Narayan S/O. Kalba Gaikwad vs The State Of Maharashtra
2018 Latest Caselaw 867 Bom

                                          1                                 Cri.Appln 3895-2017


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


             CRIMINAL APPLICATION NO. 3895 OF 2017


       1)      Narayan Kalba Gaikwad,
               Age 45 years, Occ.Agri.,
               Pre. Secretary, Jankalyan Vikas
               Mandal, Pethwadaj Tq. Kandhar,
               Dist. Nanded.

       2)      Nagorao Govind Bobade,
               Age Major, Occ.Agri.,

               Both R/o At Post Pethwadaj,
               Tq. Kandhar Dist. Nanded.                                .. Applicants

               VS.

       1)      The State of Maharashtra,
               Through Police Station, Kandhar
               Tq. Kandhar Dist. Nanded.

       2)      Dr. Dasrao Raosaheb Deshmukh,
               Age 74 years, Occ. Ex. MLA,
               R/o Shivneri, Vazirabad,
               Nanded Tq. and Dist. Nanded.                             .. Respondents

                                     ----

Mr. S. S. Deshmukh, Advocate for the applicants. Ms. P. V. Diggikar, Additional Public Prosecutor for respondent No.1/ State.

Mr. S. S. Choudhari, Advocate for respondent No.2.

----

                                CORAM :     PRASANNA B. VARALE &
                                            SMT. VIBHA KANKANWADI, JJ
                                DATE      : 24-01-2018

ORAL JUDGMENT ( Per Smt. Vibha Kankanwadi. J.)

2 Cri.Appln 3895-2017

1. The applicants by invoking the inherent powers of this

Court under Section 482 of Code of Criminal Procedure have prayed

for quashing of First Information Report (hereinafter referred to as

"FIR") lodged against them at the instance of respondent No.2.

2. The factual matrix leading to the application are that, the

respondent No.2- original applicant filed Misc. Criminal Application

No. 34 of 2017 before learned Judicial Magistrate, First Class,

Kandhar District Nanded contending that the present applicants have

committed offence punishable under Section 420, 467, 468, 471

read with 34 of the Indian Penal Code, and it should be sent for

investigation under provisions of Section 156 (3) of Cr.P.C..

Consequent to the order passed by the learned Magistrate, FIR was

registered vide Crime No.120 of 2017 on 19-05-2017 with Kandhar

Police Station Dist. Nanded for the said offences.

3. It is contended by the present applicants further that,

they are working as trustees of the trust called "Janakalyan Vikas

Mandal, Pethwadaj Tq. Kandhar Dist. Nanded." By amending object

of the trust it was resolved that the trust will work for upliftment of

the minority elements of the society. The amendment was

submitted to the Assistant Charity Commissioner for its approval.

The learned Assistant Charity Commissioner by his order dated 03-

3 Cri.Appln 3895-2017

09-2010 approved the change in the bylaws of the trust. In the light

of Government Resolution - 2007, when a trust belonging to the

Scheduled Caste comprises 1/3rd of such community then the trust

can enjoy the status of minority trust. Accordingly the Additional

Chief Secretary, Department of Minority Development, State of

Maharashtra issued such certificate and granted the status of

minority trust to the said trust on 13-06-2011. A general body

meeting of the trustees was held on 11-06-2016. A change report in

respect of the agenda that was discussed, was submitted to Deputy

Charity Commissioner, Nanded Region on 15-06-2016. Notices

were issued to all the concerned stakeholders including respondent

No.2 regarding the submission of said proposal regarding the change

of report. Respondent No.2, though duly served with the notice, did

not cause his appearance. Consequently the inquiry proceeded

without his say and order to that effect has been passed by learned

Deputy Charity Commissioner, Nanded on 16-01-2017.

4. The present respondent No.2 and other two members of

the executive committee had presented a complaint bearing

complaint No. 529 of 2016, before learned Deputy Charity

Commissioner against the present applicants on 09-06-2016 seeking

permission to present proceedings under Section 51 of the Bombay

Public Trust Act contending that the present applicants have

prepared bogus document and obtained bogus signatures. It was

4 Cri.Appln 3895-2017

their prayer that, criminal complaint be initiated or they be allowed

to initiate criminal proceedings against applicants. The said

application was rejected by learned Deputy Charity Commissioner by

his order dated 09-06-2016.

5. Having failed in the said complaint No. 529 of 2016 and

after realizing that his name has been deleted from the executive

trustee, the complainant filed the said private complaint before

learned Judicial Magistrate First Class, taking recourse under Section

156 (3) of Cr.P.C. It has been contended that, the basis for such

recourse is totally unfounded and imaginary, it is a frivolous

prosecution. The learned Magistrate while handing over the

investigation, had not adhered to the ratio laid down in case of

Priyanka Shrivastava and Another Vs. State of Uttar Pradesh and

Others, (2015) 6, Supreme Court Cases 287. Therefore, it is

submitted that the said order is bad in law and therefore the FIR

which has been consequently registered deserves to be quashed and

set aside.

6. Heard Mr. S. S. Deshmukh, learned counsel appearing for

applicants, learned Addl. Public Prosecutor Ms. P. V. Diggikar for

State-respondent No.1 and Mr. S. S. Choudhari, learned counsel

appearing for respondent No.2.

7. The learned counsel appearing for the applicants has

5 Cri.Appln 3895-2017

submitted that, the change of object of the trust has been done in a

legal way and it has been approved by the competent authority.

Thereafter, the certificate of minority has been issued by the

Government as per the Government Resolution. After the certificate

was issued due notice was issued in respect of the meeting and the

business was transacted. In view of the said agenda, change report

was submitted before the learned Deputy Charity Commissioner,

Nanded. Notice of the said change report was issued to the

respondent No.2 but he remained absent and did not take any

objection. As a result of which, matter proceeded without the say of

the respondent No.2. By way of separate complaint No. 529 of

2016, the present respondent No.2 and other two executive

members specifically challenged the notice to call meeting by

contending that bogus record has been created and it was prayed

that criminal action be initiated against the present applicants.

However, those proceedings have been rejected by Deputy Charity

Commissioner. There is a inbuilt mechanism in the Bombay Public

Trust Act and the Charity Commissioner and the other authorities

have been empowered to take cognizance regarding any criminal

action by the parties before it. When that authority had refused to

take cognizance, the only option available for the respondent No. 2

was to challenge the said order before higher authorities under the

said Act. The learned Magistrate before whom the respondent No.2

6 Cri.Appln 3895-2017

had field Misc. Cri. Application No. 34 of 2017 ought not to have

taken cognizance of the same and sent it for investigation under

Section 156 (3) of Cr.P.C. Further the learned Magistrate failed to

consider that the parameters laid in Priyanka Shrivastava Vs. State

of Uttar Pradesh, have not been adhered to by the learned

Magistrate. Therefore, the FIR which is based on the order passed in

Misc. Cri. Application No. 34 of 2017 is erroneous and therefore

deserves to be set aside.

8. The learned counsel appearing for the applicant has

relied on the observations of this Court in Criminal Writ Petition No.

507 of 2013 (Rajeshwarrao s/o Vishwanathrao Patil and others Vs.

The State of Maharashtra and others) decided on 22nd August, 2013,

wherein it has been held that,

"When the Assistant Charity Commissioner is vested with the powers of the Civil Court then a private person cannot institute any FIR."

Learned counsel also relied on the decision in Priyanka Srivasatava

(Supra).

9. Per contra, it has been submitted on behalf of the

respondents that, the learned Magistrate had considered all the

aspects canvassed in the complaint and after he was satisfied that a

cognizable offence has been committed, was of the opinion that the

7 Cri.Appln 3895-2017

police investigation is necessary, and therefore, directed Police

Station Officer, Kandhar Police Station to investigate the matter vide

Section 156 (3) of Cr.P.C. Specific allegations were made that the

present applicants had prepared forged documents. The signatures

of the applicants therein and other two trustees were forged, those

forged documents were used for procuring minority certificate,

thereby the State Government has been cheated. In order to get

concession, audit memo was produced before the Government

containing forged signatures. However, when notice to pay income

tax was received from the concerned department, the said fact was

revealed to the complainant. Further the amounts were withdrawn

by forging documents and other documents have been created.

Under such circumstance the order that was passed by the learned

Magistrate was legal, and therefore the FIR that has been lodged is

also legal.

10. As regards facts of the case are concerned, it is to be

noted that amendment was made in the object of the trust and the

said change report in respect of change of object was approved by

the concerned authority by its order dated 03-09-2010. It appears

that the said approval has not been challenged by complainant and

other two trustees. Thereafter the documents show that notice in

respect of meeting was issued and by order dated 16-01-2017 when

it was found that the present respondent No.2 had not filed any

8 Cri.Appln 3895-2017

objection, the matter proceeded without his say in order to approve

the change report. The other set of facts disclose that, a complaint

application was filed by respondent No.2 bearing complaint No. 529

of 2016 before learned Assistant Charity Commissioner, Nanded

Division Nanded, wherein almost same contents as have been raised

in Misc. Cri. Application No. 34 of 2017 were raised and in the said

complaint before Assistant Charity Commissioner, the prayer was

made that he be permitted to file legal proceedings against the

present applicants. After hearing both sides, the learned Assistant

charity Commissioner, Nanded Division Nanded, rejected the said

application on 09-12-2016. Respondent No. 2 has not filed any

document showing that he has challenged the decision in this

complaint application before the higher authorities. That means the

said order in complaint No. 529 of 2016 has become final. In spite

of the said fact which was within the knowledge of the respondent

No.2, he went on to file Misc. Cri. Application No. 34 of 2017 before

Judicial Magistrate F.C., Kandhar on 03-03-2017.

11. Perusal of the said private complaint (Misc. Cri.

Application No. 34 of 2017) would show that, there is total

suppression of fact of rejection of Exhibit 23 in complaint No. 529 of

2016 wherein application under Section 51 of Bombay Public Trust

Act was rejected. The Division Bench of this Court in Rajeshwarrao's

case (Supra) has observed,

9 Cri.Appln 3895-2017

"23. The Assistant Charity Commissioner, is an authority constituted under the Bombay Public Trust Act, and is vested with the powers, duties and functions under said Act. The Assistant Charity Commissioner is vested with powers of civil court. Therefore, if any offence is committed by the accused in the process of any investigation or enquiry, it is an independent matter to be dealt with by the competent authority under the Bombay Public Trust Act, under the provisions of Chapter XIV read with Chapter XXIV of the Code of Criminal Procedure. The respondent No.3 has no role to play in such matter particularly by way of lodging a FIR in that regard."

No doubt only the difference in the fact is that, it was the direct

letter given to Police Inspector of which the cognizance was taken by

the police officer resulted in registration of the FIR in the said case,

however the fact that was mentioned in the said letter was that

those alleged forged documents were filed in the proceedings before

Assistant Charity Commissioner. In the backdrop of this particular

fact that the alleged forged documents were filed before Assistant

Charity Commissioner, the above-said observation has been made.

Definitely these observations are helpful and we reiterate.

12. The other point that has been canvassed is that, the

learned Magistrate had not adhered to the procedure that has been

laid down in Priyanka's case before passing the impugned order

dated 17-05-2017. It has been observed,

10 Cri.Appln 3895-2017

"27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order...... "

Further it has been observed,

"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same ."

"30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any

11 Cri.Appln 3895-2017

responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. "

"31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3).........."

13. As regards the above said point it is to be noted that the

affidavit of the complainant was filed along with the said complaint

which appears that it was perused by the learned Magistrate.

However, as aforesaid the respondent No.2 i.e. original complainant

had suppressed the rejection of his application Exhibit 23 by learned

Assistant Charity Commissioner on 09-12-2016. If the said fact

12 Cri.Appln 3895-2017

would have been disclosed by the complainant, the result might

have been different.

14. As it appears that, the learned Assistant Charity

Commissioner had rejected the application Exhibit 23 in order to

initiate action as per Section 51 of Bombay Public Trust Act and the

said order appears to have not been challenged by the respondent

No.2, no criminal action could have been taken in respect of the

documents which have been allegedly forged and submitted in

proceedings before Assistant Charity Commissioner. Finality has

been arrived to the said order. When the competent authority under

Act ; wherein in-built mechanism has been created, had refused to

take cognizance, then a separate private complaint on the same

allegations is not maintainable. Therefore, the said order of directing

the investigation under Section 156 (3) of Cr.P.C. passed in Misc. Cri.

Application No. 34 of 2017 by Judicial Magistrate F. C., Kandhar

dated 17-05-2017 and consequent filing of FIR bearing Crime No.

120 of 2017 is illegal and deserves to be quashed and set aside.

15. Taking into consideration the observations of this Court

in Rajeshwarrao Vishwanathrao Patil's case (supra) and mainly the

suppression of rejection of application Exhibit 23 by Assistant Charity

Commissioner in Enquiry No. 529 of 2016 dated 09-12-2016 which

has resulted in passing of the impugned order dated 17-05-2017 by

13 Cri.Appln 3895-2017

Judicial Magistrate F.C., Kandhar and lodging of FIR is illegal, we find

this to be a fit case where the extraordinary jurisdiction of this Court

under Section 482 of Cr.P.C. should be invoked. Applicants can not

be asked to face an investigation and criminal trial based upon such

illegal FIR. For the aforesaid reasons we proceed to pass following

order.

                                      ORDER

                1)       Application is hereby allowed.


                2)       Order passed by Judicial Magistrate First Class,

Kandhar Dist. Nanded in Misc. Criminal Application No. 34 of 2017 dated 17-05-2017 and consequent impugned FIR bearing Crime No. 120 of 2017 dated 19-05-2017 registered with Kandhar Police Station Dist. Nanded under Section 420, 467, 468, 471 read with 34 of Indian Penal Code is hereby quashed and set aside.

         [SMT. VIBHA KANKANWADI]                      [PRASANNA B. VARALE]
                   JUDGE                                      JUDGE


vjg/-.