Bombay High Court

Suryakant S/O Damodhar Landge And ... vs The State Of Maharashtra And ... on 6 March, 2017

Bench: S.S. Shinde

                                                             6014/16
                               -1- 


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

              CRIMINAL APPLICATION NO. 6014 OF 2016

 1.       Suryakant S/o Damodhar Landge,
          Age : 35 years, Occu - Agril. & Service,

 2.       Damodhar S/o Haribhau Landge,
          Age : 65 years, Occu - Agril.,

 3.       Bhaskar S/o Vishwanath Thombre,
          Age : 55 years, Occu - Agril.,

 4.       Narayan S/o Laxman Garde,
          Age : 55 years, Occu - Agril.,

 5.       Ratan S/o Bhanudas Thombre,
          Age : 57 years, Occu - Agril.,

 6.       Bhagwat S/o Kundlik Thombre,
          Age : 55 years, Occu - Agril.,

 7.       Babasaheb S/o Ramrao Thombre,
          Age : 55 years, Occu - Agril.,
          All R/o : Undri, Tq. Kaij,
          District : Beed.
                                               ...APPLICANTS

          Versus

 1.       The State of Maharashtra,
          Through Secretary,
          Home Department,  
          Mantralaya, Mumbai.

 2.       The Police Inspector,
          Police Station Yusuf Wadgaon,
          Tq. Kaij, Dist. Beed.

 3.       Trimbak S/o Pandharinath Thombre,
          Age : 65 years, Occ : Agri.
          R/o - Undri, Tq. Kaij,
          District. Beed.
                                          ...RESPONDENTS

::: Uploaded on - 06/03/2017          ::: Downloaded on - 08/03/2017 01:04:13 :::
                                                                      6014/16
                                      -2- 

                            ...
         Advocate for applicants: Mr.B.A. Dhengle 
       APP for Respondent/State : Mr. S.B. Yawalkar
  Advocate for respondent no.3 : Mr. S.G. Kawade holding 
                  for Mr. R.T. Deshmukh  
                            ...
                     CORAM : S.S. SHINDE & 
                             K.K. SONAWANE, JJ.

RESERVED ON : 24th February, 2017 PRONOUNCED ON : 6th March, 2017

JUDGMENT : (PER S.S. SHINDE, J)

Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. The brief facts as disclosed in the

application, are as under:-

(a) The trust namely Shiv Chhatrapati

Sarwjanik Wachanalay at Village Undari, Tq. Kaij,

Dist. Beed (Hereinafter referred to as "the said

Trust") came to be registered bearing registration

No. F-707/Beed on 29th August, 1985 under the

provisions of Bombay Public Trust Act, 1950

(Hereinafter referred to as "the B.P.T. Act"), and

also under the Societies Registration Act, 1960.

Respondent No.3 was the President, applicant No.2

6014/16

was the Secretary and applicant no.3 to 7 were the

office bearers/members of executive committee of

the said trust since the date of its registration

up to the year 2007. That, applicant No.1 was

appointed as a Librarian of Granthalay by the

existing body at the relevant time by following the

due procedure of law and by passing resolution

dated 4th April, 2001. There was no election

conducted of the said trust till the year 2007 and

the earlier body was looking after the day today

affairs of the said trust.

(b) Respondent No.3 was the President of the

said trust, however, he was not interested to

conduct the elections and also he was never acting

for the benefit of trust, on the contrary he was

trying to create obstacles in the smooth

functioning of the said trust. As there was no

election conducted since beginning, though the

bylaws of the said trust provides 3 years period

for holding the elections of the executive

committee, therefore, applicants No. 2 to 7 and

others have conducted the election of the above

6014/16

trust and Change Report No. 813 of 2007 was

submitted for its approval before the Assistant

Charity Commissioner, Beed. As the name of

respondent No.3 has been removed from the Executive

Committee of the Trust, as per the newly election

held in the year 2007 and when Change Report No.813

of 2007 is submitted for its approval to the

Assistant Charity Commissioner, Beed, later on

respondent No.3 illegally submitted the another

Change Report No.1073 of 2007 showing the alleged

election of the Executive Committee conducted by

his group, and both the Change Reports are pending

for its approval before the Assistant Charity

Commissioner, Beed.

cause has filed application under section 41-E of

the B.P.T. Act before Joint Charity Commissioner,

Latur seeking injunction against the present

applicants raising false allegations against the

applicants regarding misappropriation and mis-

utilization of the trust fund. The said

application came to be rejected by the Joint

6014/16

Charity Commissioner, Latur by its order dated 21 st

December, 2012 holding that, there is no material

filed on record by respondent No.3 to prove the

said allegations. On the contrary the present

applicants have placed on record the certified

copies of audit report at Exh. 26 upto the year

2010 and also copy of Exh.27 showing details of

funds received and the expenditure made by them.

The applicant/respondent No.3 herein failed to

prove the case for granting injunction by

exercising powers under section 41-E of B.P.T. Act.

The said order has not been cancelled or set aside

by any superior court so far.

(d) Respondent No.3/complainant again made

some complainant to the Assistant Director of

Library Region, Aurangabad and pursuant to that,

the enquiry was conducted by the District

Granthalay Officer, Beed. The allegation raised by

the complainant/respondent No.3 regarding the

resolution dated 4th April, 2001 passed by the

Executive Committee of the Trust thereby appointing

applicant No.1 as a Liberian is/was illegal and

6014/16

further applicant No.1 was taking education at Beed

at Sawarkar College and thereafter, Vasant College

at Kaij respectively, at the relevant time, and

therefore, his appointment was bogus etc was turned

down and rejected by the order dated 2nd December,

2015.

(e) All the efforts made by the complainant

i.e. respondent No.3 by filing false complainants

before the Joint Charity Commissioner and the

Assistant Director of Librarian for causing

harassment to the present applicants are failed,

therefore, again he filed the false Criminal

Private complainant on 30th August, 2016 under

sections 406, 408 & 468 of IPC before the Judicial

Magistrate, First Class, Kaij alleging the same

allegations which were raised before the Joint

Charity Commissioner, Latur by filing application

under section 41-E of B.P.T. Act. It has been

falsely stated that, the appointment of applicant

No.1 is made illegally by applicant No. 2 to 7 in

collusion by passing false resolution dated 4th

April, 2001. It has been further alleged that, the

6014/16

applicant No.1 was taking the education at the

relevant time at Beed and Kaij and attending the

College during the period from 2001 to 2004. It

has been further alleged that, applicant Nos.1 to 7

in collusion with each other withdrawn the amount

of Rs. 72,000/- during the said period by preparing

false records. The Judicial Magistrate, First

Class, Kaij passed the order on 29 th September,

2016 thereby directing investigation under Section

156(3) of IPC to the Police Station Yusuf Wadgaon.

(f) Pursuant to the order passed by the

Judicial Magistrate, First Class, Kaij, the

concerned police of respondent No.2 straightway

registered the First Information Report bearing

crime No.156 of 2016 as against the applicants

under Sections 406, 408 and 468 of IPC, without

making enquiry in the matter. The concerned police

have not made any investigation as provided under

Section 157 of the Criminal Procedure Code. The

concerned police have just reproduced the contents

of the private complainant filed by the complainant

before the Judicial Magistrate, First Class, Kaij

6014/16

as it is and have falsely registered the above

referred crime. The registration of FIR against

the applicants on the basis of false allegations

which relates back to 15 years back and similar

allegations were raised before the Joint Charity

Commissioner, Latur and also before Assistant

Director Library Region Aurangabad and the same

were rejected. The act of concerned police thereby

registering the crime against the applicants is

abuse and misuse of process of law and powers and

same resulted into miscarriage of justice and

harassment of applicants unnecessarily. Therefore,

the applicants have filed the present Criminal

Application for quashing the F.I.R.

3. The learned counsel appearing for the

applicants submits that, earlier the complaint was

filed making same allegations like in the present

First Information Report, however, the said

complaint came to be rejected. It is submitted

that, the informant has no locus to lodge the first

information report. The allegations in the first

information report are relate back to the period

6014/16

from the year 2001 to 2006. The first information

report is belatedly lodged on 4th April, 2016.

There is no reason stated in the first information

report or there is no plausible explanation

offerred on record for inordinate delay in lodging

the first information report. Therefore, relying

upon the averments in the application and the

annexures thereto, the learned counsel appearing

for the applicants submits that, the first

information report deserves to be quashed.

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

respondent/State, relying upon the investigation

papers, submits that, as a matter of fact, upon

perusal of the record maintained by the

institution, it is abundantly clear that, on 3 rd

June, 2001 applicant no.1 herein sought permission

from the institution to attend the classes in the

evening and perform job of Librarian during the day

time. He used to render the services in the Library

about four to four and half hours and in the

evening he used to attend the classes in the

college. Some and substance of the investigation is

6014/16

that, applicant no.1 did work in the Library for

four to four and half hours on working days and day

on which Library was closed, he used to attend the

college for whole day. There was no overlapping in

respect of time of duties in the Library and

attending the classes in the college.

5. The learned counsel appearing for

respondent no.3 has placed reliance upon the reply

filed by respondent no.3 and submits that, as a

matter of fact, applicant no.1 did not attend the

duty and he was taking education from the academic

year 2001-2002 to 2003-2004 as a regular student

and even then in collusion with applicant nos. 2 to

7 without calling meeting prepared forged

resolution resolving that, applicant no.1 was

appointed as new Librarian, though he was not

qualified as a Librarian and was taking education

during the relevant period. He withdrew Rs.72,000/-

towards salary from 2001 to 2004. According to the

learned counsel appearing for respondent no.3 time

of college was overlapping with the timing of

library. The said Library was at village Undri and

6014/16

applicant no.1 was taking education at Beed, which

is 75 Kms. away from the village Undri.

6. Upon careful perusal of the documents

placed on record, it appears that, respondent no.3

did file the complaints before the Joint Charity

Commissioner and Assistant Director of Librarian

against the applicants and those proceedings were

entertained by the said authority in Inquiry No.12

of 2010 under Section 41-A of the B.P.T. Act. It

also appears that, there is some dispute about

which group should manage the affairs of the trust

and respondent no.3 sought injunction against the

trustees restraining them from selling the books of

the trust and also utilising the trust funds

granted by the Director Granthalaya, Aurangabad.

Therefore, the position emerges on record is that,

there is dispute in the trust and as a result,

respondent no.3 did file the Complaint bearing

R.C.C. No.290 of 2016 and in the said complaint,

the direction is given to register the first

information report against the applicants. As

already observed, the allegations relates back to

6014/16

the period from 2001 to 2004. There are also

allegations of conspiracy inter-se between the

applicants. There is mechanism provided under the

Bombay Public Trust Act and also there are other

forums and hence the criminal complaint, prima

facie, appears to be outcome of revelry between two

groups of the said trust and applicant no.1 is

implicated in the said controversy though the

allegations against him relates back to the year

2001 to 2004.

7. Upon careful perusal of the allegations in

the first information report, it appears that, the

entire allegations relates back to the period from

2001 to 2004, however, the complaint is filed in

the year 2016. There is no explanation offered by

the complainant for filing such complaint belatedly

after 12 years. Upon careful perusal of the reasons

assigned in the order passed by the Judicial

Magistrate, First Class, Kaij while issuing

direction to the Police Station Yusufwadgaon under

section 156(3) of Code of Criminal Procedure for

investigation, there are no reasons assigned except

6014/16

the alleged offences are cognizable and considering

the nature of allegations, the investigation at

the hands of Police is necessary. In view of the

exposition of law by the Supreme Court in the case

of Maksud Saiyed Vs. State of Gujrat 1 and also the

Division Bench of the Bombay High Court bench at

Nagpur in the case of State of Maharashtra V/s

Shashikant Eknath Shinde2, it is incumbent upon the

Magistrate to at last record the brief reasons

while issuing directions under section 156(3) of

the Code of Criminal Procedure for investigation by

the Police Station. In the facts of the present

case when the complaint was filed after 12 years,

the learned Magistrate ought to have been more

careful while entertaining the said complaint, and

if wanted to issue directions to the Police Station

to cause investigation, the reasons ought to have

been assigned for ordering such investigation.

8. The Supreme Court in the case of State of

Haryana V/s Bhajan Lal3 held that, in following

1 2008(5) S.C.C. 668 2 2013(4) Bom.C.R. (Cri.) 801 3 AIR 1992 SC 604

6014/16

categories the Court would be able to quash the

F.I.R.

108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying

6014/16

the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

6014/16

9. Keeping in view the investigation done by

the concerned Police Station and also filing of

belated complaint by the complainant i.e.

respondent no.3, which appears to be outcome of

vengeance by the opposite group of the trustees,

who were managing the affairs of the trust at the

relevant time of filing the complaint, in our

considered opinion, the case in hand is covered in

category no.7 of the aforesaid categories.

10. In the light of discussion in foregoing

paragraphs, the application succeeds. The Criminal