Sayyad Hifakatali Dastgir vs Lala Rajesaheb Shaikh And Others
2017 Latest Caselaw 1283 Bom

  (Order)                        (1)         Cri. Appln. No. 6613 of 2016 &
                                               Cri. Appln. No. 0368 of 2017



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
            AURANGABAD BENCH, AT AURANGABAD.       

               Criminal Application No. 6613 of 2016     

                                                  District : Latur


Sayyad Hifakatali Dastgir,
Age : 38 years,
Occupation : Private Service,
R/o. Latur,
Taluka & District Latur.                     .. Applicant. 

          versus

1. Lalasaheb Rajesaheb Shaikh,
   Age : 40 years,
   Occupation : Service 
                as Teacher,
   R/o. Nathnagar, Latur,
   Taluka & District Latur. 

2. Tabbasumbee Ismail Shaikh,
   Age : 30 years,
   Occupation : Service as
                Teacher,
   R/o. Nathnagar, Latur. 
   Taluka & District Latur. 

3. The State of Maharashtra,
   Through Police Station,
   Shivajinagar, Latur,
   District Latur.                           .. Non-applicants. 

                                 ...........

       Mr. Amit A. Mukhedkar, Advocate, for the applicant.

       Mr. V.D. Hon, Senior Advocate, with
       Mr. Vinod B. Jadhav, Advocate, for non-applicant
       nos.01 and 02.

       Mr. R.V. Dasalkar, Addl. Public Prosecutor, for
       non-applicant no.03.

                                 ...........




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   (Order)                        (2)         Cri. Appln. No. 6613 of 2016 &
                                               Cri. Appln. No. 0368 of 2017



               Criminal Application No. 0368 of 2017     

                                                  District : Latur


The State of Maharashtra,
Through Police Inspector,
Shivajinagar Police Station,      .. Applicant
Latur.                               (Original respondent)

          versus

Lalasaheb s/o. Rajesaheb Shaikh,
Age : 42 years,
Occupation : Service,                        .. Non-applicant                           
R/o. Nathnagar, Latur                           (Original accused)

                                 ...........

       Mr. R.V. Dasalkar, Addl. Public Prosecutor, for
       the applicant. 

       Mr. V.D. Hon, Senior Advocate, with 
       Mr. Vinod B. Jadhav, Advocate, for the non-applicant.

                                 ...........

                      CORAM : T.V. NALAWADE, J.
                                
                       DATE  : 30TH MARCH 2017

ORDER :

Both the applications are filed under Section 439(2) of the Code of Criminal Procedure, 1973, for cancellation of relief of anticipatory bail granted in favour of non-applicants - original accused, in respect of Crime No. 361/2016 registered with Shivajinagar Police Station, Latur. The said relief was granted by order passed on 10.11.2016, by the learned Addl. Sessions Judge, Latur, in Criminal Misc. Application (Bail) No. 395/2016.

(Order) (3) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

02. Criminal Application No. 6613 of 2016 is preferred by the applicant, who claims to be de facto complainant, seeking cancellation of pre-arrest bail granted in favour of both non-applicant nos.01 and 02

- original accused, who are President and Secretary of the so called educational institution. Criminal Application No. 0368 of 2017 is preferred by the State seeking cancellation of pre-arrest bail granted in favour of the sole non-applicant - original accused, Lalasaheb s/o. Rajesaheb Shaikh, who is the President of the educational institution.

03. Both the sides are heard.

04. The crime is registered on the basis of report given by one of the officers of the Education Department, for offences punishable under Sections 409, 406, 463, 464, 465, 415, 417, 420, 467, 468, 470, 471, read with Section 34 of the Indian Penal Code. It can be said that even Section 120B of the IPC can be used in view of nature of allegations and the material available. There is allegation that the non-applicants - accused created a record of establishment of five schools at different places from Latur District for minority community and they used this false record to get Government aid in the year 2009-10 and they actually got grant of Rs. 10,00,000/- for these schools and they misappropriated this amount of Government.

(Order) (4) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

05. Initially, private complaint was filed against the non-applicants by one Hamid s/o. Sarvar Sahab Shaikh, who was a trustee of the institution by name Janhitwadi Sevabhavi Sanstha, Latur, under which five schools are shown to be created. This Hamid had dispute with the present non-applicants and others. He had made allegation that the President Lalasaheb Shaikh had created false record of signatures of trustees for getting approval of change report with regard to the managing body of the trust in order to get control over the institution. It is alleged that the non-applicants - accused played fraud and they collected grant of Rs. 10,00,000/- by showing false record of five schools. Copy of the private complaint shows that there were allegations even against Education Officers as it was not possible to release the grant without verification of existence of such schools.

06. In the private complaint, order of investigation under Section 156(3) of the Cr.P.C. was made. After making investigation, Police filed 'C' summary report under Section 169 of the Cr.P.C., informing that it was a dispute of civil nature. Fortunately, the learned Magistrate did not accept the report and on the basis of material available, made order of issue process in the private complaint. The order of issue process is now under challenge in a revision filed by the non-applicant - accused.

(Order) (5) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

07. The Education Department then made enquiry and found that there were no such schools in existence but by creating and using false record of the schools, the management of the school had obtained Government grant and it was misappropriated.

08. Submissions made show that when order of investigation was made under Section 156(3) of the Cr.P.C. in private complaint filed by complainant Hamid s/o. Sarvar Sahab Shaikh, application for anticipatory bail was moved by present non-applicants

- accused and such relief was granted. After registration of present crime, on the basis of report of the Education Officer, again anticipatory bail application bearing Criminal Misc. Application (Bail) No. 395/2016 was filed. Learned Judge of the Sessions Court has considered the circumstance like granting of relief in the past and the technical point that present FIR can be treated as the second FIR for the same crime. Argument was advanced by the learned Senior Advocate, appearing on behalf of the non-applicants - accused, on the same point.

09. Before issuing notice, this Court had heard the arguments of applicant's side and by referring the observations made by the Hon'ble Apex Court in the case reported in (2013) 5 SCC 148 [Surender Kaushik & others Vs. State of Uttar Pradesh & others], this Court had issued notice of show cause to the non-applicants

(Order) (6) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

- accused. The Apex Court was considering the matter filed for quashing of the FIR. The Apex Court has laid down that every FIR has a different spectrum and the allegations made in the two FIRs may be distinct and separate and complainant cannot be deprived from subsequently giving report to Police or seeking direction of Magistrate under Section 156(3) of the Cr.P.C. for registration of crime in respect of his grievance.

10. On the aforesaid point, learned Senior Advocate appearing for the non-applicants - accused has placed reliance on the following reported cases :-

(1) 2001 AIR (SC) 2637 [T.T. Antony Vs. State of Kerala].

(2) 2013 AIR (SCW) 245 [Anju Chaudhary Vs. State of U.P.

& another]

(3) 2015 All.M.R.(Cri.) 3116 [Mahesh Parsram Matta Vs. State of Goa & others].

Learned Senior Advocate submitted that the Sessions Court has not committed any error in holding that the FIR given by Education Department could not have been registered and so, the Sessions Court has not committed error in holding that the previous relief granted in favour of the non-applicant - accused needs to be considered and it was in the same offence.

(Order) (7) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

11. There is no force in the submission made by the learned Senior Advocate appearing for the non- applicants - accused. Firstly, present non- applicants - accused had filed Criminal Application No. 6331 of 2016 [Lalasaheb s/o. Rajesaheb Shaikh & another Vs. The State of Maharashtra & others], under Section 482 of the Cr.P.C. for quashing of the FIR involved in the present matter. But the aforesaid contention is not accepted by the Division Bench of this Court and the said proceedings is dismissed. Secondly, the first order of issue process made by the Magistrate was at the instance of original private complainant, Hamid s/o. Sarvar Sahab Shaikh, and so, it was order of issue process in the private complaint. Though the order under Section 156(3) of the Cr.P.C. was made, the report was of 'C' summary showing that the dispute was of civil nature. Fortunately, that report is not accepted. This circumstance cannot be ignored as the dispute of the present matter is certainly not of civil nature and it is not only a dispute between trustees of the institution. The dispute amongst trustees is different and Government Department has different grievance.

12. There is misappropriation of Government money by the trustees by using false record of establishment of five schools. Aggrieved party like Education Department has certainly right to give report in this case. The possibility that the

(Order) (8) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

trustees had joined hands or they would join hands in future cannot be ruled out and, in fact, it was right of Education Department to take action as Government money has been misappropriated.

13. In view of the ratio laid down by the Hon'ble Apex Court, in the case of Surender Kaushik & others (supra), this Court holds that the FIR given by the Education Officer needs to be considered, as it is, and ignoring the previous orders made by learned Judicial Magistrate (F.C.), in view of the peculiar facts of the present matter. The FIR also shows that the accused persons will be more in numbers and sum will be different in the present crime. If the previous matter is treated as private complaint, the said matter can be clubbed with the Police case, if such Police case is filed in the present crime in view of Section 210 of the Cr.P.C.

14. The aforesaid aspects of the matter are not at all considered by learned Judge of the Sessions Court while granting relief of anticipatory bail. This Court has the power to take action suo motu also and so, even if it is presumed that the anticipatory bail was in existence in the past and the same is recognized by the Sessions Court, that relief also can be cancelled by this Court. Whether the second report can be treated as report under Section 154 of the Cr.P.C. or statement under Section 162 of the Cr.P.C., is a different matter and that cannot come

(Order) (9) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

in the way of this Court for cancelling the relief of anticipatory bail granted in favour of the non- applicants - accused. Serious offence is committed by the non-applicants - accused. Thorough investigation of such matter needs to be made. Apparently, even officers of the Education Department had joined hands with the management of the institution. Otherwise, the grant would not have been sanctioned and released in favour of the non- applicants - accused and their institution. All who were involved in this matter need to be booked and action needs to be taken against them. Unless there is custodial interrogation of the present non- applicants - accused, tracing those persons will not be possible. Therefore, this Court holds that the learned Addl. Sessions Judge has committed error in granting relief of anticipatory bail in favour of the non-applicants - accused.

15. In the result, both Applications are allowed.

The order dated 10.11.2016, passed by the learned Addl. Sessions Judge, Latur, in Criminal Misc. Application (Bail) No. 395/2016, is set aside. The relief of pre-arrest bail granted in favour of non- applicant nos.01 and 02 herein - original accused is hereby cancelled.

16. At this stage, learned Senior Advocate

(Order) (10) Cri. Appln. No. 6613 of 2016 & Cri. Appln. No. 0368 of 2017

appearing for the non-applicants - accused orally prayed that the relief of pre-arrest bail granted by the Sessions Court, in favour of the non-applicants - accused, may be continued for two weeks so as to enable them to challenge this order before the Hon'ble Apex Court.

17. The oral prayer is accepted and the relief of pre-arrest bail granted by the Sessions Court, in favour of the non-applicants - accused, shall continue to remain in force for a period of 15 (fifteen) days from today. Thereafter, it shall cease to operate automatically.

( T.V. Nalawade ) JUDGE

...........

puranik / CRIAPPLN6613.16etc