Bombay High Court

Chandrashekar S/O Tukaram ... vs The State Of Maharashtrsa And Anr on 24 April, 2017

Bench: S.S. Shinde

                                                              4121.16appln
                                      1


                            
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                       BENCH AT AURANGABAD

                 CRIMINAL APPLICATION NO. 4121 OF 2016 

          1.       Chandrashekar S/o Tukaram Salunke 
                   Age : 44 years, Occ : Service as Jr. Clerk, 
                   R/o Dy. Superintendent of Land Record, 
                   Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 

          2.       Smt. Pratibha W/o Arvind Kshirsagar, 
                   Age : 60 years, Occ : Retired, 
                   (Dy. Superintendent of Land Record)
                   R/o Ramandand Nagar, Jalgaon, 
                   Dist. Jalgaon. 
                                                ..APPLICANTS 
                   VERSUS

          1.       The State of Maharashtra 
                   Through The Police Inspector, 
                   Dharangaon Police Station, 
                   Dharangaon, Dist. Jalgaon. 

          2.   Shailesh S/o Ramesh Jaju 
               Age : 48 years, Occ : Agri., 
               R/o Near Railway Station, 
               At Post. Dharangaon, 
               Tq. Dharangaon, Dist. Jalgaon. 
                                           ..RESPONDENTS 
                                  ...
             Advocate for applicants : Mr.Amol S. Sawant 
            APP for Respondent/State : Mr. S.P. Deshmukh 
          Advocate for respondent no.2 : Mr. N.E. Deshmukh 
                                 ....

                              CORAM : S.S. SHINDE & 
                                      K.K. SONAWANE, JJ.
                              DATE  : 24th April, 2017
                                           
          JUDGMENT (PER S.S. SHINDE, J)

Heard.

4121.16appln

2. The learned counsel appearing for

the applicants submits that, applicant no.1

is presently working on the post of junior

clerk with the office of Deputy

Superintendent of Land Records, Dharangaon.

Applicant no.2, who is now retired due to

superannuation, was working on the post of

Deputy Superintendent of Land Record,

Dharangaon. He submits that the complaint is

filed and entertained at the instance of

respondent no.2, without getting necessary

sanction to prosecute the applicants, who are

the public servants. He submits that, in view

of the exposition of law by the Supreme Court

in the cases of Anil Kumar and others V/s

M.K. Aiyappa and another1 and Amal Kumar Jha

V/s State of Chhattisgarh and another2 before

the complaint is entertained against the

public servants previous sanction to

prosecute them is necessary. He invites our

1 (2013) 10 SCC 705 2 (2016) 6 SCC 734

4121.16appln

attention to Section 21 of the Indian Penal

Code and also section 197 of the Code of

Criminal Procedure. He further submits that,

even if the allegations in the first

information report are taken at its face

value and read in its entirety, an alleged

offences are not disclosed. Therefore, he

submits that, the first information report

deserves to be quashed.

3. On the other hand, the learned

counsel appearing for respondent no.2 invites

our attention to the allegations in the first

information report and submits that, those

allegations would clearly disclose an alleged

offences. He submits that, when there are

allegations of cheating and also forging and

fabrication of the documents, in that case,

the sanction is not necessary. The said acts

cannot be said to be in discharge of official

duty. In support of the aforesaid

contentions, he invites our attention to the

4121.16appln

exposition of law by the Supreme Court in the

case of P.K. Pradhan V/s State of Sikkim

represented by the Central Bureau of

Investigation3. He submits that, in the

present case, an allegations made against the

applicants of preparation of forged and

fabricated record/documents could not fall in

discharge of their official duties, and

therefore, the sanction is not necessary. He

submits that, the judgment of the Supreme

Court in the case of Anil Kumar (Supra) is in

relation to the provisions of Prevention of

Corruption Act, 1988, wherein there is a

specific provision to take sanction before

prosecution is launched against the public

servent. He submits that, the Supreme Court

in the case of P.K. Pradhan (supra) has taken

a view that, even during the trial, the

question of requirement of sanction for

prosecution can be raised at any time after

3 (2001) 6 SCC 704

4121.16appln

cognizance of the offence is taken, may be

even at the time of conclusion of trial or

after conviction.

4. The learned A.P.P. appearing for the

respondent/State invites our attention to the

investigation papers and also an allegations

in the first information report and submits

that, an ingredients of the alleged offences

have been attracted and the alleged offences

under sections 167, 192, 193, 205, 420, 464,

465, 466, 468, 471, 474 read with section 34

of the Indian Penal Code are constituted, and

therefore, further investigation is

necessary. Therefore, he prays that, the

application may be rejected.

5. We have given anxious consideration

to the submissions of the learned counsel

appearing for the applicants, learned A.P.P.

appearing for respondent/State and the

learned counsel appearing for respondent

4121.16appln

no.2. With their able assistance, we have

perused the pleadings in the application,

annextures thereto and the investigation

papers made available for perusal.

6. At the outset, it would be apt to

reproduce hereinbelow the relevant part of

the first information report, which would

clearly disclose an alleged offences :-

"v'kk fjrhus vkjksih ua- 1 o 2 ;kauh laxuerkus dk;kZy;hu drZO;iwrhZ u djrk lu 1932 e/;s M i=dkrhy uksan dz-2661 fnukad [email protected]@32 losZ ua- [email protected] P;k >kysY;k cnykuarj ekst.kh rkjh[k Eg.kts [email protected]@13 Ik;Zar dks.krkgh cny >kysyk ulrkauk ekst.kh djrkauk ewG udk'kkP;k vkdkj o n'kZfoysY;k {ks=QGkizek.ks ekst.kh u djrk [email protected] mrk&;kojhy {ks=QGk'kh esG clfo.;kps gsrwus fQ;kZnhP;k lkek;hd xVkrwu xsysyk jLrk x-ua-547 e/;s n'kZowu vfedze.k d:u {ks=kpk o udk'kkpk <kpk o vkdkjp cnyowu Vkdyk T;k ckcr vkjksihauk dks.krkgh gDd o vf/kdkj ulrkauk [kksVs nLr,sot udk'kk o 'kklfd; vfHkys[k r;kj d:u fQ;kZnhph tkxk o {ks=QG vuf/kd`r o csdk;ns'khj fjR;k rkC;kr o dCtkr vlY;kpk csdk;ns'khj vfHkys[k r;kj dsyk o ekst.kh f'kV

4121.16appln

¼udk'kk½ pwdhpk o csdk;ns'khj cuowu 'kklukph lq/nk Qlo.kwd dsyh T;k ckcr izLrwr 'ksr feGdrhps izdj.kkr Hkfo";kr fcu'ksrh ijokuk ns.;kr vkY;kl ftYgkf/kdkjh tGxkao ;kaph lq/nk Qlo.kwd dj.;kpk n[kyik= xqUgk o vijk/k dsY;keqGs fQ;kZnhl vkjksih fo:/n lnjhy [kktxh [kVyk nk[ky djkok ykxr vkgs-"

7. Upon careful reading of the

allegations in the first information report,

and more particularly, the aforesaid

allegations, it cannot be said that, the acts

which are alleged of preparation of false

documents and forging government record is a

part of official duty of the applicants. As

held by the Supreme Court in the case of P.K.

Pradhan (supra) even during the trial, the

question of requirement of sanction for

prosecution can be raised at any time after

cognizance of the offence is taken, may be

even at the time of conclusion of trial or

after conviction. The Hon'ble Supreme Court

has consistently taken a view that, no doubt,

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under Section 482 of the Code of Criminal

Procedure, the High Court has inherent power

to quash the criminal proceedings in an

appropriate cases, even in those cases which

are not compoundable. However, this power is

to be exercised sparingly and with caution.

The Bombay High Court bench at Aurangabad in

unreported judgment in the case Alka Udhav

Khaire and others V/s State of Maharashtra

and another in Criminal Application No.4878

of 2016 decided on 17th April, 2017, while

considering the similar facts situation, did

frame two questions. The question no.1 is in

relation to take the prior sanction before

the prosecution of public service, which is

reproduced hereinbelow :-

"[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 ?"

4121.16appln

8. While examining the said issue,

after adhering to the judgments in the cases

of Shambhunath Vs. State of Uttar Pradesh 4,

Rajib Ranjan and others Vs. R. Vijay Kumar5,

Punjab State Warehousing corporation Vs.

Bhushan Chander and others6 and Prakash Singh

Badal Vs. State of Punjab7 has taken a view

that, 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 Investigating Officer against the

applicants into the matter and at the stage

of prayer for quashing the first information

report, it is not appropriate to quash the

entire proceedings for want of prosecution

sanction.