Hari Prakash S/O. V. N. Tripathi vs Shailesh S/O. Harish Kulkarni And ...
2023 Latest Caselaw 1864 Bom

                                           1                                 APL978.18 (J)


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


         CRIMINAL APPLICATION (APL) NO. 978 OF 2018


APPLICANT                  : Hari Prakash S/o V. N. Tripathi,
                             Aged about 51 years, Occu. - Service,
                             R/o TY/CON/I, Mount Road,
                             Railway Colony, Sadar, Nagpur.

                                           VERSUS

NON-APPLICANTS: 1] Shailesh S/o Harish Kulkarni,
                   Aged about 53 years, Occu.- Business,
                   R/o 14/15, West High Court Road,
                   Shankar Nagar, Nagpur.

                              2] State of Maharashtra,
                                 Through Police Station Officer,
                                 Police Station, Sadar, Nagpur.

---------------------------------------------------------------------------------------------------
          Mr. S. K. Mishra, Senior Advocate assisted by Mr. Kaustubh
          Deogade, Advocate for the applicant
          Mr. V. V. Bhangde, Advocate for non-applicant no.1
          Mr. S. A. Ashirgade, A.P.P. for the non-applicant No.2
--------------------------------------------------------------------------------------------------

                  CORAM : G. A. SANAP, J.
     Date of Reserving the Judgment    : FEBRUARY 08, 2023.
     Date of Pronouncement of Judgment : FEBRUARY 24, 2023.


JUDGMENT

1. In this application, made under Section 482 of the Code

of Criminal Procedure (for short "Cr.P.C."), challenge is to the 2 APL978.18 (J)

judgment dated 17.09.2018 passed by the learned Additional Sessions

Judge-2, Nagpur in Criminal Revision Application No. 402/2012,

whereby the learned Additional Sessions Judge dismissed the revision

application and confirmed the order dated 18.05.2012 passed by the

learned Judicial Magistrate, First Class, Court No.6, Nagpur.

2. Learned Judicial Magistrate, First Class, Court No.6,

Nagpur vide order dated 18.05.2012 had rejected the applications

(Exhs.35, 40 and 38) made by accused nos.1 to 3 for dismissal of the

complaint and for their discharge in Criminal Complaint Case No.

1208/2007.

3. The relevant facts of the case are as under :

The parties in this judgment would be referred by their

nomenclature in the complaint. The applicant is accused no.1 and

non-applicant no.1 is the complainant. The complainant has stated

that as per the contract agreement dated 23.12.2002, railway contract

for executing the painting of railway still girder bridges was awarded to

him. The dispute arose between the complainant and the accused in 3 APL978.18 (J)

the matter of execution of the work. In terms of the arbitration clause,

the dispute was referred for arbitration.

4. It is the case of the complainant that in the arbitration

proceeding, he came to know that the accused persons have fabricated

the false evidence to substantiate their claim. It is the case of the

complainant that in the arbitration proceeding on the application of

the complainant, the Arbitral Tribunal had directed the accused to

produce the original record for inspection and examination. The

record was produced. On examination of the record, the complainant,

found that the document at annexure-13, a letter No. E/2/WAB/Br-

Painting/SHK dated 24.03.2003, issued by Sr.DEN(C)/SE

Railway/NGP was allegedly sent to M/s S. H. Kulkarni at his address.

It was found that at the bottom of the said letter, a postal receipt No.

3428 dated 24.03.2003, issued by the Department of Posts was affixed

to prove that the said letter was dispatched by Registered Post and

served to the complainant. This letter was not received by the

complainant and therefore, he demanded production of the evidence.

4 APL978.18 (J)

5. It is stated that Shri Sanjeev Kumar, the present Sr.DEN

(C) representing the DRM Engineering SECR, Nagpur produced the

original documents. The documents were examined by the

complainant and three members of the Arbitral Tribunal. The

examination of the documents revealed that the postal receipt of

registered article issued by the Department of Posts for another

document/article bearing No.E/WAB/45/BG dated 24.03.2003 was

used and affixed on the letter under question to prove the dispatch of

the said document to the complainant. It is stated that the railway

document at annexure-13 was not at all served to the complainant

under the registered post receipt No. 3428 dated 24.03.2003. On

examination of the dispatch register, the Arbitral Tribunal found that

there was no entry in the register of the dispatch of document dated

24.03.2003 i.e. annexure-13. It is, therefore, contended that the

accused have fabricated this evidence by affixing registered post receipt

of another document at the bottom of the letter annexure-13 to prove

that the same was dispatched and served to the complainant. It is the

case of the complainant that this document was fabricated with an

intention to persuade the Arbitral Tribunal to entertain an erroneous 5 APL978.18 (J)

opinion on the issue of service of notice. It is the case of the

complainant that the accused have, therefore, committed the offences

punishable under Sections 193 and 204 of the Indian Penal Code.

6. Learned Magistrate, on filing of the complaint, recorded

the verification statement of the complainant. Learned Magistrate on

the basis of the facts stated in the complaint and the verification

statement, took cognizance of the offences and issued process against

the accused persons.

7. Accused no.1 applied before the learned Magistrate for

dismissal of the complaint and for his discharge in the case. Learned

Magistrate vide order dated 18.05.2012 rejected the application. This

order was challenged by accused no.1 by filing revision in the Sessions

Court. Learned Additional Sessions Judge-3, Nagpur vide order dated

11.06.2015 allowed the revision and set aside the order passed by the

learned Magistrate. The application made by accused no.1 for dismissal

of the complainant and for his discharge was allowed. The

complainant challenged the said order before this Court by filing 6 APL978.18 (J)

Criminal Application (APL) No. 670/2015. This Court (Coram : A.S.

Chandurkar, J.) vide order dated 06.11.2017 set aside the order dated

11.06.2015 and restored the revision application to the file of Sessions

Court for deciding it afresh in accordance with law. As per the

directions of this Court, learned Additional Sessions Judge-2, Nagpur

decided the revision application vide order dated 17.09.2018. The

learned Additional Sessions Judge dismissed the revision application

and confirmed the order passed by the learned Magistrate dated

18.05.2012. The accused is before this Court against the said order.

8. I have heard Mr. S.K. Mishra, learned Senior Advocate

assisted by Mr. K.C. Deogade, learned advocate for the accused/

applicant, Mr. V.V. Bhangade, learned advocate for complainant/non-

applicant no.1 and Mr. S.A. Ashirgade, learned Additional Public

Prosecutor for the State/non-applicant no.2. Perused the record and

proceedings.

9. Learned Senior Advocate for the accused submitted that

in the facts and circumstances, the offences alleged to have been

committed by the accused have not been made out. Learned Senior 7 APL978.18 (J)

Advocate submitted that no specific role has been attributed to the

accused nos.1 to 3 in commission of the crime. Learned Senior

Advocate submitted that on the basis of the vague and general

allegations vis-a-vis the involvement of a particular person in the

commission of the alleged offence, the process was issued by the

learned Magistrate. Learned Senior Advocate submitted that mens rea

is the main ingredient of the offence defined under Section 192 of the

IPC. Learned Senior Advocate submitted that the document alleged to

have been fabricated was not relied upon in support of the claim before

the Arbitral Tribunal by the accused persons. Learned Senior

Advocate submitted that pursuant to the order of the Arbitral Tribunal

on the application of the complainant, the record was produced.

Learned Senior Advocate submitted that this fact would indicate that

the alleged document was not relied upon to prove any claim by the

accused persons. Learned Senior Advocate submitted that therefore,

this would reflect upon the mens rea. Learned Senior Advocate further

submitted that in the arbitration proceeding, the issue of service of the

notice of termination of the contract was one of the issues. Learned

Senior Advocate, by drawing my attention to the documents on record 8 APL978.18 (J)

and the observations made by the Arbitral Tribunal, submitted that

service of notice of termination of the contract was admitted by the

complainant. Learned Senior Advocate took me through the

arbitration award and pointed out the observations made by the

Arbitral Tribunal on the issue of service of termination notice to the

complainant. He also pointed out that in the deliberations of the

proceeding held in the meeting of the Arbitral Tribunal dated

28.06.2005, the complainant and the accused persons had admitted

that the termination notice of the instant contract was personally

served to the complainant on 08.04.2003. Learned Senior Advocate

submitted that the Arbitral Tribunal, in the award at number of places,

has categorically observed that the action taken by the accused persons

for termination of the contract was in order. The Arbitral Tribunal

further observed that termination of the contract was done by the

accused persons by following proper procedure. Learned Senior

Advocate submitted that all the above facts have not been taken into

consideration by the learned Judicial Magistrate, First Class as well as

by the learned Additional Sessions Judge.

9 APL978.18 (J)

10. Learned Senior Advocate further submitted that the

documents alleged to have been fabricated were given in a proceeding

before the Arbitral Tribunal and therefore, in view of Section 195 of

the Cr.P.C., the learned Magistrate should not have taken cognizance

of the same, except on the complaint in writing by the Arbitral

Tribunal.

11. Learned Senior Advocate submitted that the accused

persons are the government servants and the act alleged to have been

done by them was in exercise of their official duties and therefore, the

complaint filed without obtaining prior sanction for their prosecution

was not at all maintainable. Learned Senior Advocate submitted that

the learned Magistrate and the learned Additional Sessions Judge have

not properly appreciated his point. Learned Senior Advocate further

submitted that the applications for discharge made by accused nos.1 to

3 were maintainable as per the provisions of Section 245(2) of the

Code of Criminal Procedure. In order to substantiate this submission,

learned advocate placed heavy reliance on the decision of Hon'ble

Apex Court in the case of Ajoy Kumar Ghose .vs. State of Jharkhand

and another, reported at (2009) 14 SCC 115. Learned Senior 10 APL978.18 (J)

Advocate, therefore, submitted that this is a fit case to discharge the

accused persons and ultimately dismiss the complaint.

12. Learned advocate for the complainant/non-applicant no.1,

apart from supporting the orders passed by the learned Magistrate and

the learned Additional Sessions Judge, submitted that the documents

were fabricated to establish that the notice of termination of contract

was dispatched and served to the complainant. Learned advocate took

me through the minutes of the arbitration proceeding dated

28.06.2005 and submitted that this fact has been recorded in the said

minutes. Learned advocate submitted that in order to establish service

of notice of termination of contract dated 24.03.2003, a postal receipt

of another letter despatched to the complainant on the same date,

bearing No. 3428, was affixed at the bottom of the letter in question.

Learned advocate submitted that pasting of the receipt of another

article and that too of different number despatched to the complainant,

was nothing but fabrication of false evidence. Learned advocate

submitted that it was done with an intention to persuade the Arbitral

Tribunal to form an opinion upon that evidence, to entertain an 11 APL978.18 (J)

erroneous opinion on the point of service of the notice of termination

of the contract. Learned advocate submitted that in the arbitration

award, the Arbitral Tribunal has categorically observed that in the

Dispatch Register in the relevant column, there was no entry of

despatch of two documents relied upon by the accused persons to

substantiate their claim. Learned advocate submitted that on the basis

of the facts stated in the complaint, the intention of the accused behind

fabrication of the documents has been prima facie established.

Learned advocate submitted that the criminal offence of fabrication of

false evidence is not part of the official duties of the accused persons

and therefore, there was no need of sanction to prosecute the accused

persons. Learned advocate further submitted that the Arbitral

Tribunal is not a 'Court' and therefore, learned Magistrate was not

barred from taking the cognizance of the complaint. In short, learned

advocate submitted that in the facts and circumstances, reliance placed

on Section 195 of Cr.P.C. is totally misplaced. In order to substantive

this submission, the learned advocate relied on the decision of the

Hon'ble Apex Court in Manohar Lal .vs. Vinesh Anand and others ,

reported at (2001) 5 SCC 407. Learned advocate, in short, submitted 12 APL978.18 (J)

that the well reasoned order passed by the learned Additional Sessions

Judge does not warrant interference.

13. Learned advocate for the complainant, in all fairness,

submitted that the offence under Section 204 of the Indian Penal Code

cannot be attracted in this case against the accused.

14. In order to appreciate the rival submissions, it would be

necessary at the outset to consider the basic ingredients of Section 192

of the Indian Penal Code. Section 192 of the IPC is a part of Chapter

XI, which deals with the offence of false evidence and offences against

public justice. In order to invoke Section 192, following ingredients

must be established -

i] It must be established that the accused has caused any

circumstance to exist or made any document or electronic record

containing a false statement ;

ii] Such an act must be done with an intention that such

circumstance, false entry or false statement may appear in evidence in a

judicial proceeding or in a proceeding taken by law before a public 13 APL978.18 (J)

servant or before an arbitrator ; and

iii] Such act must be done with an intention that such

circumstance, false entry or false statement so appearing in evidence

may cause any person, who in such a proceeding is to form an opinion

upon evidence to entertain an erroneous opinion touching any point

material to the result of such proceeding.

15. It is, therefore, apparent that mere fabrication of a

document is not sufficient. It must be fabricated with an intention to

produce such document as an evidence in the proceeding and that too

with an intention to cause any person, who in such a proceeding is to

form an opinion upon the evidence to entertain erroneous opinion on

the fact in issue based on that false evidence. The mens rea is,

therefore, the most important ingredient of this offence. Whether

there is mens rea in commission of an offence is a question of fact and

it has to be addressed in view of the facts and circumstances of each

and every case.

16. At the outset, the undisputed facts which would basically 14 APL978.18 (J)

reflect upon the mens rea or intention of the accused, need to be stated.

According to the accused persons, there was breach of contract by the

complainant awarded to him. The contract was, therefore, terminated.

It is undisputed that in view of the arbitration clause in the contract

agreement, the dispute was referred for arbitration. An Arbitral

Tribunal, consisting three members, was constituted. The main issue

before the Arbitral Tribunal was with regard to the right of the

complainant to get the compensation or damages claimed by him in his

claim application. The ancillary issue was with regard to the issuance

and service of notice of termination of the contract by the accused to

the complainant. Few dates in this context are relevant. The Arbitral

Tribunal passed the award on 25.08.2007. The complainant filed this

complaint on 12.04.2007. It is not the case of the complainant that he

made any grievance or application before the Arbitral Tribunal and

made a request to the Arbitral Tribunal to initiate criminal proceeding

against the accused persons for fabricating false evidence. It is

undisputed that the document alleged to have been fabricated was not

produced by the accused persons in the arbitration proceeding. On the

application of the complainant, pursuant to the order passed by the 15 APL978.18 (J)

Arbitral Tribunal, the record and proceeding containing the alleged

fabricated document was produced. This fact undisputedly indicates

that this document was not produced as an evidence to substantiate

their claim and to convince the Arbitral Tribunal to accept their case.

The notice of termination of the contract, dated 24.03.2003 was

personally served to the complainant on 08.04.2003. A copy of the

said notice is at page 98 of this application. The complainant has not

disputed that he had received the said notice on 08.04.2003 at 11.40

hours and acknowledged the same in writing. This notice with the

acknowledgment of the complainant was produced in the arbitration

proceeding.

17. There are certain other important undisputed facts.

Mention of these facts needs to be made at this stage. In the

arbitration award, the Arbitral Tribunal has recorded that total 20

arbitration hearings were held. The dates of hearing have been set out

in the arbitration award. The important document, relied upon by

both the parties, is the minutes of 8 th arbitration proceeding conducted

on 28.06.2005. In the said minutes of the proceeding, there is a 16 APL978.18 (J)

reference to the production of documents by the accused persons as per

the direction of the Arbitral Tribunal. The anomaly with regard to

service of the notice of termination of the contract was pointed out by

the complainant. It is recorded in the minutes dated 28.06.2005 that

both the parties had admitted that the notice of termination of the

instant contract was handed over to the complainant on 08.04.2003.

Perusal of the arbitration award would show that all the contentions of

the parties were properly dealt with by the Arbitral Tribunal. Perusal

of the arbitration award would show that on this point the Arbitral

Tribunal has recorded a concrete finding and held that the contention

of the complainant that termination of the contract was improper and

biased, was not sustainable. The Arbitral Tribunal has observed at

number of places in the award that the action taken by the accused

persons for termination of the contract was in order. It is also held that

the termination of the contract by the accused persons was by

following proper procedure. The Arbitral Tribunal, as can be seen

from the arbitration award, has nowhere stated that there was either

improper service of notice or there was fabrication of the evidence to

support the contention of the accused persons on that count. It is to 17 APL978.18 (J)

be noted that the genesis of the complaint lies in the arbitration

proceeding. Therefore, the issues involved in this proceeding before

me, need to be considered in the backdrop of above stated undisputed

facts.

18. The complainant neither made a grievance nor any

written application before the Arbitral Tribunal contending that in

order to substantiate their claim, the accused persons have fabricated

false evidence. It is pertinent to note that the complaint was filed four

months prior to the arbitration award. The copy of complaint was not

placed on record of the Arbitral Tribunal. It is, therefore, apparent on

the face of the record that the mens rea, required to be established to

invoke Section 192 of the IPC, is missing in this case. The alleged

fabricated document was not produced to substantiate the claim of the

accused persons. Therefore, it is not possible to attribute an intention

to them that such a document was created with an intention that it

shall appear in evidence in a judicial proceeding or in a proceeding

taken by the Arbitrator. According to the complainant, on the basis of

the fabricated false evidence, the accused persons persuaded the 18 APL978.18 (J)

Arbitral Tribunal to entertain erroneous opinion touching this point of

service of notice. In my view, this second plank of section 192 of the

IPC, which deals with mens rea is also absent in this case.

19. Perusal of the arbitration award would further show that

the Arbitral Tribunal has not entertained any erroneous opinion

touching any point material to the result of the arbitration proceeding

on the basis of alleged fabricated document. In my view, if the

provisions of law, particularly Section 192 of the IPC, are applied to the

facts obtained on record and stated herein above, it would clearly

indicate that the mens rea in this case is completely missing. At this

stage, it is necessary to mention that both the parties have accepted the

arbitration award. The complainant did not challenge the arbitration

award. Perusal of the arbitration award would further show that the

claim of the claimant was partly allowed on the basis of the evidence

placed on record by the parties. It is, therefore, not possible to accept

the contention of the complainant that by entertaining any erroneous

opinion by the Arbitral Tribunal on the basis of fabricated document,

the claim was rejected in entirety.

19 APL978.18 (J)

20. The next important question is whether the first part of

Section 192 of IPC with regard to fabrication of false evidence has been

made out or not. In my view, on this count also the case of the

complainant cannot be accepted. It is true that on 24.03.2003, in

respect of two different contracts, two notices were issued to the

complainant. It is his case that he did not receive notice dated

24.3.2003 in respect of this contract. It is his case that in order to

prove the factum of issuance and service of this notice, at the bottom of

the copy of the said notice, postal receipt of another postal article

bearing No. 3428 dated 24.03.2003 was affixed. It is to be noted that

this notice was not produced by the accused persons to fortify their

claim. This fact can be discerned on reading of paragraph 3 of the

complaint. It is stated in paragraph 3 that this fact was found after

examination of the record produced for inspection as per the direction

issued by the Arbitral Tribunal. The question is whether the facts

stated in the complaint are sufficient to come to a conclusion that the

accused persons had fabricated false evidence ?

21. Perusal of paragraph 4 of the complaint indicates that in

order to justify fabrication of false evidence, an envelope received 20 APL978.18 (J)

under postal receipt No. 3428 dated 24.03.2003 was produced by the

complainant. It is the case of the complainant that postal receipt for

another document No. E/WAB/45/BG dated 24.03.3003 was pasted

on the document at annexure-13, which relates to this contract. It is to

be noted that the complainant had produced only the photo copy of

the envelope. The complainant did not produce the document, which

was received under that envelope. In my view, it was necessary because

the complainant has categorically admitted the receipt of notice dated

24.03.2003 in person on 08.04.2003. It is not the case of the

complainant that this envelope of another document with the

document in question was produced before the Arbitral Tribunal. The

complaint, therefore, does not show that the letter received in an

envelope under postal receipt bearing No. 3428 dated 24.03.3004 was

not in respect of this contract, but it was in respect of different contract.

Perusal of the complaint in entirety would show that all the ingredients

of the offence under Section 192 of the IPC are not prima facie made

out.

22. As stated above, the complaint was filed on 12.04.2007

and the arbitration award was passed on 25.08.2007. Perusal of 21 APL978.18 (J)

paragraph 7 of the complaint would clearly indicate that before passing

the arbitration award by the Arbitral Tribunal, the complainant

formed an opinion that the accused persons have fabricated false

evidence and the fabricated document has led Arbitral Tribunal to

entertain an erroneous view of the matter. This fact clearly indicates

that in the complaint, unfounded allegations were made touching this

point. I, therefore, conclude that if the facts stated in the complaint are

considered in juxtaposition with admitted and undisputed facts, the

minutes of the arbitration proceeding dated 28.06.2005, the

arbitration award and acceptance of the service of notice of termination

of contract by the complainant on 08.04.2003, it clearly indicate that

the offence under Section 192 of the IPC has not at all been made out.

23. The next important issue is with regard to the specific role

attributed to accused nos.1, 2 and 3. A minute perusal of the

complaint would show that no specific role has been attributed to

accused nos.1 to 3. It has not been stated in the complaint as to how

and in what capacity they were concerned with the fabrication of false

evidence. It is further pertinent to note that there is no allegation that 22 APL978.18 (J)

the postal receipt bearing No. 3428 dated 24.03.2003 or any other

postal receipt was fabricated. It, therefore, goes without saying that the

postal receipt was issued by the Postal Authority. It is not the case of

the complainant that immediately before production of the record

before the Arbitral Tribunal, this postal receipt was fabricated. It is

undisputed that on the same day, two letters were sent to the

complainant by the accused persons. Therefore, in my view, the vague

and general allegations made in the complaint are not sufficient to

continue the complaint against accused nos.1 to 3.

24. In view of the above findings, the submissions made by

the learned Senior Advocate for the accused and learned advocate for

the complainant touching Sections 195 and 197 of the Cr.P.C. have

become academic. However, in order to have complete adjudication, it

is necessary to deal with the same. Learned Senior Advocate for the

accused submitted that in this case, without the complaint in writing

by the Arbitral Tribunal, the learned Magistrate was not competent to

take cognizance of the offence. Learned Senior advocate, in short,

submitted that the Arbitral Tribunal is a Court as understood by the 23 APL978.18 (J)

provisions of Section 195 of the Cr.P.C. In order to meet this

argument, learned advocate for the complainant placed heavy reliance

on the decision in Manohar Lal's case (supra). In this case, the Hon'ble

Apex Court has held that the Arbitrator cannot be termed to be a

Court within Section 195 of the Cr.P.C. It is held that, therefore, the

question of applicability of Section 340 of the Cr.P.C. in a proceeding

before the Arbitrator does not and cannot arise. In my view, therefore,

the submissions advanced by the learned Senior Advocate on this point

cannot be accepted.

25. The next important question is with regard to absence of

sanction to prosecute the accused persons, being the government

servants. It is submitted by the learned Senior Advocate for the

accused that no specific role has been attributed to the accused persons

in the complaint. Learned Senior Advocate submitted that the acts

alleged to have been done by the accused were in discharge of their

official duty. Learned Senior Advocate submitted that the mens rea to

maintain the complaint without sanction has not be established.

Learned Senior Advocate, therefore, submitted that in the facts and 24 APL978.18 (J)

circumstances, without obtaining prior sanction, the learned Magistrate

should not have taken cognizance of the offence. Learned Senior

Advocate further pointed out that in fact, the complainant had applied

for sanction, however, he did not get the order. Learned Senior

Advocate submitted that the principle of deemed sanction cannot be

invoked in this case. Learned Senior Advocate, in support of his

submission, has relied on the decision in Amal Kumar Jha .vs. State of

Chhattisgarh and another, reported at (2016) 16 SCC 734. In this

case, the Hon'ble Apex Court has held that one safe and sure test in

this regard would be to consider if omission or neglect on part of

public servant to commit the act complained of could have made him

answerable for a charge of dereliction of his official duty. It is held that

provision of Section 197 Cr.P.C. is available only when the alleged act

done by a public servant is reasonably connected with discharge of his

official duty and is not merely a cloak for doing objectionable act. It is

further held that if he is doing official duty and if he has acted in excess

of his duty, but there is a reasonable connection between the act and

performance of official duty, excess will not be a sufficient ground to

deprive public servant of protection. It is held that the omission 25 APL978.18 (J)

complained of, if found to be intrinsically connected with discharge of

official duty of a public servant, then the protection under Section 197

of Cr.P.C. from prosecution without sanction of the competent

authority, is available to the public servant.

26. As against this, learned advocate for the complainant, in

support of his contention that in this case Section 197 of the Cr.P.C.

would not be applicable, has relied on the decision in Inspector of

Police and another .vs. Battenapatla Venkata Ratnam and another ,

reported at (2015) 13 SCC 87. In this case, it is held that if the

government officer indulges in commission of the offence punishable

under the law, such as cheating, fabrication of record or

misappropriation, it cannot be said to be in discharge of his official

duty. Therefore, he is not entitled for protection under Sectuib 197 of

Cr.P.C.

27. In the facts and circumstances, in my view, the

submissions advanced by the learned Senior Advocate for the accused

deserve acceptance. In view of the finding of fact arrived at by this

Court with regard to the failure of the complainant to establish basic 26 APL978.18 (J)

ingredients of Section 192 of the IPC, the protection under Section

197 of the Cr.P.C. would be available to the accused. The record was

not produced to substantiate the claim. There is no averment in the

complaint attributing specific role to the accused persons. Only

general and vague allegations have been made in the complaint. In the

facts and circumstances, the sanction was necessary to crystalize the

role of accused persons. Therefore, in my view, in this case if the

controversy is looked at from any angle, the accused could not have

been prosecuted without prior sanction. As such, the law laid down in

Manohar Lal's case (supra) would squarely apply to this case. I

conclude that for want of sanction, the learned Magistrate should not

have taken cognizance of the offence against the accused. On this

count also, the accused persons are entitled for the relief.

28. The next important question is with regard to the

maintainability of the application made by accused no.1 for dismissal of

the complaint and for his discharge. At the outset, it has to be held

that after issuance of process in a complaint case, the complaint can not

dismissed by the Magistrate. Dismissal of the complaint on such a 27 APL978.18 (J)

contention, may amount to recall or review of the order of issuance of

the process. Therefore, the question that needs to be addressed is

whether the application for discharge was maintainable.

29. It is to be noted that the complaint was registered as

Regular Criminal Complaint case No. 1208/2007. The offences are

triable by the learned Magistrate. The trial of the complaint would be

governed by Chapter XIX of the Cr.P.C. The first part of this Chapter

deals with the warrant trials/cases instituted on police report. The

second part of this Chapter deals with the procedure for cases

instituted otherwise than on police report. The procedure for such

cases is laid down from Sections 244 to 250 of the Cr.P.C. In this case,

learned Senior Advocate for the accused submitted that in view of the

provisions of Section 245, sub-section 2 of the Cr.P.C., learned

Magistrate was empowered to discharge the accused. It is to be noted

that in a case instituted otherwise than on a police report, before

framing the charge, the stage of recording of the evidence by the

prosecution is provided. Section 246 of Cr.P.C. provides for framing of

Charge on the basis of the evidence recorded before framing of the 28 APL978.18 (J)

charge. In this case, admittedly, evidence of the complainant and the

witnesses was not recorded. On the basis of this fact, learned advocate

for the complainant submitted that the application was not

maintainable.

30. Learned Senior Advocate, in order to substantiate his

submission that the application for discharge was maintainable under

Section 245 of the Cr.P.C., placed heavy reliance on the decision in

Ajoy Kumar Ghose's case (supra). In this case, the Hon'ble Apex

Court has considered this issue. It is held that there is difference

between Section 245(1) and 245(2) of the Cr.P.C. It is held that under

Section 245(1) of Cr.P.C., learned Magistrate has an advantage of

evidence led by the prosecution before him under Section 244 of

Cr.P.C. and he has to consider whether the conviction of the accused

would be warranted, if the evidence remains unrebutted. If there is no

discernible incriminating material in the evidence, then learned

Magistrate has to discharge the accused under Section 245(1) of

Cr.P.C. It is further held that the situation under Section 245(2) of

Cr.P.C. is, however, different. There, the Magistrate has the power to 29 APL978.18 (J)

discharge the accused at any previous stage of the case i.e. even before

the evidence under Section 244 of Cr.P.C. is led. It is also held that

however, for discharging the accused under Section 245(2) Cr.P.C., the

Magistrate has to give a finding that the Charge is groundless. It is

further held that learned Magistrate can take this decision before the

accused appears or brought before the Court or evidence is led under

Section 244 Cr.P.C. The previous stage could be from Sections 200 to

204 of Cr.P.C. and till the completion of the evidence of the

prosecution under Section 244 of Cr.P.C. It is thus held that the

Magistrate can discharge the accused even when the accused appears in

pursuance of the summons or a warrant and even before the evidence

is led under Section 244 Cr.P.C. and makes an application for

discharge.

31. In this case, admittedly, evidence of the complainant

under Section 244 of the Cr.P.C. has not been recorded. Accused no.1

made an application for his discharge. In my view, this discharge

application would be squarely covered and maintainable under Section

245(2) of the Cr.P.C. In view of this settled legal position, the 30 APL978.18 (J)

submissions advanced by the learned Senior Advocate on behalf of the

accused deserve acceptance.

32. On the basis of the facts and appreciation of the material

on record, I conclude that the allegations made in the complaint are

vague and general in nature. No specific role has been attributed to

the accused. Similarly, the facts stated in the complaint and

undisputed facts explicitly crystalize that the basic ingredients of

Section 192 of the IPC have not been made out. The fundamental

ingredient with regard to mens rea is completely absent in the

complaint. Learned Magistrate and the learned Additional Sessions

Judge, as can be seen from the orders, have not taken all these facts into

consideration. Therefore, the orders passed by them are required to be

quashed and set aside.

33. It is seen that the applications for discharge were made by

accused no.1to 3. Accused no.1 only challenged the order of rejection

of his discharge application. Accused nos.2 and 3 however did not

challenge the said order. On consideration of the material, it is found

that no case has been made out for taking cognizance of the offence 31 APL978.18 (J)

under Section 192 of the IPC. In my view, accused nos.2 and 3 would

also be entitled to get benefit of this order. The benefit extended to

accused no.1 cannot be denied to accused nos.2 and 3, more

particularly in view of the finding of fact recorded by this Court.

34. Accordingly, the Criminal Application is allowed.

i] The order dated 17.09.2018 passed by the learned

Additional Sessions Judge-2, Nagpur in Criminal Revision Application

No. 402/2012 and the order dated 18.05.2012 passed by the learned

Judicial Magistrate, First Class, Court No.6, Nagpur in Regular

Criminal Complaint Case No. 1208/2007, are quashed and set aside.

ii] The applications filed by accused nos.1 to 3 for discharge

are allowed. Accused no. (1) Hari Prakash S/o V.N. Tripathi ; (2) P.R.

Hedau ; and (3) Gagan Goel are discharged from the complaint. The

complaint case stands dismissed.

iii] The criminal application stands disposed of.

( G. A. SANAP, J. ) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:24.02.2023 17:31