Bombay High Court
Yogiraj Dattatraya Deshpande And ... vs The State Of Maharashtra And Anr on 3 August, 2017
Bench: T.V. Nalawade
Criminal W.P.No.381/2006 with
connected petitions
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.381 OF 2006
1. Shri Prashant Sureshrao Suryawanshi,
Age 33 years, Occu. Tahsildar,
Ambajogai, R/o Tahsil Office,
Ambajogai, District Beed.
2. Shri Sujit Angadrao Narhare,
Age 27 years, Occu. Naib Tahsildar,
R/o Tahsil Office,
Ambajogai, District Beed. ... PETITIONERS
VERSUS
1. The State of Maharashtra
(Copy to be served on Addl. P.P.,
High Court of Bombay,
Bench at Aurangabad)
2. Shyam Balkrushna Sailukar,
Age 57 years, Occu. Service & Agril.,
R/o Deshpande Galli,
Ambajogai, District Beed. ... RESPONDENTS
.....
Shri Mukul Kulkarni, Advocate for petitioners
Shri S.W. Munde, A.P.P. for respondent No.1./State
Shri S.S. Chapalgaonkar, Advocate for respondent No.2
.....
WITH
CRIMINAL WRIT PETITION NO.382 OF 2006
1. Shri Prashant Sureshrao Suryawanshi,
Age 33 years, Occu. Tahsildar,
Ambajogai, R/o Tahsil Office,
Ambajogai, District Beed.
2. Shri Sujit Angadrao Narhare,
Age 27 years, Occu. Naib Tahsildar,
R/o Tahsil Office,
Ambajogai, District Beed. ... PETITIONERS
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Criminal W.P.No.381/2006 with
connected petitions
2
VERSUS
1. The State of Maharashtra
(Copy to be served on Addl. P.P.,
High Court of Bombay,
Bench at Aurangabad)
2. Shyam Balkrushna Sailukar,
Age 57 years, Occu. Service & Agril.,
R/o Deshpande Galli,
Ambajogai, District Beed. ... RESPONDENTS
.....
Shri Mukul Kulkarni, Advocate for petitioners
Shri S.W. Munde, A.P.P. for respondent No.1./State
Shri S.S. Chapalgaonkar, Advocate for respondent No.2
.....
WITH
CRIMINAL WRIT PETITION NO.383 OF 2006
1. Yogiraj s/o Dattatraya Deshpande
Age 53 years, Occu. Service.
2. Digambar s/o Nagorao Deshpande,
Age 58 years, Occu. Pensioner
3. Vimlakar s/o Nagorao Deshpande,
Age 49 years, Occu. Service.
All R/o Kakajiwada, Deshpande Galli,
Tq. Ambajogai, District Beed. ... PETITIONERS
VERSUS
1. The State of Maharashtra
(Copy to be served on Addl. P.P.,
High Court of Bombay,
Bench at Aurangabad)
2. Shyam Balkrushna Sailukar,
Age 57 years, Occu. Service & Agril.,
R/o Deshpande Galli,
Ambajogai, District Beed. ... RESPONDENTS
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Criminal W.P.No.381/2006 with
connected petitions
3
.....
Shri A.M. Gaikwad, Advocate for petitioners
Shri P.G. Borade, A.P.P. for State
Shri S.S. Chapalgaonkar, Advocate for respondent No.2
.....
CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
Date of reserving judgment : 24th July, 2017.
Date of pronouncing judgment : 3rd August, 2017
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. These three petitions are filed for quashment of order
passed by Judicial Magistrate, first Class, Ambajogai, dated
21/6/2006, in Criminal M.A. No.161/2006, under Section 156(3)
of the Code of Criminal Procedure, directing P.I., Ambajogai
Police Station to register crime and investigate the same and to
file report as per Section 156(3) of the Code of Criminal
Procedure. Petitioners No.1 and 2 in Criminal Writ Petition
No.381/2006 and 382/2006 are non-applicants No.1 and 2 and
petitioners No.1 to 3 in Criminal Writ Petition No.383/2006 are
non-applicants No.3 to 5 in Criminal M.A. o.161/2006.
Respondent No.2 in all the petitions is original complainant.
Respondent No.1 is the State of Maharashtra.
2. Facts leading to institution of these petitions are that,
respondent No.2 filed Criminal Complaint before the Judicial
Criminal W.P.No.381/2006 with
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Magistrate, First Class, Ambajogai, which was registered as
Criminal M.A. No.161/2006 against the petitioners for the
offences punishable under Sections 166, 167, 177, 182, 193 and
218 read with Section 34 of the Indian Penal Code. Petitioners
No.1 and 2 in Criminal Writ Petition No.381/2006 and 382/2006
were the Tahsildar and Naib Tahsildar respectively, working at
Tahsil Office, Ambajogai at the relevant period. Contention of
complaint is that, late Radhabai Govindrao Deshpande was owner
of agricultural land bearing Survey No.70, situated at Mouze
Kodri, and after her death, under her registered last Will dated
29/12/1989, the complainant and his brother became the
exclusive owners of that land. Father of non-applicant No.3
namely Dattatraya Manohar Deshpande filed Regular Civil Suit
No.283/1990 agianst Radhabai and the complainant, challenging
the validity of the Will Deed executed by Radhabai. Their suit
was dismissed and even the Civil Appeal No.136/1998 preferred
against that decree was dismissed by Additional District Court,
Ambajogai on 27/1/2006. After the death of Radhabai, name of
the complainant was recorded in the record of rights of the above
said lands on the basis of her Will. However, as that mutation
was objected by Dattatraya Deshpande, the said matter was
challenged up to Additional Divisional Commissioner,
Aurangabad. On 31/5/2002, the Additional Divisional
Commissioner directed the litigating parties to get decided their
Criminal W.P.No.381/2006 with
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rights from the Civil Court, and till final decision of Civil Court,
the disputed mutation was kept in abeyance. Learned Additional
Divisional Commissioner directed that, after decision of Civil
Court, mutation be recorded as per the directions of Civil Court.
However, after decision of Civil Appeal No.136/1998, when
complainant submitted fresh application to Talathi, Kodri for
recording his name in record of right of the disputed land, in
accordance with decree passed in his favour, said proposal for
mutation was forwarded to Tahsildar, Ambajogai. However, on
the basis of representation of non-applicants No.3 to 5
(petitioners in Criminal Writ Petition No.383/2007, the Tahsildar
and Naib Tahsildar avoided to record mutation entry in favour of
the complainant. Therefore, complainant submitted application
to higher revenue authorities, and on 2/5/2006 Collector, Beed
directed the Sub-divisional Officer, Ambajogai to record the
mutation entry on the basis of decision of the Civil Court.
However, even thereafter, non-applicants No.1 and 2 (petitioners
in Criminal Writ Petition No.380/2006 and 381/2006) with
malafide intention, refused to record the mutation entry in favour
of the complainant. Therefore, the complainant was constrained
to file the criminal complaint. According to complainant, he has
already filed application before competent revenue officer for
sanction of prosecution of non-applicants No.1 and 2 Tahsildar
and Naib Tahsildar.
Criminal W.P.No.381/2006 with
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3. After filing of this complaint, learned trial Court, on
21/6/2006, passed one line order :
"P.I. Ambajogai to register crime, investigate the
same and file report as per Section 156(3) of the
Code of Criminal Procedure."
4. On the basis of this order, crime is registered against
the petitioners, therefore, this order of registration of the crime is
challenged by petitioners on the ground of lack of sanction for
prosecution of petitioners No.1 and 2 in Criminal Writ Petition
No.381/2006 and 382/2006, who are public servants, as well as
on the ground that, no criminal offence is made out against any
petitioner who acted in bonafide manner as Second Appeal is
preferred by petitioners before the High Court against the decree
passed by Additional District Judge, Ambajogai. Learned
Additional Divisional Commissioner had directed the petitioners
to keep the mutation entries in abeyance till final decision of the
Civil Court. Therefore, as the matter is pending before High
Court, the petitioners kept the mutation entry pending in
compliance with the directions of Additional Divisional
Commissioner, Aurangabad.
5. Learned Advocate for the petitioners raised objection
that, petitioners being public servants, for their prosecution
Criminal W.P.No.381/2006 with
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previous sanction under Section 197 of the Code of Criminal
Procedure is necessary. The second objection raised by learned
Advocate for the petitioners is that, the learned Magistrate
passed order under Section 156(3) of the Code of Criminal
Procedure mechanically and without application of mind. Such
order is illegal in the eye of law.
6. In reply, learned Advocate for respondent No.2
submitted that, at the pre-cognizance stage i.e. while passing
order under Section 156(3) of the Code of Criminal Procedure,
sanction under Section 197 of the Code of Criminal Procedure is
not necessary. He placed reliance on K. Kalimuthu Vs. State
reported in 2005 CRI.L.J. 2190 (SC), wherein Apex Court
observed in paras 15 and 16 as under :
"15. The question relating to the need of
sanction under Section 197 of the Code is not
necessarily be considered as soon as the
complaint is lodged and on the allegations
contained therein. This question may arise at
any stage of the proceeding. The question
whether sanction is necessary or not may have
to be determined from stage to stage. Further,
in cases where offences under the Act are
concerned the effect of Section 19, dealing with
question of prejudice has also to be noted.
16. Therefore, we do not find any infirmity in
the judgment of the High Court declining to
consider the applicability of Section 197 of the
Code at the present juncture. It is open to the
appellant to raise that question if occasion so
arises at an appropriate stage during trial."
Criminal W.P.No.381/2006 with
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7. Regarding non-application of mind, while passing
order under Section 156(3) of the Code of Criminal Procedure,
the learned counsel for respondent No.2 submitted that, there
was no need to apply mind to the facts of the case while passing
order under Section 156(3) of the Code of Criminal Procedure,
i.e. directions to the police to conduct the investigation and
submit report.
8. Learned Advocate for the petitioners has drawn our
attention to the case of Maksud Saiyed Vs. State of Gujarat &
ors. reported in (2008) 5 SCC 668, wherein Apex Court
examined the requirement of the application of mind by
Magistrate before exercising jurisdiction under Section 156(3)
and held that, where a jurisdiction is exercised on a complaint
filed in terms of Section156(3) or Section 200 Cr.P.C., the
Magistrate is required to apply his mind in such a case. The
application of mind by Magistrate should be reflected in order.
The mere statement that he has gone through the complaint,
documents and heard the complainant, as such, will not be
sufficient. After going through the complaint, documents and
hearing the complainant, what weighed with the Magistrate to
order investigation under Section 156(3) of the Code of Criminal
Procedure should be reflected in the order, though a detailed
Criminal W.P.No.381/2006 with
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expression of his views is neither required nor warranted. This
law is also followed by Apex Court in Anil Kumar & ors. Vs.
M.K. Aiyappa & anr. reported in AIR 2014 SC (Supp) 1801.
9. After going through the above cited two authorities
by the petitioner, the legal position has become absolutely clear
that, before passing order under Section 156(3) of the Code of
Criminal Procedure, the Magistrate should apply his mind to the
facts of the case and such application of mind should be reflected
in his order. However, in the present matter, the order passed
by learned Magistrate is one line order, which is reproduced as
under :
"P.I. Ambajogai to register crime, investigate the
same and file report as per Section 156(3) of the
Code of Criminal Procedure."
10. A bare glance at impugned order passed by learned
Judicial Magistrate, First Class, Ambajogai in Criminal M.A.
No.161/2006, makes it clear that, while passing order under
Section 156(3) of the Code of Criminal Procedure, the learned
Magistrate has not at all applied his mind to ascertain whether
cognizable offence is made out against the opponent Nos.1 to 5
or not. The order is absolutely not speaking and is an
unreasoned order. On this count alone, the impugned order
passed by learned Judicial Magistrate, First Class, Ambajogai in
Criminal M.A. No.161/2006 deserves to be set aside.
Criminal W.P.No.381/2006 with
connected petitions
11. Another important aspect is that, petitioner Nos.1
and 2 in Criminal Writ Petitions No.381/2006 and 382/2006, who
are opponent Nos.1 and 2 in Criminal M.A. No.161/2006, are
Tahsildar and Naib Tahsildar, Ambajogai respectively. Therefore,
under Section 21 12th (a) of the Indian Penal Code, these
petitioners are public servants. Being Tahsildar and Naib
Tahsildar, it was their official duty to approve or disapprove the
disputed mutation entry referred by Talathi. It is the allegation
of respondent No.2 that, these both revenue officers neglected to
approve the disputed mutation entry. Thus, obviously, both
these petitioners were acting in discharge of their official duty, as
such public servant. In the circumstances, we have to examine
whether at the time of taking cognizance under Section 156(3) of
the Code of Criminal Procedure, previous sanction of the
Government under Section 197 of the Code of Criminal Procedure
is mandatory or not.
12. Learned Advocate for the petitioners has rightly
placed reliance on"Anil Kumar Vs. M.K. Aiyappa & anr. reported
in AIR 2014 SC (Supp) 1801 (supra), wherein the Apex Court
ruled that :
"The word 'cognizance' in S.197 of Code and
S.19 of Prevention of Corruption Act (P.C. Act)
Criminal W.P.No.381/2006 with
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has a wider connotation and not merely
confined to the stage of taking cognizance of
the offence. When a Special Judge refers a
complaint for investigation under S. 156(3),
Cr.P.C., obviously, he has not taken cognizance
of the offence and, therefore, it is a pre-
cognizance stage and cannot be equated with
post-cognizance stage. When a Special Judge
takes cognizance of the offence on a complaint
presented under S.200, Cr.P.C. The next step to
be taken is to follow oup under S. 202, Cr.P.C.
Consequently, a Special Judge under P.C. Act
referring the case for investigation under
S.156(3) is at pre-cognizance stage. When a
private complaint is filed before the Magistrate,
he has two options. He may take cognizance of
the offence under S.190, Cr.P.C. Or proceed
further in enquiry or trial. A Magistrate, who is
otherwise competent to take cognizance,
without taking cognizance under S.190, may
direct an investigation under S.156(3), Cr.P.C.
The Magistrate who is empowered under S.190
to take cognizance, alone has the power to refer
a private complaint for police investigation
under S.156(3), Cr.P.C. Once in a complaint of
corruption it is noticed that there was no
previous sanction the Magistrate cannot order
investigation against a public servant while
invoking powers under Section 156(3), Cr.P.C."
Thus, the contention of learned Advocate for
respondent No.2 is not correct that at the stage of passing order
under Section 156(3) of the Code of Criminal Procedure previous
sanction under Section 197 of the Code of Criminal Procedure is
not necessary. In view of this legal position, otherwise also the
order passed by learned trial Court under Section 156(3) of the
Code of Criminal Procedure is bad in law for lack of sanction
under Section 197 of the Code of Criminal Procedure.
Criminal W.P.No.381/2006 with
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13. Learned Advocate for the petitioners tried to convince
this Court that, the petitioners No.1 and 2 are also protected
under the provisions of Judges (Protection) Act, 1995. He has
drawn our attention towards Section 2 of the Judges (Protection)
Act, which reads as under :
"2. In this Act, "Judge" means not only every person
who is officially designated as a Judge, but also every
person -
(a) Who is empowered by law to give in any legal
proceeding a definitive judgment, or a judgment which, if
not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be
definitive; or
(b) who is one of a body of persons which body of
persons is empowered by law to give such a judgment as
is referred to in Cl. (a)."
14. However, a bare glance to Section 2(a) of the Judges
(Protection) Act makes it clear that, the Tahsildar or Naib
Tahsildar are not empowered by law to give any definitive
judgment in any legal proceeding. Therefore, they cannot
become Judge within meaning of Section 2 of the Judges
(Protection) Act, 1985. Learned Advocate for the petitioners also
submitted that, the petitioners No.1 and 2 being Judges, under
Section 77of the Indian Penal Code, the act done by the Judge
while acting judicially in exercise of their powers is protected.
However, under Section 19 of the IPC, Judge is defined as "Who
is empowered by law to give, in any legal proceedings, civil or
Criminal W.P.No.381/2006 with
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criminal, a definitive judgment". However, Tahsildar or Naib
Tahsildar are not empowered by law to give in any civil or
criminal legal proceedings definitive judgment. Therefore, they
cannot be "Judge" within meaning of Section 19 of the IPC. It
follows that, protection awarded under Section 77 of the IPC will
not be available to the petitioners. In Criminal Application
No.4924/2010, decided by learned Single Judge of this Court,
the attention of the learned Single Judge was not drawn towards
the definition of "Judge" under Section 19 of the IPC. Therefore,
with great respect, we do not agree with proposition laid down
by learned Single Judge.
15. However, as observed above, as the impugned order
passed by Judicial Magistrate, First Class, Ambajogai is bad on
account of non-application of mind as well as lack of previous
sanction under Section 197 of the Criminal Procedure Code,
these all petitions deserve to be allowed.
16. Before parting with the judgment, we must point out
that, the respondent No.2 filed criminal complaint which was
referred by investigation to the police under Section 156(3) of
the Code of Criminal Procedure, for commission of the offence
punishable under Sections 166, 167, 177, 182, 193, 218 read
with Section 34 of the Indian Penal Code. Learned trial Court
Criminal W.P.No.381/2006 with
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failed to consider that the petitioners in Criminal Writ Petition
No.383/2006 are private persons and Sections 166 and 167 of
the IPC are applicable only in respect of public servant
disobeying law or framing an incorrect document with intent to
cause injury to any person. Thus, obviously, the petitioners in
Criminal Writ Petition No.383/2006 (original opponents No.3 to
5) are not within the sweep of Sections 167 and 167 of the IPC.
17. The remaining Sections 177, 182 and 193 of the IPC
are regarding contempts of lawful authority of public servant.
Section 195(1) of Criminal Procedure Code has provided bar for
taking cognizance of the offences punishable under Sections 172
to 188 and 193 to 196 of the IPC unless the complaint in writing
is filed by the concerned public servant or authorised officer of
the Court. Obviously, complainant is not public servant or
authorised officer of the Court. Therefore, in view of Section
195(1)(a) and (b) of the Code of Criminal Procedure, Court
cannot take cognizance of such offences on complaint filed by
private person. Section 218 of the IPC is altogether different
Section, which reads as under :
"218. Public servant framing incorrect record or
writing with intent to save person from punishment or
property from forfeiture:- Whoever, being a public
servant, and being as such public servant, charged with
the preparation of any record or other writing, frames that
record or writing in a manner which he knows to be
Criminal W.P.No.381/2006 with
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incorrect, with intent to cause, or knowing it to be likely that
he will thereby cause, loss or injury to the public or to any
person, or with intent thereby to save, or knowing it to be
likely that he will thereby save, any person from legal
punishment, or with intent to save, or knowing that he is
likely thereby to save, any property from forfeiture or other
charge to which it is liable by law, shall be punished with
imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
Classification of offence :- The offence under this section
is cognizable, bailable, non-compoundable and triable by
Magistrate of the first class."
18. It is not the case of complainant that petitioners
being public servant, prepared incorrect record with intent to
save person from punishment. Therefore, otherwise also,
Section 218 of the IPC will not be at all applicable in the present
matter. Otherwise also, no offence is made out against the
original opponents No.3 to 5 who are petitioners in Criminal Writ
Petition No.383/2006. On that count also, Criminal Writ Petition
No.383/2006 deserves to be allowed.
19. Accordingly, we have come to the conclusion that,
the impugned order passed by learned Judicial Magistrate, First
Class, Ambajogai in Criminal M.A. No.161/2006 under Section
156(3) of the Code of Criminal Procedure is bad in law and
consequently, offence registered against the petitioners at Police
Station, Ambajogai is illegal and deserves to be quashed and set
aside. We hold that, all these Criminal Writ Petitions deserve to
be allowed. Hence the following order :
Criminal W.P.No.381/2006 with
connected petitions
ORDER
(i) Criminal Writ Petitions No.381/2006, 382/2006 and
383/2006 are allowed.
(ii) The impugned order passed by Judicial Magistrate, First
Class, Ambajogai in Criminal M.A. No.161/2006, dated
21/6/2006 and order passed by Additional Sessions
Judge, Ambajogai below Exh.1 in Misc. Cri. Rev.
No.55/2006, dated 23/6/2006 are quashed and set
aside.
(iii) F.I.R. in Crime No.3/2006, registered at Police Station,
Ambajogai is quashed.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
