Fulsing S/O Bhaulal Bahure vs The State Of Maharashtra
2017 Latest Caselaw 2829 Bom

                                   1                             Cri.A-5393-16-I




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

              CRIMINAL APPLICATION NO. 5393 OF 2016


 Fulsing S/o Bhaulal Bahure,
 Age: 56 years, Occu: Government Service,
 R/o: Office of the Assitant Registrar of
 Co-operative Societies, Vaijapur,
 Dist. Aurangabad.                                           ...APPLICANT

          versus

 1.       The State of Maharashtra,
          Through the Superintendent of
          Police Aurangabad.

 2.       Laxmikant S/o Raghunath Ambekar,
          Age: Major, Occ. Service,
          R/o: Tahsil Office, Paithan,
          Tq. Paithan, Dist. Aurangabad.                   ...RESPONDENTS

                               .....
 Mr. S.G. Ladda, Advocate for applicant
 Mr. P.G. Borade, APP for Respondent No.1 - State
 Respondent No. 2 - Served
                                .....


                                       CORAM :   S.S. SHINDE AND
                                                 K.K. SONAWANE, JJ.

                               RESERVED ON :     6th APRIL, 2017.

                           PRONOUNCED ON:        7th June, 2017.


 ORAL JUDGMENT :- ( Per : K.K. Sonawane, J.)

1. Rule. Rule made returnable forthwith. Heard finally, with

consent of the parties.

2 Cri.A-5393-16-I

2. The applicant taking recourse of section 482 of the Criminal

Procedure Code (for short "Cr.P.C.") preferred the present

application with following prayer:

"B. The FIR bearing Crime No. I-302/2016 U/Sec. 464, 465, 468, 470, 471, 472, 473 R/W 34 of the I. P. Code and also all further criminal proceedings taken-up on the basis of the said FIR both be quashed and set aside: and"

3. It is the case of the prosecution that, there was an election

of Agricultural Produce Market Committee, Paithan (for short

"APMC") for the year 2016-2017 to 2021-2022. Accordingly,

programme of election was declared by notification dated

29-06-2016. The applicant was appointed as Returning Officer for

conducting election. Moreover, one Shri L.M. Kasar was also

appointed as Assistant Returning Officer for aforesaid election.

The applicant was the Assistant Registrar, Co-operative Societies,

Vaijapur, District Aurangabad. It has been alleged that as per

election programme, the candidates presented their nomination

forms for contesting the elections from the constituency reserved

for economic weaker section. There were in all six persons, who

filled in nomination forms including persons, namely, Atmaram

Rakhamji Thorat, Mohan Asaram Maske, Jaising Budha Chavan

and Krishna Jagannath Laghane. As per requirement, vide

3 Cri.A-5393-16-I

notification dated 29-06-2016, all these certificates were

essential to produce to show that they are members of economic

weaker section. These certificates were issued by the office of

Tahsildar, Paithan. The scrutiny of the nomination forms were

carried out by applicant - Returning Officer. After scrutiny, the

list of name of candidates was published and all these six persons

including aforesaid four persons were declared as candidates to

contest the election from the constituency reserved for economic

weaker section. Meanwhile, on 30-07-2016 person, namely,

Bapusaheb Bhimrao Kadam filed application to the concerned

Tahsildar Paithan and requested to procure documents of

certificates of the candidates issued by Tahsil Office showing

them as member of economic weaker section. He requested to

verify its genuineness and truthfulness. The concerned Tahsildar

had issued letter for production of certified copies of economic

weaker section Certificates furnished by these four candidates

alongwith their nomination forms. Accordingly, relevant

documents were forwarded to the Tahsildar for further enquiry.

It was transpired that the certificates furnished by persons,

Atmaram Rakhamaji Thorat, Mohan Asaram Maske, Jaising Budha

Chavan and Krishna Jagannath Laghane, all were forged and

fabricated documents. These certificates were not issued at all by

the office of Tahsildar, Paithan. Therefore, concerned Tahsildar

directed the applicant to initiate penal action against miscreants.

4 Cri.A-5393-16-I

But, the applicant did not proceed further, eventually, one Mr.

Laxmikant Raghunath Ambekar Senior Clerk of Tahsil office

Paithan filed the First Information Report (for short "FIR") against

alleged miscreants as well as the persons, who were running the

E-Service Centre and issued these bogus certificates to these

candidates. There are also allegation against the applicant about

the dereliction in official duty for initiating penal action against

the miscreants. It has been alleged that the applicant

intentionally for the sake of miscreants, did not take prompt

action against them and he is also involved in this crime.

Therefore, FIR came to be registered against the applicant and

others under section 464, 465, 468, 470, 471 and 472 read with

section 34 of the Indian Penal Code ( for short "IPC") and set the

criminal law in motion.

4. Being aggrieved by, the registration of crime on the false

accusation, applicant approached to this Court invoking, inherent

jurisdiction of this court under section 482 of the Cr.P.C. to

redress his grievance. The applicant prayed to set aside and

quash the impugned FIR bearing Crime No. I-302 of 2016

registered against him at Police Station, Paithan, District

Aurangabad.

5. The learned counsel Mr. Ladda, for the applicant

vehemently submitted that applicant has no concern at all with

5 Cri.A-5393-16-I

the alleged crime. He is innocent and unnecessarily, he has been

embroiled in this false case. He submitted that no case is made

out against the applicant. The impugned FIR is an abuse of

process of law. According to learned counsel, applicant during the

relevant period, was the Assistant Registrar, Co-operative

Societies, at Vaijapur, and completed his 25 years stint without

any stigma. He was appointed as Returning Officer on 29-06-

2016 to conduct the election of APMC, Paithan. The election

programme was declared, and nominations were to be presented

upto 13-07-2016. The scrutiny of the nomination forms was to

be carried out on 16-07-2016, and, valid list of nominations was

to be published on 18-07-2016 and in case any appeal, final date

for publication of list, was fixed as 30-07-2016. The learned

counsel Mr. Ladda added that as per election programme, the

applicant received six nomination forms to contest the election

from the constituency reserved for economic weaker section.

Pursuant to scheduled programme of the election, scrutiny of

nomination forms were carried out and list of nominations was

published, wherein six candidates were allowed to contest the

election from the constituency reserved for the member of

economic weaker section.

6. According to learned counsel, during scrutiny of nomination

forms or up till final date of publication of list of valid

6 Cri.A-5393-16-I

nominations, there were no any objection raised on behalf of

candidates, who were present at the time of scrutiny of

nomination forms nor any Government personnels made attempt

to bring to the notice of the applicant that impugned certificates

were forged and fabricated. Therefore, there was no any reason

for the applicant to have any doubt about the genuineness or

otherwise of any such certificates. Thereafter, on 30-06-2016,

concerned Tahsildar issued letter and asked for production of

copies of certificates of candidates, who were contesting election

from constituency reserved for member of economic weaker

section. Accordingly, applicant immediately on 02-08-2016

forwarded all the relevant certificates to the concerned Tahsildar

for further process. However, it was informed by letter dated

05-08-2016 that out of six certificates, five certificates were

forged and fabricated one and same were not issued by the

concerned Tahsil Office. It was also directed to initiate penal

action against miscreants.

7. Mr. Ladda, learned counsel fervidly contends that impugned

letter of the Tahsildar was received by the applicant on 06-08-

2016 in the evening and applicant was in dilemma and confused

state of mind pertains to his locus standi to lodge FIR into the

matter. According to learned counsel, offence came to be

committed relating to the documents issued by the office of

7 Cri.A-5393-16-I

Tahsildar Paithan. Therefore, concerned Tahsildar, Paithan has an

obligation to lodge the FIR. But, he directed the applicant to take

steps for initiating penal action against the miscreants. The

learned counsel Mr. Ladda has given much more emphasis on the

conduct and demeanour of Tahsildar and submits that till FIR

there were no any grievance against the applicant, but later-on

concerned Tahsildar embroiled the applicant in this crime on the

accusation that applicant failed to take prompt steps at the

earliest for penal action against the miscreants. Learned counsel

Mr. Ladda, drawn attention towards the letter issued by the

applicant to the District Government Pleader for opinion in

regard to lodging the FIR on his behalf or on the part of

concerned Tahsildar against the miscreants. Meanwhile,

impugned FIR came to be lodged at the instance of concern

Tahsildar against the miscreants.

8. It has been submitted that considering the factual aspect

there was no any ill intention of the applicant to shield the

miscreants for committing offence. The allegations against the

applicant are only to the extent that he has not taken any steps

for lodging the FIR against miscreants, and on the basis of these

facts, no any offence is made out against applicant. He has been

falsely implicated in this case. Learned counsel Mr. Ladda

explained the circumstances in detail. He has also given

8 Cri.A-5393-16-I

emphasis on the relevant provisions of the Maharashtra

Agricultural Produce Marketing (Development and Regulation)

Rules, 1987 ( for short "Rules of 1987") and submitted that once

the list of valid nomination was published after its scrutiny in

such circumstances, the applicant being Returning Officer has no

legal right to initiate enquiry about the genuineness or

truthfulness of the impugned certificates for penal action against

the miscreants. Hence, he requested to quash and set aside the

impugned FIR filed against applicant, which is an abuse of

process of law. He prayed to allow the application.

9. The learned APP vociferously opposed the submission

canvassed on behalf of applicant. He submitted that concerned

Tahsildar vide his letter dated 05-08-2016 given information to

the applicant that the certificates being members of economic

weaker section produced with nomination forms in the election

process were forged and fabricated one. These certificates were

not at all issued by the office of Tahsildar Paithan. The

documents of Certificates are illegal and fabricated one.

Therefore, he directed the applicant to initiate penal action

against the miscreants as the miscreants used the spurious

documents for the purpose of election, which is to be held under

the supervision of applicant. But, applicant did not take any

prompt action to initiate penal action against the miscreants. It

9 Cri.A-5393-16-I

is evident from the conduct and demeanour of the applicant that

he with malafide intention to shield the miscreants avoided to

initiate penal action against them. Hence, the applicant has been

arraigned as accused in this crime. According to learned APP,

prima facie there are circumstances on record to make out the

case against the applicant. Therefore, it would not just and

proper to quash and set aside the impugned FIR registered

against the applicant. Hence, he prayed for dismissal of

application.

10. We have given anxious consideration to the submissions

canvassed on behalf of both sides at length. We have also delved

into the relevant documents produced on record. Admittedly, the

applicant is arraigned as an accused in the impugned crime on

the accusation of dereliction while discharging the official duty.

According to prosecution, instructions were given to the applicant

by the concerned Tahsildar to initiate penal action against the

miscreants, for mischief to produce forged and fabricated

document of certificates being member of economic weaker

section for election process. It has been pretended that these

documents were issued by the Government Authority i.e. Tahsil

Office, Paithan. But, after due enquiry, it was transpired that, the

impugned certificates were not at all issued by the office of

Tahsildar, but the same were forged and fabricated by concerned

10 Cri.A-5393-16-I

candidates in connivance with persons, who were looking after

and running the Maharashtra E-Service Centre. According to

concerned Tahsildar, the spurious documents were attempted to

use by the miscreants during the course of election process of the

APMC Paithan. The applicant was the Returning Officer of the

concerned election of APMC, Paithan. Therefore, it was

obligatory for the applicant to take steps for penal action against

the miscreants. But, he failed to discharge his duty to initiate

prompt action against miscreants. Therefore, the concerned

Tahsildar drawn adverse inference against the bade his

subordinate Shri Laxmikant Ambekar, Senior Clerk of Tahsil

Office, Paithan to lodge complaint against miscreants, including

the applicant. Accordingly, first informant, Shri Ambekar lodged

the impugned FIR, the sustainability and propriety of which is

agitated by the applicant in this application.

11. It is the settled rule of law that jurisdiction under Section

482 of Cr.P.C. has to be exercised very sparingly and with great

deal of caution. It has been delineated that in exercise of its

jurisdiction the High Court is not to examine the matter

superficially but it is essential to be seen that the criminal

proceedings are not a short-cut of other remedies available in

law. Undisputedly, the inherent powers under Section 482 of the

Cr.P.C. has to be exercised to prevent abuse of process of any

11 Cri.A-5393-16-I

court of law, or otherwise to secure the ends of justice. In the

case of State of Karnataka Vs. L. Muniswamy, reported in

1977 Cri.L.J. 1125, the Hon'ble Supreme Court has laid down

that in the exercise of the wholesome powers under Section 482

of the Code, the High Court is entitled to quash a proceeding if it

comes to the conclusion that allowing the proceeding to continue

would be an abuse of process of the court of law or that the ends

of justice require that the proceedings are to be quashed.

12. In the matter of State of Haryana vs. Ch. Bhajanlal and

others AIR 1992 SC 604, in para.104, it has been observed as

below :-

104. Speaking for the Bench, Ranganath Mishra, J. as he then was in Madhavrao Jiwaji Rao Scindia V. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 : (AIR 1988 SC 709) has expounded the law as follows : (at p.711 of AIR)

" The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice is permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a

12 Cri.A-5393-16-I

case also quash the proceedings even though it may be at a preliminary stage."

13. In the instant case, as referred supra, there is an

accusation against the applicant, only in regard to dereliction in

official duty. It was informed to the applicant that the miscreants

committed mischief and played fraud during the election process.

Despite the same, applicant did not take action with due diligence

at the earliest and remained idle. Hence, adverse inference was

drawn against the applicant which resulted into implicating the

applicant in this case. In view of nature and gravity of allegations

nurtured against the applicant, it is imperative to ascertain the

genuineness and veracity of the accusation case against applicant

and its repercussion by requisite enquiry. It is true that the

Hon'ble Apex Court in the case of "State of Haryana V/s

Bhajanlal reported in AIR 1992 SC 604 has delineated the

guidelines in paragraph No. 10 as below:

"109. We also give a note of caution to the effect that the power of quashing a criminal proceeding 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 FIR 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."

13 Cri.A-5393-16-I

14. Keeping in view the aforesaid guidelines of the Apex Court,

in the instant matter, it would imperative to appreciate the

documents uncontroversial in nature produced on record to

ascertain genuineness and veracity of the accusation made

against applicant. These documents are letter correspondence

exchange in between revenue authority and the office of

applicant. In case an appreciation of these documents

uncontroversial in nature if it is found that accusation against

applicant are unsustainable and improbable, there would not be

any impediment to proceed further for appreciation of these

documents, while exercising the powers under section 482 of the

Cr.P.C., to meet the ends of justice and to prevent abuse of

process of law. It would profitable to take recourse of the

observations of Their Lordships of Apex Court in the matter of

Anita Malhotra Vs. Apparel Export Promotion Council and

another, reported in (2012)1 SCC 520, in paragraph No. 20 of

said Judgment it has been observed as below:

"20. As rightly stated so, though it is not proper for the High court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code."

14 Cri.A-5393-16-I

In view of aforesaid observations, we do not find any legal

impediment to appreciate the documents placed on record to

ascertain genuineness and truthfulness of the allegations

nurtured against the applicant about dereliction in his official

duty.

15. As referred supra, applicant was the Returning Officer to

conduct the elections of APMC Paithan for the period 2016-2017

to 2021-2022. The election programme was declared as per

notification dated 29-06-2016. According to election

programmable, nomination forms were to be presented uptil

13-07-2016 and the scrutiny was to be held on 16-07-2016.

Thereafter, it was directed to publish the list of valid nominations

of the candidates on 18-07-2016 and in case of any appeal final

date for publication was given as 30-07-2016. It is not put into

controversy that during the course of scrutiny of the nomination

forms or uptil publication of list of valid nominations by the

applicant - Returning Officer no one else raised the objections

pertaining to the genuineness or truthfulness of the impugned

certificates. It is also transpired from the letter correspondence

that uptil issuance of letter dated 05-08-2016 on the part of

concerned Tahsildar there was no communication to the

applicant being Returning Officer of the elections of APMC

Paithan that the impugned certificates which were produced

15 Cri.A-5393-16-I

accompanied with nomination forms by the candidates were

spurious one. Therefore, as these certificates were seen issued

by the office of Tahsildar, Paithan there was no reason for the

applicant being Returning Officer to suspect about its

genuineness. Therefore he proceeded further and published the

final list of valid nomination as per rules prescribed under the

law. Moreover, this factual aspect is also not put in controversy

on behalf of respondent.

16. The attending circumstances reflects that after receipt of

letter dated 05-8-2016 the applicant made endeavour to procure

opinion of the concerned District Government Pleader in regard

to his locus standi to initiate criminal action against the

miscreants. It is fact that uptil 11-08-2016, he did not receive

any communication from the concerned AGP and eventually, he

directed his subordinate i.e. Assistant Returning Officer Shri

Kasar to lodge FIR as per directions of the concerned Tahsildar

vide letter dated 05-08-2016. In the meantime, the impugned

FIR came to be filed by one Mr. Ambekar, Senior Clerk of the

concerned Tahsil Office, Paithan for the penal action against

miscreants including applicant.

17. Intense scrutiny of the factual scenario categorically

adumbrates that the applicant had no role to play for procuring

the forged and fabricated revenue document under seal and

16 Cri.A-5393-16-I

signature of the concerned Tahsil Office, Paithan. But the

allegations are in regard to failure to initiate prompt action

against the miscreants as per directions of the Tahsildar vide

letter dated 05-08-2016. There are no circumstances on record

to doubt about the integrity of the applicant a responsible

Government Personnel. It would hard to believe that there was

ill-intention or malafide intention of applicant for not taking

prompt steps with due diligence to initiate penal action against

the miscreants. It would also fallacious to blame the applicant as

an accomplice of other miscreants who played mischief of forgery

in this crime. We are of the opinion that in case of negligence or

misconduct in official duty, as alleged, the departmental enquiry

against the applicant would be an proper remedy to penalise the

applicant. But it would unjust and improper to take such harsh

and drastic measures of lodging criminal proceeding against the

Government Servant like applicant. It appears that initiating

criminal proceeding against applicant is absurd and abuse of

process of law. There are no incriminating circumstance on

record to point out malafide or ill intention of the applicant to

facilitate or shield the miscreants in this crime. We find force in

the submission advanced on the part of learned counsel Mr.

Ladda that there were no allegation against applicant in the

letter dated 05-08-2016 issued by the concerned Tahsildar. But

subsequently the concerned Tahsildar drawn adverse

17 Cri.A-5393-16-I

interference and bade his subordinate Shri Ambekar, Senior

Clerk to figure the applicant as one of the accused in this crime.

The action of concerned Tahsildar appears to be unsustainable

and incomprehensible one. It is preposterous to draw adverse

inference against applicant only for the reason that he failed to

comply with directions of the learned Tahsildar for initiation of

penal action against miscreants at the earliest.

18. At this juncture, the submissions of learned counsel

Mr. Ladda appears to be considerable one as offence committed

pertains to revenue documents and therefore the learned

Tahsildar would have to file FIR for penal action against the

miscreants instead of giving directions to the applicant. The

attending circumstances on record if considered minutely reflects

that there was an attempt to pass buck for lodging FIR against

the miscreants who have politically personalities. Therefore, the

applicant cannot be blamed alone for delay in initiating penal

action against miscreants. The revenue personnel and applicant

made endeavour to escape from act to bell the cat. In such

peculiar circumstances, ultimately, the applicant cannot be made

scapegoat in the case. In view of the category of cases by way

of illustration given by the Apex Court in Bhajanlal's case

referred supra, we are of the opinion that allegations made in the

FIR against the applicant if are taken at its face value and

18 Cri.A-5393-16-I

accepted in its entirety, do not prima facie constitute any

offence. Moreover, allegations appears to be made in the FIR do

not disclose any cognizable offence to justify an investigation by

the Police Officer under Cr.P.C.. But impugned FIR against the

applicants for the accusation made in it appears absurd and

abuse of process of law. Therefore, we do not find any

impediment to exercise the extraordinary jurisdiction to quash

and set aside the impugned FIR involving the applicant in this

crime. We are of the opinion that, in case, there was any

negligence or dereliction in official duty or misconduct as alleged

on the part of applicant, action to initiate departmental enquiry

would sub-serve the purpose. But, in view of gravity of

allegations in the present matter, the drastic and harsh action of

initiating penal proceeding against Government servant seems

not amenable to penalise the applicant.

19. In view of the aforesaid discussion, the Criminal

Application stands allowed. Rule is made absolute in terms of

prayer clause "B". The impugned FIR is hereby quashed and set

aside to the extent of applicant only. Criminal Application stands

disposed of accordingly.

                   Sd/-                                        Sd/-
       [ K. K. SONAWANE, J.                            [ S.S. SHINDE, J.]

 MTK