Padmakar S/O Gajananrao Pande vs Ramesh S/O Tukaram Diwate And Anr
2017 Latest Caselaw 8983 Bom

                                     1                   CriApln 5752-2016


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

            CRIMINAL APPLICATION NO. 5752 OF 2016


       Padmakar Gajananrao Pande,
       Age 58 years, Occupation Service,
       working as a Sub-Divisional Engineer,
       (Marketting), Office of the Telecom,
       District Manager, Bharat Sanchar
       Nigam Limited, B.S.N.L. Jalna,
       Ner Shivaji Statue, Jalna.                      ...Applicant

       Versus

 1)    Ramesh Tukaram Diwate,
       Age 63 years, Occupation Nil,
       R/o Flat No. C-7, CTS Building,
       Bahadurpura, Opposite Abhinay
       Theatre, Aurangabad.

 2)    The State of Maharashtra.                       ...Respondents


                                ---------
       Mr. S. C. Arora, Advocate for the applicant.
       Mr. A. R. Kale, Additional Public Prosecutor for respondent
       No.2
                                ---------

                                CORAM : SMT. VIBHA KANKANWADI, J.

DATE : 23-11-2017

ORAL JUDGMENT :

1. Heard learned counsel appearing for the applicant and

learned Additional Public Prosecutor for respondent No.2. The

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learned counsel for respondent No.1 is absent. He was absent

yesterday also. The notice issued to respondent No.1 by order

dated 18-10-2016 clearly indicated that it is for final disposal at

the admission stage, hence the matter is taken up for final hearing.

2. The present applicant is the original accused. The

original complainant i.e. respondent No.1 filed private complaint

Summary Criminal Case No.39 of 2014 against the present

applicant contending that, the applicant/ accused has committed

offence punishable under Section 500 of the Indian Penal Code. I

would like to address parties hereinafter by their nomenclature in

the original complaint.

3. The complainant was working as Sub-Divisional Officer

with Bharat Sanchar Nigam Limited (B.S.N.L.) Office at

Aurangabad. The accused is also serving with the same institution

and he was the Divisional Engineer (Vigilance). It is the contention

of the complainant that he has gained reputation because of his

work. His family members have also earned reputation in the

society. Accused started harassing him on trifle grounds since

2012. He used to defame him by leveling false allegations. He

had given threat to suspend the complainant on the allegation

3 CriApln 5752-2016

that, he has demanded amount of Rs.2,00,000/-. The accused had

conspired with the union leader and secretary in order to defame

the complainant. In fact a notice defaming the complainant was

displayed by the accused on 07-12-2012 on the notice board of the

office, and thereby it is the contention of the complainant that he

has committed offence punishable under Section 500 of Indian

Penal Code.

4. After the presentation of the complaint, the verification

was recorded. After perusing the complaint, verification and

perusal of the documents, the learned J.M.F.C., Aurangabad issued

process against the accused for the offence punishable under

Section 500 of Indian Penal Code. After the accused appeared in

the matter, he had filed a complaint for discharge at exh.19. The

said application came to be rejected on 1 st January, 2015. The

accused carried the matter forward and challenged the order below

exh.19 before learned Additional Sessions Judge, Aurangabad in

Criminal Revision No. 57 of 2015. The said revision came to be

dismissed on 30-07-2016.

5. The accused by invoking the inherent powers of this

Court under Section 482 of the Criminal Procedure Code has filed

4 CriApln 5752-2016

present application, for quashing the complaint.

6. It has been submitted on behalf of the applicant that,

the prima facie perusal of the complaint would show that the

ingredients of the offence have not been made out and the learned

Magistrate had failed to consider this important aspect. The

learned Magistrate as well as learned Additional Sessions Judge

failed to consider that the accused being a Government servant

and had done the act in discharge of his official duty was protected

by virtue of provisions of Section 197 of Code of Criminal

Procedure, and therefore, without the sanction been obtained, the

process ought not to have been issued. He also submitted that,

though the accused had earlier invoked his remedy under Section

397 of Code of Criminal procedure, yet his remedy before this

Court under Section 482 of Cr.P.C. has not been taken away, and

therefore the petition is maintainable.

7. Per contra, it has been submitted by the learned

Additional Public Prosecutor that, since the applicant had already

invoked his remedy under Section 397 of Cr.P.C., he ought to have

filed writ petition, he cannot now invoke the inherent powers of

this Court.

5 CriApln 5752-2016

8. In order to appreciate the controversy posed in this

matter, it is necessary to see as to whether the complaint discloses

the ingredients of the offence and whether the points raised by the

applicant can be upheld. It is not in dispute that, the original

complainant was serving in BSNL. It is also not in dispute that, the

accused is serving in the Government service and was holding post

of Additional Engineer (Vigilance) in the office of BSNL at

Aurangabad. Exhibit "C" in this petition is the impugned notice

that was displayed on the notice board on 07-12-2012. Accused is

not disputing that, he had displayed the said notice. The accused

contends that, there were complaints against the complainant

which were taken up to the higher authorities of B.S.N.L., and

therefore he had received a confidential letter from higher

authorities directing him to hold an enquiry in the matter. He has

placed on record the said confidential letter dated 23-07-2012. In

fact it is a reminder and original letter appears to be dated 29-03-

2012. Prior to that, on 7th May, 2012 C.V.O., B.S.N.L., New Delhi

was given some documents by under secretary which was

containing the complaints. Complaint against the complainant

was, by this letter, forwarded to C.V.O., B.S.N.L. It appears that,

the allegations against the complainant were that while in service

6 CriApln 5752-2016

he was doing work for a financial institution. He had collected

huge amount from members, he had returned only a part of the

said amount and the major portion of the said collected amount

has been appropriated by him. The accused was directed to hold

enquiry. The present applicant has filed on record the notice in the

form of directions given to him by the higher authorities. It is on

page No.23. It had given direction to the accused that, "Important

notice to be displayed on notice board and all exchange buildings

and office in Aurangabad SSA".

9. In pursuance to the said directions the impugned notice

came to be displayed on the notice board of the B.S.N.L. office at

Aurangabad. It can be considered from the contents of the

impugned notice that, it conveyed what are the allegations against

the complainant and then he invited that if at all anybody is

honestly desires to take action against the complainant, then he

may give evidence in the nature of receipt and complaint

addressed at his official designation. The contents of the said

notice does not even prima facie reveal that, accused had any kind

of intention to defame the complainant. The most important

ingredient of Section 499 of Indian Penal Code is that, the person

i.e. accused should have intention to harm or knowing or having

7 CriApln 5752-2016

reason to belief that such imputation will harm the reputation of

such person. Basically when the complainant was under directions

from his superior authorities, he cannot be said to be

independently having any intention to defame/ harm the reputation

of the complainant.

10. Another fact to be noted from the contents of the

complaint are that, complainant alleges that since 2012 the

accused was harassing him on trifle grounds. Those allegations are

vague as possible. He also says that, he was given threat to

suspend when allegation was levelled that he had demanded

amount of Rs.2,00,000/- from the Union President and Secretary in

conspiracy with the accused, but then he says that, he had not

paid attention to the same. That means, he had not taken the said

threat seriously. When there were no previous instances between

complainant and accused showing any kind of rift between them,

then the question is why all of a sudden on 07-12-2012 the

accused will develop intention to defame the complainant. No

doubt a Judicial Magistrate F.C. is required to consider only the

prima facie allegations while considering whether to take

cognizance of the offence or not. The Magistrate is not required to

consider the pros and cons of the complaint and is not required to

8 CriApln 5752-2016

deal with the point whether those allegations will be proved or not

and will culminate in the punishment/ conviction of the accused.

However, definitely the Magistrate is required to consider whether

on the basis of the contents of the complaint, the ingredients of the

offence have been made out or not. Prima facie in order to take

cognizance of the offence, certainly in this case, those contents

were absent.

11. Taking cognizance of an offence is, in fact, a serious

business. For that purpose, judicial application of mind is required.

If the facts are not clear then the option is available to the

Magistrate to postpone the issuance of process and hold an enquiry

under Section 202 of Code of Criminal Procedure. No doubt an

accused is not expected to take part in the process till he is called

upon by virtue of the summons issued to him, and therefore, many

documents or facts may not be revealed before the Magistrate at

the stage of taking cognizance. However, those facts can be

revealed by resorting to the powers under Section 202 of Cr.P.C.

12. Another important point that has been raised on behalf

of the applicant is that, the learned Magistrate failed to consider

that sanction has not been obtained in pursuance to the provisions

9 CriApln 5752-2016

of Section 197 of Cr.P.C., before the cognizance of the offence was

taken. It is not in dispute that, the accused is a public servant,

and therefore, the learned Magistrate ought to have given a

thought before taking cognizance of the matter as to whether the

question of sanction is involved in this case or not. The impugned

notice would clearly show that, it has been issued in the official

capacity by the accused. The further question that will be raised is

whether he was discharging his official duty at the relevant time.

On the basis of the directions given by the higher authorities which

have been produced on record at page No.23, it can be definitely

concluded that the accused was discharging his official duty at the

relevant time and the act has been done on the basis of those

directions. No doubt the directions on page No.23 were not before

the learned Magistrate, but the learned Magistrate ought to have

called upon the complainant to make submissions on the said

point. Without considering the said element, the process has been

issued, which shows non-application of mind by the learned

Magistrate.

13. The learned counsel appearing for the applicant has

relied on Ramnath Goenka Vs. A. R. Raji, 1982 Cri.L.J. 1153

(Madras High Court). In this case it has been held that,

10 CriApln 5752-2016

"Where a complaint against Principal Information Officer, Government of India for an offence under Section 500 I.P.C. Alleging that the "hand outs" issued by him to the complainant, a newspaper magnate are only defamatory statements with intent to lower his estimation in the eye of general public and with malice aforethought. In such case previous sanction of Central Government under Section 197 of Cr.P.C. is necessary for prosecution."

14. He also relied on the decision in Satya Narayan Omar

Vs. N. K. Pillai Jabalpur, 1982 Cri.L.J. 478, (Madhya Pradesh High

Court, Gwalior Bench). In this case it has been held that,

"Where a Government employee was a local highest authority of a Department of State Government and his official duty was to see that proper discipline including punctual attendance by the staff was maintained but he was alleged to have fabricated a false report which contained a false statement that the complainant i.e. an employee of the staff had left his headquarters without his permission, the acts so complained of could be said to have been committed by the said Government employee while discharging his official duty. Therefore, the sanction under Section 197 would be necessary for filing the complaint before a Criminal;

11 CriApln 5752-2016

Court against the Government employee."

15. Here in the present case also when the accused is a

Government employee and the impugned notice has been

published as per the directions given to him by the higher

authorities, then it was necessary for the complainant to obtain

sanction as contemplated under Section 197 of Cr.P.C. Since the

said sanction has not been obtained, cognizance of the offence

cannot be taken. This point was in fact raised before the Additional

Sessions Judge in criminal revision by the present applicant,

however the said point has been brushed aside by saying that

issuance of notice on a notice board cannot be considered as an act

by the accused while discharging his official duty. In fact when

specific directions in respect of displaying the said notice on the

board were issued to the accused by his higher authorities, then it

becomes integral part of his official duty.

16. A point has been raised that the present application is

not maintainable under Section 482 of Cr.P.C. since the accused

has already exhausted his remedy under Section 397 of Cr.P.C.

Reliance can be placed on the three Judges Bench decision of the

Apex Court in Girish Kumar Suneja Vs. C.B.I., reported in A.I.R.

12 CriApln 5752-2016

2017 Supreme Court 3620, wherein after relying on the decision in

Madhu Limaye Vs. State of Maharashtra, A.I.R. 1978 Supreme

Court 47, and State of Harayana and others Vs. Ch. Bhajan Lal and

others, A.I.R. 1992 Supreme Court 604, it has been held that the

powers under Section 482 of Cr.P.C. should be exercised in the

'rarest of rare cases'. Definitely this is the rarest of the rare case

in a way that, though the things were pointed out to the learned

Additional Sessions Judge, he failed to exercise powers under

Section 397 of Cr.P.C. This accused cannot be asked to undergo

the ordeal of facing trial when he was following the directions of

the superiors. Further the applicant has demonstrated that, the

order of issuance of process passed by the learned Magistrate was

without application of mind, and therefore, the application is

maintainable and deserves to be allowed for the aforesaid reasons.

Hence following order.

                                    ORDER


                1)      The application is hereby allowed.


                2)      Complaint i.e. Summary Criminal Case No.39 of

2014 pending before Judicial Magistrate, First Class, Aurangabad, is hereby quashed.

                                     13                       CriApln 5752-2016




                3)      The order passed by Additional Sessions Judge,

Aurangabad in Criminal Revision No.57 of 2015 dated 30-07-2016 is also hereby set aside.

                4)      Writ petition accordingly disposed of.




                                          [SMT. VIBHA KANKANWADI]
                                                   JUDGE

gawade/-.