Shailesh S/O Harish Kulkarni vs State Of Maharashtra, Through ...
2017 Latest Caselaw 8439 Bom

              APL670.15.odt                                                                            1/14

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    NAGPUR BENCH : NAGPUR.

                             CRIMINAL APPLICATION (APL) NO.670 OF 2015

                APPLICANT:                                       Shailesh   S/o   Harish   Kulkarni,   aged
                (Ori. Complainant)                               about   53   years,   Occupation-Business,
                                                                 R/o 14, West High Court Road, Shankar
                                                      Nagar, Nagpur-440 010.
                                                                                           
                                  
                                                           -VERSUS-


               NON-                                 1.          State   of   Maharashtra   through   P.S.O.
               APPLICANTS:
                                                                Sadar, Nagpur.
               Ori. Accused No.1                    2.          Shri   H.   P.   Tripathi,   Ex-Senior   DEN
                                                                ©/SECR (NGP), now working as Project
                                                                Manager   Nagpur   Metro   Corporation
                                                      Ltd., Nagpur. 
                                                                        
                                                                                 

              Shri  V. V. Bhangde, Advocate for the applicant.
              Shri A. Madiwale, Additional Public Prosecutor for non-applicant
              no.1.
              Shri Masood Shareef, Advocate for non-applicant no.2.



                                                             CORAM: A.S. CHANDURKAR, J.

DATED: NOVEMBER 06, 2017

ORAL JUDGMENT :

1. The applicant who is the original complainant has

filed the present criminal application under Section 482 of

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the Code of Criminal Procedure, 1973 ( for short, the Code)

as he is aggrieved by the order dated 11-6-2015 passed by

the learned Additional Sessions Judge-III, Nagpur by which

the non-applicant No.2 herein stands discharged in the

complaint proceedings.

2. The facts in brief are that the complainant is a

railway contractor engaged in execution of various contracts.

In those contracts, it was stipulated that in the event of any

disputes or differences the same would be settled through

arbitration. One such dispute arose which was then referred

to the Arbitrator. According to the complainant, in those

proceedings a particular document was filed on behalf of the

Railway authorities which appeared to the complainant to be

fabricated. On that basis, a private complaint came to be

filed alleging fabrication of the documents resulting in

commission of offence under Section 193 and 204 of the

Indian Penal Code.

3. In those proceedings process came to be issued by

the learned Magistrate. The non-applicant No.2 - accused

No.1 moved an application for his discharge on the count that

no offence as alleged was made out in the complaint. Reply

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was filed by the complainant and the learned Judicial

Magistrate First Class rejected that application. The accused

No.1 being aggrieved filed a revision application under

Section 397 of the Code. The learned Judge of the Sessions

Court allowed that revision application on the ground that

though it was necessary for the complainant to have obtained

sanction under Section 197 of the Code, no such sanction was

obtained. It could not be said that there was deemed

sanction to the prosecution of accused no.1. It was also held

that there was no allegation made in the complaint against

the said accused that he had filed the alleged fabricated

document in the arbitration proceedings. On that basis said

accused came to be discharged.

4. Shri V. V. Bhangde, learned Counsel for the

complainant submitted that though the complainant had

applied for grant of sanction under Section 197 of the Code,

in the facts of the case no such sanction was required to be

obtained. Relying upon the judgment of the Hon'ble

Supreme Court in Inspector of Police and another vs.

Battenapatla Venkata Ratanam and another 2015(5) SCALE

253 which judgment was also relied upon before the Sessions

APL670.15.odt 4/14

Court it was submitted that though the accused no.1 had

been working as a public servant, as the allegation was with

regard to fabrication of records which was not part of his

duty, sanction was not at all necessary. It was submitted that

without properly appreciating the ratio of this decision it was

held otherwise by the learned Judge of the Sessions Court. It

was further submitted that even if the complainant had

applied for grant of sanction, the same would not preclude

the complainant from urging that sanction was in fact not

necessary to be obtained. In that regard, the learned Counsel

placed reliance on the decisions in P. Nallammal and another

vs. State (1999) 6 SCC 559, Central Council for Research in

Ayurveda and Siddha and another vs. Dr. K. Santhakumari

(2001) 5 SCC 60 and State of Rajasthan and another vs.

Surendra Mohnot and others (2014) 14 SCC 77. It was then

submitted that necessary allegations were made in the

complaint alleging commission of offence of fabrication by

the accused no.1. The learned Judge of the Sessions Court

misconstrued the averments in the complaint while holding

otherwise. He also submitted that there was delay on the

part of the learned Judge of the Sessions Court in deciding

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the discharge application. He referred to the Roznama and

submitted that though the learned Counsel for the parties had

been heard, the proceedings were unnecessarily adjourned

for passing the final order. This delay was unwarranted

especially when the relevant case law was also placed on

record. For said purpose, the learned Counsel placed reliance

on the decision in Joint Commissioner of Income Tax Surat vs.

Saheli Leasing and Industries Limited (2010) 6 SCC 384 and

submitted that even on this ground the impugned order was

vitiated.

5. Shri Masood Shareef, learned Counsel for the non-

applicant no.2 - accused no.1 supported the impugned order.

According to him, it was rightly found by the Sessions Court

that in the entire complaint there were no allegations of

fabrication of records at the instance of the accused no.1. It

was rightly found that in absence of such allegation the

accused no.1 was entitled for discharge. He referred to the

averments made in the complaint to substantiate his

submissions. It was then submitted that the accused no.1

having acted in discharge of his duty, it was necessary for the

complainant to have obtained necessary sanction under

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Section 197 of the Code. The complainant was aware of this

position and had therefore, applied for grant of sanction.

Having done so, it was not now permissible to contend that

such sanction was not necessary. It was urged that the

accused no.1 was entitled for necessary protection and

absence of such sanction entitled the accused to be

discharged. It was also submitted that the complainant had

approached this Court praying that necessary directions be

issued to the concerned Authority for granting sanction to the

prosecution of the accused. Those proceedings, however,

were not decided in favour of the complainant. In these

facts, it was submitted that there was no question of any

deemed sanction and on account of absence of sanction the

accused was entitled for discharge. In support of his

submissions, the learned Counsel placed reliance on the

decisions in General Officer Commanding, Rashtriya Rifles vs.

Central Bureau of Investigation and another (2012) 6 SCC

228, Sankaran Moitra vs. Sadhna Das and another (2006) 4

SCC 584, L. Narayana Swamy Vs. State of Karnataka and

others (2016) 9 SCC 598, State of UP vs. Parasnath Singh

(2009) 6 SCC 372 and Sunil S/o Ramrao Paraskar Vs. State of

APL670.15.odt 7/14

Mah. and others 2006 (6) Mh.L.J. 690.

6. Shri A. Madiwale, the learned Additional Public

Prosecutor for the non-applicant no.1 supported the

impugned order.

7. I have heard the learned Counsel for the parties

and with their assistance, I have perused the material placed

on record.

Perusal of the complaint filed by the applicant

herein indicates that during the course of arbitration

proceedings a document at Annexure-XIII which was a letter

addressed to the complainant was sought to be relied upon

alongwith a postal receipt to indicate its dispatch to the

complainant. These original documents were produced by

one Shri Sanjeev Kumar which were examined by the

complainant as well as Members of the Arbitral Tribunal.

According to the complainant, the said document appeared to

be a fabricated document. In paras 4 and 6 of the complaint,

it is stated that the accused with intention and common

knowledge used that document to make a show that the same

has been dispatched when in fact that document was not

dispatched but some other document was so dispatched.

APL670.15.odt 8/14

According to the complainant, these acts were done

knowingly and deliberately by the accused. Hence, as per the

complaint, the accused had knowingly and deliberately

fabricated and produced false documentary evidence.

8. On reading of the entire complaint, it can be seen

that according to the complainant, the act of using the

registered post receipt of another document to prove the

dispatch of letter dated 24-3-2003 was a fraudulent act done

knowingly by the accused. On the basis of the averments

made in the complaint it can be said that the necessary

averments concerning the accused were present therein. The

learned Judge of the Sessions Court while considering this

aspect of the matter has observed in para 22 of the order that

there was no allegation against the accused no.1 that he had

filed the alleged document in the arbitration proceedings. On

the contrary, it was pleaded that the said document was filed

by one Shri Sanjeev Kumar. As per the complaint, the

complainant was aggrieved by the act of the accused of

fabricating the document with the intention of using the

same as documentary evidence before the Arbitral Tribunal.

The reference to the document being filed before the Arbitral

APL670.15.odt 9/14

Tribunal by Shri Sanjeev Kumar was merely stated as a fact.

Said Shri Sanjeev Kumar was not an accused and the prima

facie allegations of knowingly and deliberately fabricating

that document were levelled against the accused. In that

view of the matter, I find that the learned Judge of the

Sessions Court erred in observing that there was no

allegation against the accused no.1 with regard to that

document. Merely because that document was tendered by

Shri Sanjeev Kumar, the same was not a reason to hold that

the accused no.1 was not alleged to be connected with it.

These observations in the impugned order are therefore liable

to be set aside.

9. In so far as the aspect of grant of sanction is

concerned, the complainant in para 9 has pleaded that he

had sought permission from the Competent Authority on

three occasions but there was no communication in that

regard by the said Competent Authority. On that basis it was

pleaded that sanction was deemed to have been granted by

the Competent Authority.

Under Section 197 (1) of the Code, no Court can

take cognizance of an offence alleged to be committed by a

APL670.15.odt 10/14

public servant while acting or purporting to act in the

discharge of his official duty. The aspect of sanction goes to

the jurisdiction of the Court inasmuch as taking of cognizance

itself of such offence is barred in absence of sanction. The

Constitution Bench of the Hon'ble Supreme Court in Matajog

Dobey V. H. C. Bhari, AIR 1956 SC 44 has held that the Court

is required to see if it could take cognizance of the case

without previous sanction. For this purpose, the Court has to

find out if the act complained of was committed by the

accused while acting or purporting to act in the discharge of

official duty. Thus unless the Court comes to the conclusion

that sanction is either required or otherwise it cannot be said

that the jurisdictional aspect has been considered by the

Court. It is well settled that in the matter of jurisdiction, the

parties cannot confer the same on the Court. It is for the

Court concerned to at least prima facie come to the

conclusion that it has jurisdiction to proceed with the matter.

When the question as regards requirement of previous

sanction arises, it has to examine as to whether previous

sanction is necessary or not while taking cognizance.

10. In the present case, according to the complainant

APL670.15.odt 11/14

such sanction was necessary and despite attempting to seek

the same there was no communication in that regard. Hence,

according to the complainant, sanction was deemed to have

been granted. On the other hand, according to the accused

such sanction having been sought and the same not having

been granted, the cognizance of the offence in question could

not have been taken. The learned Judge of the Sessions Court

in this regard proceeded on the basis that it was an admitted

fact that sanction to prosecute the accused was necessary but

the same was not filed on record. It ought to have seen that

what was admitted was that sanction had been sought by the

complainant but the same had not yet been received.

Though there cannot be any deemed sanction

under Section 197 of the Code, the question that was

required to be examined by the Court as a jurisdictional

question was whether in the facts of the case such sanction

was necessary or not. According to the complainant, in view

of the decision in Inspector of Police and another (supra), such

sanction was not necessary. Though it is true that the

complainant had averred that sanction was necessary, it was

open for him to contend that on a correct application of legal

APL670.15.odt 12/14

precedent such sanction was in fact not necessary. As held in

P. Nallamal and another, Central Council for Research and

Surendra Mohnot and others (supra) a concession made on a

legal proposition can be resiled from. In my view, irrespective

of the stand taken as regards requirement of sanction, the

Court ought to have addressed itself to that issue and ought

to have independently come to the conclusion that previous

sanction in the facts was either required or not. Accepting

the stand of a party either way would amount to abdicating

the examination of the jurisdictional question.

11. In the present case I find that the learned Judge of

the Sessions Court has not addressed himself to the question

as to whether in the facts of the case sanction was necessary

or not before proceeding with the complaint. The learned

Judge of the Sessions Court ought to have independently

examined the said matter and should have come to a

conclusion that sanction was either necessary or not

necessary in the facts of the case. He however proceeded on

the basis that as sanction was sought and there was no order

granting such sanction, the cognizance of the complaint was

barred. By adopting this course, the Sessions Court failed to

APL670.15.odt 13/14

examine the juridisctional aspect as regards requirement of

sanction. On this count, I find that the impugned order is

liable to be set aside.

12. Though it is true that the complainant had filed

Criminal Writ Petition No.380/2014 praying that the

Competent Authority be pleased to accord sanction which

proceedings came to be withdrawn with liberty to renew the

request after which Writ Petition No.2560/2015 was filed

seeking similar relief which proceedings were dismissed for

want of prosecution, said proceedings do not further the case

of either party. The question as regards requirement of

sanction is still unanswered.

13. As the impugned order suffers from non-

consideration of the question as to the requirement of

sanction, I find that the proceedings deserve to be re-

examined by the Sessions Court. The parties would have to

address the Sessions Court on that aspect. I therefore do not

deem it necessary to refer to the decisions relied upon by the

learned Counsel for the parties on the question of

requirement of sanction or otherwise. The aspect of delay in

deciding the proceedings by the Sessions Court has not

APL670.15.odt 14/14

vitiated the proceedings as urged.

14. In view of aforesaid, the following order is passed:

(1) Order dated 11-6-2015 passed in Revision

Application No.402/2012 is set aside.

(2) The revision application is restored to the file of

the Sessions Court. The Sessions Court shall reconsider the

revision application as well as the question as to whether

sanction under Section 197 of the Code is necessary or not in

the facts of the case. It is clarified that this question shall be

considered on its own merits without being influenced by any

observations made in this order.

(3) The parties shall appear before the Sessions Court

on 8-1-2018 and the Sessions Court shall decide the

proceedings expeditiously in accordance with law.

(4) At this stage, the learned Counsel for the non-

applicant no.2 seeks stay of the effect and operation of this

order. As the parties have been directed to appear on

8-1-2018, the stay as sought stands granted.

JUDGE

/MULEY/