Bombay High Court
Mohammad Abdul Arif vs The State Of Maharashtra And ... on 29 August, 2017
Bench: S.S. Shinde
446.17.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 446 OF 2017
Mohammad Abdul Arif,
Age : 53 years, Occ : Service,
Serving as Divisional Joint Registrar,
Co-operative Societies, Mumbai,
R/o : 6th Floor, Malhotra House,
CST, Mumbai.
PETITIONER
-VERSUS-
1. The State of Maharashtra,
Through its Secretary,
Home Department,
Mantralaya, Mumbai.
2. The Police Inspector,
Deopur Police Station,
Tq. & Dist. Dhule.
3. Ashok S/o Shravan Patkar,
Age : 61 years, Occu : Journalist,
R/o : 17, Patkar Nagar,
Deopur, Dhule, Dist. Dhule.
RESPONDENTS
...
Mr. V.D. Salunke holding for Mr.A.D. Shinde,
Advocate for for petitioner.
Mr. V.M. Kagne, APP for Respondent/State.
Mr. C.R. Deshpande, advocate for Respondent
No.3.
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
446.17.WP.odt
Reserved on : 19.07.2017
Pronounced on : 29.08.2017
JUDGMENT: (Per S.S.Shinde, J.):
Rule. Rule made returnable forthwith
and heard finally by consent of the parties.
2. This Petition is filed with the
following prayer :-
"B. By appropriate writ, order or
direction in the like nature the
impugned FIR bearing Cr. No. 14/2017
dated 28.02.2017 registered with
Police Station, Deopur, Dhule for the
offences punishable under sections
406, 409, 417, 418, 420, 467, 468, 471
and 120-B r/w section 34 of the Indian
Penal Code and sections 3 and 4 of the
Maharashtra Protection of Interest of
Depositors (in Financial
Establishment) Act, 1999 registered
pursuant to the order dated 28th
February, 2017 passed by the learned
Additional Sessions Judge, Dhule in
Cri. M.A. No.22 of 2017 may kindly be
quashed and set aside."
446.17.WP.odt
3. Learned counsel appearing for the
petitioner submits that, the petitioner is a
Divisional Joint Registrar, Co-operative
Societies and presently working at Mumbai.
The petitioner was transferred as Divisional
Joint Registrar, Co-operative Societies at
Nashik on 23rd May, 2013. Learned counsel
submits that, in pursuance to the report of
the auditor i.e. the District Special Auditor
Class-I, Co-operative Societies, the
petitioner on 10th November, 2015 and 1st
December, 2015 had directed the said Auditor
to lodge the first information report against
the erring Office bearers of one Dadasaheb
Waman Vishnu Sinkar Nagari Sahkari Patsanstha
Maryadit, Dhule. It is submitted that,
despite the directions being given on 10th
November, 2015 and 1st December, 2015 for
taking steps to lodge the first information
report, respondent no.2 issued a notice dated
21st April, 2016 addressed to the petitioner
446.17.WP.odt
as to why the first information report has
not been lodged against the erring office
bearers and also threatened to lodge the
first information report against the
petitioner.
4. Learned counsel submits that, the
petitioner on 30th May, 2016 replied the said
notice by pointing out to respondent no.2
that, the petitioner has already issued
directions to the District Special Auditor
Class-I to lodge the first information report
against the erring office bearers, and
therefore, the notice issued by respondent
no.2 is totally baseless. It is submitted
that, on 30th May, 2016, the petitioner came
to be transferred as Divisional Joint
Registrar, Co-operative Societies, Mumbai
from the office of the Divisional Joint
Registrar at Nashik. It is submitted that, it
appears that, in pursuance to the directions
446.17.WP.odt
issued by the successor of the petitioner to
change Special Auditor, Co-operative
Societies, on 20th August, 2016 the Special
Auditor has lodged a complaint against the
erring office bearers. In pursuance to the
complaint lodged by the Special Auditor dated
20th August, 2016, on 29th September, 2016 a
F.I.R. came to be registered by Deopur Police
Station, Dhule against the erring office
bearers bearing Crime No. 92/2016 for the
offences punishable under sections 420, 465,
466, 467, 471 and 342 of the IP Code as well
as under sections 3 and 4 of the MPID Act.
5. Learned counsel appearing for the
petitioner submits that, by suppressing all
these facts, it appears that Respondent No.2
in the month of February, 2017 appears to
have filed an application under Section
156(3) of the Code of Criminal Procedure
before the Sessions Judge, Dhule seeking
directions to lodge the first information
446.17.WP.odt
report against the erring office bearers
including the petitioner, who is shown as
accused no.13 in the said application. The
Additional Sessions Judge without following
the guidelines issued by the Hon'ble Apex
Court in the case of Priyanka Shrivastava V/s
State of Uttar Pradesh1 have passed the
order under section 156(3) of the Cr.P.C.
directing to lodge first information report
against the erring office bearers of the said
society as well as the petitioner on 28th
February, 2017. Learned counsel submits that,
in pursuance to the order dated 28th February,
2017 passed by the Sessions Judge, the first
information report No. 14/2017 came to be
lodged on the same day i.e. on 28th February,
2017 for the offences punishable under
Sections 406, 409, 417, 418, 420, 467, 468,
471, 120-B read with section 34 of the I.P.
Code and sections 3 and 4 of the MPID Act.
1 (2015) 6 SCC 287
446.17.WP.odt
6. Learned counsel submits that,
admittedly, the petitioner is a public
servant within the meaning of section 161 of
the Maharashtra Co-operative Societies Act,
1960, which specifically states that, all the
Registrars working under the Maharashtra Co-
operative Societies Act, 1960 are public
servants. Learned counsel further submits
that, as per the amendment, wherein proviso
has been appended vide Maharashtra Amendment
dated 30th August, 2016 to the provisions of
Section 156(3) of the Cr. P.C., the very
passing of the order under section 156(3) of
the Cr.P.C. is bad in law, without there
being sanction under section 197 of the
Cr.P.C. as the proviso by way of Maharashtra
Amendment added to section 156(3) bars taking
of cognizance under section 156(3) in absence
of sanction under section 197 of the Cr.P.C.
In support of this contentions, learned
counsel pressed into service the judgment of
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the Supreme Court in the case of Anilkumar
and others V/s M.K. Ayappa2 and the judgment
of Division Bench of the Bombay High Court at
Principal Seat in Criminal Writ Petition
No. 4765 of 2014 and other connected matters
decided on 9th October, 2015), wherein the
High Court has held that, in absence of
sanction, either the Magistrate or the
Special/Designated Judge have no jurisdiction
to pass an order under section 156(3) of the
Cr.P.C.
7. Learned counsel appearing for the
petitioner submits that, thus the very
initiation of proceedings by the Additional
Sessions Judge against the petitioner under
Section 156(3) of the Cr.P.C. without there
being sanction itself vitiates, and
therefore, the first information report No.
14/2017 also stands vitiated and is liable to
be quashed and set aside, as the allegations
2 2013 AIR SCW 5570
446.17.WP.odt
made in the first information report relates
to the act of the petitioner while
discharging his duty and during the course of
his official duty. Learned counsel submits
that, even vague allegations are made against
the petitioner in the first information
report and the same does not spell out any
offence or crime as the only allegation made
against the petitioner in the complaint is
that the petitioner has not taken timely
action against the erring officers of the
said society and there is no offence made out
at all and therefore, from that point of view
also the impugned order Cr.No. 14/2017 is
liable to be quashed and set aside so far as
the petitioner is concerned.
8. Learned counsel appearing for the
petitioner submits that, since the facts in
respect of filing of first information report
by the petitioner against the erring office
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bearers of the society on 29th September, 2016
suppressed by respondent no.2 while obtaining
an order under section 156(3) of the Cr.P.C.
itself goes to show that the complaint as
well as first information report filed
against the petitioner is tainted with
malafides and instituted with malice and
ulterior motive and so also governed by the
guidelines nos. 1, 2, 6 and 7 in the case of
State of Haryana Vs. Bhajanlal3 and more
particularly, in para no.102 of the said
judgment of the Hon'ble Apex Court, guideline
nos. 1, 2, 6 and 7. Learned counsel appearing
for the petitioner submits that, inspite of
registration of first information report on
29th September, 2015 at the instance of the
petitioner and his successor, the complainant
has filed application under section 156(3)
suppressing the fact and misused the Court
process and unnecessarily harassed the
3 AIR 1992 SC 604
446.17.WP.odt
petitioner, hence penal action is
contemplated against the complainant.
9. Learned counsel appearing for the
petitioner submits that, the Special Judge,
who has passed the order under section
156(3), while allowing the anticipatory bail
application of the petitioner in the impugned
crime itself has realized that there is no
sanction obtained at the time of passing the
order under section 156(3), and therefore,
has granted bail to the petitioner. Learned
counsel appearing for the petitioner submits
that, considering the submissions and grounds
in the Petition, annexures thereto and notes
of arguments, the Petition may be allowed.
10. On the other hand, learned counsel
appearing for respondent no.3, relying upon
the averments made in the affidavit in reply,
submits that, there are allegations that, the
petitioner by conspiring with accused nos. 1
446.17.WP.odt
to 12 in the complaint, has put Pathpedhi to
the financial loss. Several representations
were made to the petitioner by one Shri Anil
Shirude, as well as respondent no.3, but he
avoided to take any action. It is submitted
that, the petitioner did not act diligently.
He invites our attention to the allegations
in the first information report as against
the petitioner and submits that, the Petition
may be rejected.
11. We have carefully considered the
submissions advanced by learned counsel
appearing for the petitioner, learned A.P.P.
appearing for the respondent/State and
learned counsel appearing for respondent
no.3. With their able assistance, we have
perused the allegations in the first
information report against the petitioner and
also the investigation papers and other
material placed on record.
446.17.WP.odt
12. At the outset, it would be relevant
to mention that, the very learned Judge, who
passed the order and directed the
investigation against the petitioner, himself
while considering the application for
anticipatory bail, granted anticipatory bail
on the ground that before prosecuting the
petitioner, the sanction from the Competent
Authority is not taken. Apart from it, the
fact that the petitioner is public servant is
not in dispute.
13. Upon careful perusal of the
allegations made against the petitioner in
the first information report, it appears
that, those alleged acts attributed to him
are related to the part of his official duty
or in relation to discharge of his official
functions. The question raised in this
Petition that, before prosecuting the public
servant i.e., petitioner in the present case,
sanction from the Competent Authority was
446.17.WP.odt
necessary, is no longer res integra and
answered by the Bombay High Court at
Principal Seat in the case of Mr. Debashish
Chakrabarty and The State of Maharashtra and
other in Criminal Writ Petition No.4765 of
2014 and other connected matters (decided on
9th October, 2015), wherein the view is taken
that, if the acts or omissions attributed to
the public servant are while discharging the
official duties, in that case to prosecute
such public servant sanction from the
Competent Authority is necessary. Admittedly,
in the present case, the impugned order
passed to the extent of petitioner, is
without considering the requirement in law,
in as much as, to prosecute the petitioner,
there is no valid sanction from the Competent
Authority.
14. In that view of the matter, without
entering into the merits of the allegations
446.17.WP.odt
made against the petitioner in the first
information report, the F.I.R. bearing C.R.
no.14 of 2017 dated 28th February, 2017
registered with Police Station Deopur, Dhule
for the offences punishable under sections
406, 409, 417, 418, 420, 467, 468, 471 and
120-B read with section 34 of the Indian
Penal Code and sections 3 and 4 of the
Maharashtra Protection of Interest of
Depositors (in Financial Establishment) Act,
1999 registered pursuant to the order dated
28.02.2017 passed by Additional Sessions
Judge, Dhule in Criminal M.A. No. 22 of 2017,
deserves to be quashed and accordingly the
same is quashed and set aside qua the
petitioner.
15. Rule made absolute accordingly. The
Petition is allowed in the above terms and
the same stands disposed of.
446.17.WP.odt
An observations made hereinbefore
are confined to the case of the petitioner
and consequently restricted to adjudication
of present petition only.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
SAG
