Bombay High Court
Avinash S/O Trimbakrao Dhondage vs The State Of Maharashtra And Anr on 17 November, 2017
Bench: S.S. Shinde
1 Cri.Appln.246-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.246 OF 2017
Avinash Trimbakrao Dhondage,
Age : 42 years, Occu. Service as
Executive Engineer, PWD,
Presently at Pune. ... Applicant
Versus
1. The State of Maharashtra,
Through Police Station Officer,
Shivajinagar, Nanded
Maharashtra.
2. Datta S/o Tulshiram Shembale,
Age : 44 years, Occu. Agri and Business,
R/o 133-B, Shiv Kripa Niwas,
Shobha Nagar, Nanded. ... Respondents
...
Mr. N.B.Khandare, Advocate for Applicant
Mr. S.P.Deshmukh, APP for Respondent No.1 - State
Mr. S.S.Thombre, Advocate for Respondent No.2
...
WITH
CRIMINAL APPLICATION NO.1641 OF 2017
Shankar Vitthalrao Totawar,
Age : 52 years, Occu. Government
Service, at present Executive
Engineer, at Public Works Department,
(PWD) presently posted Bhokar
R/o Shashtri Nagar,
Tq. and District Nanded. ... Applicant
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Versus
1. The State of Maharashtra,
Through Station Officer,
Shivaji Nagar Police Station,
Nanded Tq & District Nanded.
2. Datta S/o Tulshiram Shembale,
Age : 49 years, Occu. Agri and Business,
R/o 133-B, Shiv Krupa Nivas,
Shobha Nagar, Nanded. ... Respondents
...
Mr. P.G.Godhamgaonkar, Advocate for Applicant
Mr. S.P.Deshmukh, APP for Respondent No.1 - State
Mr. S.S.Thombre, Advocate for Respondent No.2
...
WITH
CRIMINAL APPLICATION NO.7063 OF 2016
Mohan Vasantrao Sangvikar,
Age : 50 years, Occu. Government Service,
As Sub Divisional Engineer at Public Works
Department, (PWD)
presently posted at Nanded,
R/o Vivek Nagar, Near Regional Work Shop,
Tq. and District Nanded. ... Applicant
Versus
1. The State of Maharashtra,
Through Station Officer,
Shivaji Nagar Police Station,
Nanded Tq & District Nanded.
2. Datta S/o Tulshiram Shembale,
Age : 49 years, Occu. Agri and Business,
R/o 133-B, Shivkrupa Nivas,
Shobha Nagar, Nanded. ... Respondents
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...
Mr. P.G.Godhamgaonkar, Advocate for Applicant
Mr. S.P.Deshmukh, APP for Respondent No.1 - State
Mr. S.S.Thombre, Advocate for Respondent No.2
...
WITH
CRIMINAL APPLICATION NO.3928 OF 2017
Deepak Shankarrao Devatraj
Age : 58 years, Occu. Govt. service,
As Deputy Engineer PWD Department,
R/o Yeshwantnagar, Nanded,
Tq. and District Nanded. ... Applicant
Versus
1. The State of Maharashtra,
Through Police Station Officer,
Shivaji Nagar Police Station,
Nanded, Tq & District Nanded.
2. Datta S/o Tulshiram Shembale,
Age : 49 years, Occu. Agri and Business,
R/o 133-B, Shivkrupa Nivas,
Shobha Nagar, Nanded. ... Respondents
...
Mr. P.G.Godhamgaonkar, Advocate for Applicant
Mr. S.P.Deshmukh, APP for Respondent No.1 - State
Mr. S.S.Thombre, Advocate for Respondent No.2
...
CORAM : S.S.SHINDE AND
MANGESH S. PATIL, JJ.
RESERVED ON : 01st November, 2017
PRONOUCED ON : 17th November, 2017
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JUDGMENT : (Per Mangesh S. Patil, J.)
:-
Rule. The Rule is made returnable forthwith.
With the consent of both the sides the matter is heard
finally.
2. In all these applications filed under Section 482 of
the Criminal Procedure Code (hereinafter referred to as
'the Cr.P.C.') the respective applicants are praying for
quashing the order passed by the learned 6th Judicial
Magistrate First Class, Nanded in Miscellaneous
Criminal Application No.367 of 2013 filed by the present
Respondent No.2 directing an inquiry to be made in
pursuance of the order passed under Section 156(3) of
the Cr.P.C. They are also seeking to quash and set aside
the FIR bearing Crime No.157 of 2013 for the offences
punishable under Sections 409, 420, 467, 468, 471, 166
and 167 read with Section 34 of Indian Penal Code
registered in pursuance of such order passed by the
learned Magistrate. Since by virtue of the same
complaint and the same order the impugned FIR has
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been registered against each of these applicants, with a
view to avoid repetition, as common questions of law
and fact arise in all these applications we propose to
decide them by this common judgment and order.
3. Shorn of unnecessary details the facts leadings to
the filing of these applications may be summarized as
under :
The applicant Shri. Avinash Trimbakrao Dhondage
in Criminal Application No.246 of 2017 was the
Executive Engineer of the Public Works Department at
Nanded at the material time. Shri. Chandrashekhar
Vasantrao Tunge was the Superintendent Engineer also
posted in the Public Works Department at Nanded. The
other applicants and few other employees of the Public
Works Department were posted in the same office at
Nanded on various posts. One Narayan Vitthalrao
Aghav was the Deputy Registrar of Co-operative
Societies posted at Nanded at the relevant time.
Respondent No.2 herein filed a complaint with the
learned Judicial Magistrate First Class by alleging that
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according to the Government norms and rules for
allotment of contracts to Labour Co-operative Societies
the Public Works Department has to forward the
proposal to the Deputy Registrar of the Co-operative
Societies. There are specific guidelines laid down by the
State Government for allocation of such work. After
following such procedure the Deputy Registrar of the
Co-operative Societies recommends to the Executive
Engineer and accordingly the Public Works Department
enters into a work contract with such societies whose
names are recommended. He further alleged that in
utter disregard to such Government guidelines and
norms the applicant Avinash Dhondage and all other
applicants prepared a bogus recommendation letter
dated 27.01.2010 and allocated work by executing
agreement. Without their being any reference to such
recommendation in the meeting of the concerned
committee dated 27.01.2010 the work was allocated by
fabricating the recommendation letter. Similarly, by
indulging in forgery several other contracts were also
allocated to few Co-operative Societies by resorting to
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under hand dealings. The works which were actually
got done could not have been got done from such
Labour Co-operative Societies and thus, he alleged that
all these applicants and the proposed accused in
furtherance of their common intention committed
forgeries, used the forged documents and have
committed criminal breach of trust.
4. The learned Magistrate apparently found
substance in the allegations and by the impugned order
directed an investigation into the complaint. The order
reads as under :
Order below Exh.1 in Oth.Misc.Cri.Appln. No.367/2013
Date : 23.09.2013
01 - Perused the petition and documents annexed
herewith. Heard the ld. advocate for the petitioner. After
having perusal of the petition it appears that the
petitioner has made allegation of cognizable offence
against the accused. Compliance of Sec.154 is seen. The
ld. Advocate for petitioner has submitted that mere
application of Sec.156(3) of Cr.P.C. Is maintainable.
02- The ld. Advocate for petitioner is relied upon
Panchabhai Butani
& others vs State of Maharashtra
2010 ALL
MR (Cri) 244 . In this case Hon'ble Bombay
High Court discuss the law relating to sec.156(3) of
Cr.P.C. The ld. Advocate for petitioner submitted that the
accused No.1 to 14 in their common intention committed
misappropriation of the Government funds therefore
investigation is necessary.
03- After considering the allegation of the application,
application prima facie disclose the cognizable offences,
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8 Cri.Appln.246-17.odt
therefore detail investigation through police agency is
required. Hence, report u/sec.156(3) of Cr.P.C. will have
to be called. Hence, the order.
O R D E R
1) Application is allowed.
2) The Police Station Shivajinagar, Nanded is
hereby directed to investigate the matter
and submit the report U/sec.156(3) of
Cr.P.C.
3) The copy of complaint and writ of this
order be sent to concerned police station
by maintaining the original for Court
records.
4) Pronounced in the open court.
Sd/-
Dated:23-09-2013. (K.S.Suryawanshi)
6th Judicial Magistrate, F.C.,
Nanded.
In accordance with such order, the police have
registered the impugned FIR and the investigation is in
progress.
5. It is necessary to note, at this juncture that there
is a chequered history to this litigation. We are only
reproducing the facts which are relevant to resolve the
present controversy. Earlier, all these applicants had
preferred Writ Petitions invoking inherent powers in this
Court under Section 482 of the Cr.P.C. for quashing the
very same order and the FIR registered on that basis.
9 Cri.Appln.246-17.odt
The preliminary objection was raised on the ground that
the inherent powers vested in this Court under Section
482 of the Cr.P.C. cannot be invoked when a specific
remedy is available under Section 397 of the Cr.P.C. to
challenge the impugned order and the FIR. By the
judgment and order dated 21.10.2015 a Division Bench
of this Court concluded that the inherent powers of this
Court under Section 482 of the Cr.P.C. could not have
been invoked in view of the remedy of revision available
under Section 397 of the Cr.P.C. Against such order the
applicants approached the Supreme Court. However,
the Special Leave Petitions were dismissed and
ultimately the applicants were granted liberty to
approach the High Court in view of the principle of law
rendered by the Supreme Court in the case of Prabhu
Chawla Vs. State of Rajasthan [(2016) 16 SCC 30]
holding that the inherent powers of the High Court
under Section 482 of the Cr.P.C. are plenary in nature
and are not restricted by availability of remedy under
Section 397 of the Cr.P.C. It is in pursuance of such
development that the present applications have been
10 Cri.Appln.246-17.odt
filed. Obviously, we need not delve any more as regards
the issue regarding maintainability of these applications
on this count. We, therefore, are proceeding to decide
these applications on merits.
6. We have heard the learned Advocates for the
applicants. According to them, the impugned order
suffers from the vice of non-application of mind. The
learned Magistrate has not assigned any reason for
passing the impugned order and has straight way
directed an investigation by invoking the power under
Section 156(3) of the Cr.P.C. For this sole reason, the
impugned order is liable to be quashed and set aside.
The learned Advocates also submitted that the
department has already conducted a detailed
administrative inquiry when a complaint was lodged
with the Chief Engineer, Aurangabad. The
Superintending Engineer has after a detailed inquiry
found that there were no irregularities in allocation of
the contracts. The conclusion was duly approved by the
Chief Engineer as well as the State Government.
11 Cri.Appln.246-17.odt
However, Respondent No.2 is bent upon to harass all
the public servants. The PIL filed by him was rejected
on merits. He has mala fide filed an application with the
police and on the preliminary inquiry the police did not
find any substance and refused to register the offence.
Soon thereafter, with a view to harass the applicants, he
has filed the complaint without disclosing all these facts
and has procured the impugned order. Thus, according
to the learned advocates, the complaint filed by
Respondent No.2 is prompted by mala fides and
deserves to be quashed by invoking the guidelines laid
down by the Supreme Court in the case of State of
Haryana Vs. Bhajan Lal [AIR 1992 (S.C.) 604]. The
learned advocates also raised a legal issue by
submitting that since all the applicants are public
servants, no prosecution could be launched against
them for any acts done in discharge of their official duty,
in view of Section 197 of the Cr.P.C. without previous
sanction of the State as contemplated therein. The
learned Advocates also referred to the decision in the
case of Anil Kumar and others Vs. M.K. Aiyappa and
12 Cri.Appln.246-17.odt
another [(2013) 10 SCC 705] in support of their such
arguments.
7. The learned advocates further submitted that as
laid down in the case of Priyanka Srivastava and
others Vs State of U.P. and others [AIR (2015)
Supreme Court 1758], the complaint filed before the
learned Judicial Magistrate seeking investigation under
Section 156(3) of the Cr.P.C. was also not supported by
any affidavit of Respondent No.2 and therefore, even
this lapse vitiates the order.
8. The learned APP supported the impugned orders.
9. The learned advocate for Respondent No.2
submitted that the learned Magistrate has passed the
impugned order only after going through the complaint
and the papers annexed thereto and must have applied
his mind, as he was indeed obliged to do, while passing
the order even if the impugned order does not state so in
so many words. The learned advocate also submitted
13 Cri.Appln.246-17.odt
that the question whether conduct of Respondent No.2
is bona fide or otherwise would only be a peripheral
issue. When in pursuance of the investigation carried
out in accordance with the directions in the impugned
order the Investigating Officer has found some
substance, that should be the end of the matter and the
intention of Respondent No.2 in filing the complaint
alone cannot change the course. The learned advocate
for Respondent No.2 also submitted that the acts and
omissions which are alleged to have constituted the
offences are clearly criminal in nature and make out
necessary ingredients for constituting the offences
registered by the impugned FIR. According to the
learned advocate forgery and criminal breach of trust by
the applicants cannot be said to have been done by
them in discharge of their official duties, for it cannot be
said that committing forgery and breach of trust is part
and parcel of their duty. Lastly, the learned advocate for
Respondent No.2 vehemently submitted that since the
investigation has already proceeded further
substantially, no purpose would be served now by
14 Cri.Appln.246-17.odt
directing the learned Magistrate to once again to go
through the papers and the complaint and to make him
pass a reasoned order after lapse of so many years.
10. Let us now consider the submissions of the
learned advocates for the respective parties in seriatim.
So far as the powers of Magistrate to direct
investigation under Section 156(3) of the Cr.P.C. are
concerned, indeed it is trite that the powers can only be
exercised after due application of mind and one can only
refer to the decisions in the case of Lalitha Kumari Vs
Goverment of U.P. and others [AIR (2014) SC 187],
Anil Kumar (supra) and Maksud Saiyed Vs. State of
Gujarat and others [(2008) 5 SCC 668] and the recent
judgment in the case of Priyanka Srivastava (supra).
Without deliberating much we can straight way proceed
to examine the impugned order to ascertain if the
learned Magistrate can be said to have applied his mind
while passing the order.
15 Cri.Appln.246-17.odt
11. Ex facie the order is cryptic. However, it mentions
that the learned Magistrate had considered allegations
in the complaint which prima facie disclosed
commission of cognizable offence and that the
Magistrate had perused the petition and the documents
annexed with it. Not only this, but even the learned
Magistrate has considered the legal aspect as to whether
an application simpliciter seeking direction under
Section 156(3) of the Cr.P.C. would be maintainable. He
has also cursorily observed that the allegations are to
the effect that the accused Nos.1 to 14, in furtherance of
their common intention, have committed
misappropriation of Government funds which requires
investigation. Going by the law laid down by the various
decisions of the Supreme Court referred to herein above
it was expected of the learned Magistrate to have passed
a detailed and elaborate order specifically pointing out
as to how the allegations in the complaint prima facie
would constitute / disclose commission of a cognizable
offence. We are of the view that a careful reading of the
impugned order though cryptic would demonstrate for
16 Cri.Appln.246-17.odt
the reasons mentioned above that the learned
Magistrate had indeed applied his mind before issuing
direction under Section 156(3) of the Cr.P.C. albeit he
could have been well advised to pass the order
disclosing application of mind. However, it can none the
less be said that we are satisfied that the impugned
order has been passed by the Magistrate only after
application of mind.
12. In this respect, it is also necessary to note that as
has been laid down in the case of Priyanka Srivastava
(supra) it is expected that before invoking the powers of
a Magistrate under Section 156(3) there has to be prior
compliance of Section 154 of the Cr.P.C. As is observed
in the beginning, it is a common ground that
Respondent No.2 had indeed approached the police
seeking their intervention by reporting the complaint.
The learned Magistrate in the impugned order has also
observed that he has verified that there was a
compliance with Section 154 of the Cr.P.C. Therefore,
even this circumstance would clearly indicate that the
17 Cri.Appln.246-17.odt
learned Magistrate had in fact applied mind while
passing the impugned order and therefore, the
submission of the learned advocates for the applicants
in this regard does not hold water.
13. As regards the law laid down in the case of Anil
Kumar (supra) that in view of Section 197 of the Cr.P.C.,
when a complaint is filed and a direction is sought
under Section 156(3) of the Cr.P.C. implicating a public
servant no order can be passed unless such a request is
preceded by suitable sanction by the competent
authority. However, it is equally trite, that the wording of
Section 197 of the Cr.P.C. abundantly makes it clear
that the offence alleged to have been committed by the
public servant must have been done by him while acting
or purporting to act in discharge of his official duty, as a
condition precedent for taking cognizance of the offence.
Admittedly, no such previous sanction has been
obtained by Respondent No.2. However, as has been
rightly submitted by his learned advocate, going by the
nature of the allegations wherein the respondents have
18 Cri.Appln.246-17.odt
forged the authority letters even when there were no
such decisions taken by the concerned committee for
allocation of work and the work contracts have been
issued, it cannot be said that such forgery and criminal
breach of trust were part and parcel of their official duty
or were done in the purported discharge of their official
duty. It is to be remembered that not in every case such
a previous sanction to prosecute a public servant is
necessary. It is only when the action complained of is
done while acting or purporting to act in discharge of
their official duty that a protection is sought to be
extended to them by Section 197 of the Cr.P.C.
Therefore, we are also satisfied that even in the absence
of such sanction the applicants could have been legally
proceeded against by filing the complaint.
14. So far as the submission of the learned advocate
for the applicants that the complaint filed by
Respondent No.2 was not supported by the affidavit as
is laid down in the case of Priyanka Srivastava (supra) is
concerned, suffice for the purpose to observe with
19 Cri.Appln.246-17.odt
respect that there is no specific provision contained any
where in the Cr.P.C. requiring such affidavit to be filed.
However, it is only in view of the decision in the form of
direction in the case of Priyanka Srivastava that the
Magistrates would now be obliged to examine if the
complaint / applications invoking their power under
Section 156(3) of the Cr.P.C. are supported by an
affidavit of the person making the application. Since
the directions in the case of Priyanka Srivastava have
been issued by the judgment dated 19.03.2015, such
procedure can be expected to be followed only after that
date. Since, in the matter in hand the impugned order
was passed on 23.09.2013, it cannot be said that
Respondent No.2 was under any legal obligation to
follow such a procedure or for that matter the learned
Magistrate should have ensured that such a procedure
was followed. Therefore, even this limb of argument of
the learned advocate for the applicants is not
sustainable.
15. This takes us to the submission of the learned
20 Cri.Appln.246-17.odt
advocates for the applicants touching the merits of the
case on facts. However, suffice for the purpose to note
that since the applicants are seeking quashment of the
impugned order and the FIR, the scope of the present
inquiry is very limited and disputed facts which require
a minute scrutiny cannot be gone into. Simply because
the Chief Engineer has directed the Superintending
Engineer to inquire into the allegations levelled by
Respondent No.2, it cannot be said that such inquiry
having been undertaken on the administrative side
should be sufficient to address the grievance of
Respondent No.2. Therefore, merely because the
department has taken some steps on the administrative
side that would not per se absolve the persons if the
acts would constitute the offences punishable under
law. On the contrary, it must be noted that even on the
applicants own showing, it is not that they have been
honourably absolved during that inquiry. In fact the
Superintending Engineer did find substance and has
concluded that there were some irregularities in
allocation of the work and that is why he had proposed
21 Cri.Appln.246-17.odt
that the officers / persons should be warned to be
careful in future and to avoid such irregularities. This
circumstance, in our opinion is quite clinching and even
on facts it can certainly be said that there does appear
prima facie substance in the allegations levelled by
Respondent No.2 against the applicants. Whether at
the hearing such irregularities would turn out to be
offences and would make out all the necessary
ingredients is a matter for the Trial Court to ascertain.
We are only referring to this circumstance to the limited
purpose of ascertaining that this circumstance does
demonstrate that prima facie there have irregularities in
allocation of work and which in all probabilities could
not have happened sans active involvement of various
persons in the public office of the applicants.
16. As a corollary to this circumstance, we also think
it proper to observe that the report of the Investigating
Officer also corroborates the allegations levelled against
the applicants and he has clearly given instances as to
how the applicants are involved in preparation of false
22 Cri.Appln.246-17.odt
documents and have used them for allocating work
contracts. In our view, all these circumstances clearly
justify the allegations which Respondent No.2 is making
against all the applicants. Consequently, simply because
Respondent No.2 has some oblique motive that would
not ipso facto be sufficient to quash the impugned order
and the FIR when we have found that there is indeed
some substance. The case of the applicants does not
fall in to any of the seven categories laid down in
Bhajanlal's case (supra).
17. In this respect, we can fruitfully refer to the recent
Judgment of the Supreme Court in case of HDFC
Securities Limited and others Vs. State of
Maharashtra and another [9 (2017) 1 SCC 640] held
thus :-
"27. It appears to us that the appellants approached
the High Court even before the stage of issuance of
process. In particular, the appellants challenged the
order dated 04.01.2011 passed by the learned
Magistrate under Section 156(3) of Cr.P.C. The learned
counsel appearing on behalf of the appellants after
summarising their arguments in the matter have
emphasised also in the context of the fundamental
rights of the appellants under the Constitution, that
the order impugned has caused grave inequities to the
appellants. In the circumstances, it was submitted
23 Cri.Appln.246-17.odt
that the order is illegal and is an abuse of the process
of law. However, it appears to us that this order under
Section 156(3) Cr.P.C. requiring investigation by the
police, cannot be said to have caused an injury of
irreparable nature which, at this stage, requires
quashing of the investigation. We must keep in our
mind that the stage of cognizance would arise only
after the investigation report is filed before the
Magistrate. Therefore, in our opinion, at this stage, the
High Court has correctly assessed the facts and the
law in this situation and held that filing of the
petitioners under Article 227 of the Constitution of
India or under Section 482 Cr.P.C., at this stage are
nothing but premature. Further, in our opinion, the
High Court correctly came to the conclusion that the
inherent powers of the Court under Section 482 Cr.P.C.
should be sparingly used."
18. In the result, we conclude that there is no merit in
the applications and those are liable to be rejected. The
applications are rejected. The rule is discharged. It is
made clear that the observations herein are confined to
the decision of these applications and shall not affect
either the investigation or the trial.
(MANGESH S. PATIL, J.) (S.S.SHINDE, J.)
...
vmk/-
24 Cri.Appln.246-17.odt
. After pronouncement of the Judgment, learned
counsel appearing for the Applicants prays for
continuation of the ad-interim relief which was in force
during the pendency of the Applications.
. The said prayer is vehemently opposed by the
learned counsel appearing for the respective
Respondents.
. We have rejected the Applications and therefore
any further continuation of ad-interim relief may
amount interference in the investigation which is
exclusive domain of the Investigating Officer. In that
view of the matter, we are not inclined to entertain the
prayer for continuation of ad-interim relief. Hence the
said prayer stands rejected.
(MANGESH S. PATIL, J.) (S.S.SHINDE, J.)
...
