jurisdiction of this Court while exercising the inherent

powers under Section 482 of Cr.P.C. In view of the peculiar circumstancesof

the matter the non-compliance of the provisions of Section 154(1) or 154(3)

would not divest the jurisdiction of the learned Magistrate to exercise

powers under Section 156(3) of Cr.P.C. The ultimate object of registration of

crime is to collect the evidence and file report under Section 173 of Cr.P.C.

In such circumstances, we do not find any merit in the

objections raised on behalf of the applicants to quash and set aside the

impugned FIR. In sequel, the application being devoid of merit stands

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dismissed. Rule is discharged. In view of aforesaid discussion, Criminal

Application No. 5680 of 2016 also stands disposed of. No orders as to costs.

An observations made herein above are prima facie in nature and confined

to adjudication of present application only.

                [K.K.SONAWANE]                                         [S.S. SHINDE]
grt/-                 JUDGE                                              JUDGE


                Learned         counsel   appearing   for   the     Applicants,        after

pronouncement of Judgment, prays for continuation of the ad-interim relief which was in force during pendency of this Application, for further four weeks.

The prayer is vehemently opposed by the learned A.P.P.

Since the investigation is in progress and it is not desirable to stay filing of the charge-sheet, we are not inclined to entertain the prayer for continuation of interim relief for further four weeks. Hence said prayer stands rejected.

        [K.K.SONAWANE]                                        [S.S. SHINDE]
grt/-     JUDGE                                                 JUDGE