Bombay High Court
Shriramchandra Ramdas Kunwar And Anr vs The State Of Maharashtra And Others on 1 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:24899-DB
1 cran 460.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.460 OF 2021
1. Shriramchandra Ramdas Kunwar,
age 52 years, Occ. Service,
Working as Deputy Superintendent
Land Records, presently working at Wadwani.
2. Asadkhan Bibankhan Pathan,
age 49 years, Occ. Service as surveyor,
in the office of Land Records, Majalgaon,
at present Georai. Applicants.
Versus
1. The State of Maharashtra,
through it's Secretary,
Home Department,
Mantralaya, Mumbai 400 032.
2. District Superintendent of Police,
Beed, District Beed.
3. Bapusaheb Shantaram Mahajan, age 45 yrs,
Police Inspector, Majalgaon City Police Station.
4. Smt. Neeta Gaikwad,
age 40 yrs, Occ. Assistant Police inspector,
Majalgaon City Police Station,
District Beed.
5. Bapurao Laxmanrao Gawali,
age 80 years, Occ. Agri,
R/o Datta Colony, Majalgaon,
District Beed.
6. Deputy Superintendent of Police Officer,
at Majalgaon, Tq. Majalgaon,
District Beed. Respondents.
...
2 cran 460.21.odt
...
Advocate for Applicants : Mr. S.S. Thombre
APP for Respondent nos.1, 2 & 6 : Mr. A R Kale
Advocate for Respondent no.5 : Mr. A. A. Munde.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
Dated : 01st October, 2024.
...
JUDGMENT :
- (Per S. G. Chapalgaonkar, J.)
1. The applicants (accused nos.6 and 7) have
approached this Court under section 482 of the Criminal
Procedure Code with a prayer to quash and set aside the
proceeding in R.C.C. No.3 of 2021 pending before the learned
Judicial Magistrate First Class, at Majalgaon and also seeks
further directions against respondent nos.1 to 4 to pay the
compensation of Rs.10 Lakh to the applicants.
2. Respondent No.5 had filed Cri.M.A. No.562 of
2018 before the JMFC, at Majalgaon with prayer to issue
directions under section 156 (3) of the Cr.P.C. for registration
of offence against accused persons named therein for offences
punishable under sections 420, 465, 467, 468, 471, 120(b) r/w
34 of the Indian Penal Code.
3. In nutshell, it was contention of the respondent
no.5 that he owns land gat no.11 admeasuring 2H 83 R as per
sale-deed executed by the original owner Dhondabai Raut.
Accused no.1 Janardhan Garje is unconcerned with the land,
however, he indulged in obstructing possession of respondent
3 cran 460.21.odt
no.5. Consequently, respondent no.5 approached Civil Court
vide RCS No.32 of 2004 claiming relief of perpetual injunction
against accused no.1. The suit was contested by accused no.1.
Finally, it has been decreed against accused no.1. The appeal
no.59 of 2014 filed by accused no.1 before the District Judge is
also dismissed. Decree has attained finality.
4. It is further alleged that accused no.1, in collusion
with surveyors made application to the Deputy Superintendent
of Land Records, at Majalgaon for measurement of the land,
which is in the ownership of respondent no.5. On the basis of
such application, notices were issued. False record regarding
service of such notices was prepared. Even, dead person
namely Narayan Sakharam Choudhary is shown to have
received the notice. In pursuance of measurement notices,
false panchnama and measurement report is prepared by the
surveyor and submitted to Tahsil Office for grant of N.A.
permission. Learned Tahsildar made inquiry and found that
measurement report has been falsely prepared. As such,
accused persons created false record with intention to cheat
respondent no.5. Respondent no.5 made complaint as regards
to offences committed by accused persons, however, no
cognizance was taken. Hence, he filed application invoking
section 156 (3) of the Criminal Procedure Code.
5. The learned Magistrate, after considering
averments of the Misc. Cri. Application and documents
tendered before him, partly allowed the application vide order
dated 10.12.2018 and issued directions under section 156 (3)
4 cran 460.21.odt
of Cr.P.C. only against accused nos.1 to 5, however, declined to
issue any directions against accused nos. 6 and 7 i.e. present
applicants.
6. In pursuance of the aforesaid directions, crime
no.371 of 2018 came to be registered with police station
Majalgaon City. Investigation progressed. Finally, charge-sheet
came to be filed against in all 7 accused persons, including the
applicants herein for the offences punishable under sections
420, 465, 467, 468, 471, 120 (b) r/w 34 of the IPC.
7. Mr. Thombre, learned advocate appearing for the
applicants submits that applicants are the Government
servants. Applicant no.1 was Deputy Superintendent of Land
Records, whereas applicant no.2 was surveyor in the office of
the Land Records at Majalgaon. They have discharged their
duties in pursuance of the application submitted by accused
no.1 Janardhan Garje seeking measurement of the land
admeasuring 2H 83R in gat no.11. They are unconcern with
the internal dispute between respondent no.5 and accused
no.1-Janardhan Garje. However, false imputations were made
against them in the Misc. Application No.562 of 2018 by
respondent no.5 regarding preparation of false record.
However, the learned Magistrate, after considering material
tendered into service issued directions under section 156 (3) of
Cr.P.C. to file report of investigation only to the extent of
accused nos.1 to 5 and declined to pass any such order against
applicants-public servants. Ironically, police officers registered
the FIR against all seven persons named as accused in Misc.
Application No.562 of 2018 and proceeded further to cause
5 cran 460.21.odt
investigation leading to filing of final report. According to Mr.
Thombre, respondents/police station officer exceeded
jurisdiction while including names of applicants as accused in
the FIR and carry investigation in furtherance of such
implication. Mr. Thombre would further submit that the
applicants being public servants and allegations against them
are pertaining to acts done during the course of their official
duty; in absence of sanction by competent authority under
section 197 of the Cr.P.C. the Court cannot take cognizance and
proceed further to conduct the trial. He would further submit
that deliberate and intentional act on the part of the police
officers thereby incorporating name of the applicants in the
array of the FIR, contrary to the directions given by the learned
Magistrate has caused mental torture and harassment to the
applicants. Hence, respondent nos.1 to 4 are liable to
compensate the applicants.
8. Per contra, Mr. A.R. Kale, learned APP and Mr. A.B.
Munde, learned advocate appearing for respondent no.5
vehemently opposed prayers in the application contending that
stipulations in the FIR and further investigation is sufficient to
bring home complicity of the applicants in relation commission
of the offence. A triable case is made out against them. It is
further submitted that because some accused persons are
absconding, trial has been prolonged. At this stage, there is no
occasion to entertain the application for quashment of the
proceeding.
6 cran 460.21.odt
9. We have considered the submissions advanced on
behalf of the learned advocates appearing for respective
parties. We have gone through contents of the Cri.M.A.
No.562 of 2018, order dated 10.12.2018 passed by the
J.M.F.C., Majalgaon, contents of the FIR in crime no.371 of
2018 registered with police station Majalgaon and charge-sheet
in RCC No.3 of 2021 filed on conclusion of the investigation.
10. It is apparent that inception of the proceeding is
from Cri.M.A. no.562 of 2018 filed by respondent no.5
invoking powers of the Magistrate under section 156 (3) of
Cr.P.C. Respondent No.5 made prayer for issuance of directions
under section 156 (3) of Cr.P.C. against in all 7 accused persons
with stipulation that accused no.1 Janardhan Garje, who is
unconcern with the land owned by him, made an application
depicting himself to be the owner of the land and caused
measurement through the Land Record Authorities. Further,
prepared a measurement map and report that was placed
before Tahsildar in his application for grant of NA permission.
The learned Magistrate, on consideration of the stipulations in
the application made by respondent no.5 found that there is
sufficient material to make out cognizable case against accused
nos.1 to 5 named in the application, however, observed that
from act of accused no.1, it cannot be said that accused nos.6
and 7 made collusion with him. It is further observed that
report of the Tahsildar reflects false action of accused no.1 and
not accused nos.6 and 7. Accused nos.6 and 7 were duty
bound to measure the land on getting the application.
Therefore, prima facie involvement of accused nos. 6 and 7 is
7 cran 460.21.odt
not discernible so as to call report of investigation under
section 156 (3) of Cr.P.C.. With these observations, the learned
Magistrate declined to pass any order as regards to accused
nos.6 and 7 and restricted directions under section 156 (3) of
Cr.P.C. to the extent of accused nos.1 to 5.
11. In pursuance of the directions of the learned
Magistrate under order dated 10.12.2018, it was expected that
police station officer would register the FIR only against
accused nos.1 to 5. However, FIR shows that accused nos.6
and 7 (present applicants) were also added in the column of
accused and on completion of the investigation, they are also
charge-sheeted. We are of the considered view that such an
action on the part of the police station officer was ultra-vires.
Consequently, registration of the FIR and eventual
investigation leading to filing of the charge-sheet to the extent
of applicant nos.1 and 2 is illegal.
12. One more important facet of the matter, which
needs to be highlighted, is that, respondent no.5 had
approached the learned Magistrate under section 156 (3) of
Cr.P.C. seeking directions for the investigation. Section 156 (3)
of Cr.P.C. reads as under :-
156. Police Officer's power to investigate cognizable case :-
(1) ....................................
(2) ....................................
(3) Any Magistrate empowered under section 190 may
order such an investigation as above-mentioned.
State Amendments
(Goa)- ......................
8 cran 460.21.odt
[Maharashtra] -
In it's application to the State of Maharashtra, in
section 156, after sub-section (3), add the following
provisos, namely :--
"Provided that, no Magistrate shall order an
investigation under this section against a person who
is or was a public servant as defined under any other
law for the time being in force, in respect of the act
done by such public servant while acting or purporting
to act in the discharge of his official duties, except
with the previous sanction under section 197 of the
Code of Criminal Procedure, 1973 (2 of 1974) or
under any law for the time being in force :
Provided further that, the sanctioning authority shall
take a decision within a period of ninety days from the
date of the receipt of the proposal for sanction and in
case the sanctioning authority fails to take the
decision within the said stipulated period of ninety
days, the sanction shall be deemed to have been
accorded by the sanctioning authority.".
13. Plain reading of the aforesaid provision, in its
application in Maharashtra would depict that in case of the
application seeking directions under Sub-clause (3) of Section
156 of Cr.P.C, Magistrate can order an investigation against the
public servant in respect of the act done during course of or
discharge of his official duty, only when previous sanction
under section 197 of the Cr.P.C. has been obtained. From
aforesaid provision it is discernible that the previous sanction
under section 197 of Cr.P.C. is condition precedent even for
issuing directions for investigation in exercise of of powers
under sub-clause (3) of section 156 of Cr.P.C. The second
proviso appended to Maharashtra amendment prescribes that if
the application is made to the sanctioning authority and
9 cran 460.21.odt
proposal for sanction is not decided within a period of 90 days,
the Magistrate may presume deemed sanction.
14. To ascertain as to whether any proposal was made
in this regard to the sanctioning authority, we called upon the
learned APP to take instructions. On getting such instructions,
he made candid statement that no such proposal was made in
the present case. In this background, we find that even the
Magistrate had no jurisdiction to entertain the application for
issuing directions to investigate against the applicants/public
servants. We find that the learned Magistrate has rightly
declined to issue directions as prayed by respondent no.5
against the applicants albeit for different reasons. In light of
the aforesaid factual and legal position, we are inclined to
exercise our inherent powers under section 482 of the Cr.P.C
and quash and set aside the FIR and consequential proceeding,
which according to us is nothing but an abuse of process of
law.
15. Although, prayer is made for grant of
compensation, attributing illegalities on the part of the
respondent nos.3 and 4, i.e. police station officers at
Majalgaon, we are not inclined to entertain such prayer for
want of adequate details as regards to harassment and
consequential losses suffered by the applicants. However, we
deem it appropriate to relegate the applicants to appropriate
forum to pursue the prayer for compensation. In case, the
applicants invoke such alternate remedy, the period of
10 cran 460.21.odt
pendency of this application shall be exempted while counting
limitation, if any, prescribed under law.
16. In view of the aforesaid observations, we proceed
to pass the following order.
ORDER
i. Criminal Application is partly allowed.
ii. The proceeding bearing R.C.C. No.3 of 2021
pending before the learned Judicial Magistrate
First Class, at Majalgaon is hereby quashed and
set aside to the extent of applicants herein i.e.
(accused nos.6 and 7) only.
iii. The applicants shall be at liberty to prosecute
their remedies as permissible under law as
regards to prayer clause "C" of the application in
line with the observations made herein above.
iv. Criminal application stands disposed off.
( S. G. CHAPALGAONKAR ) ( SMT. VIBHA KANKANWADI )
Judge Judge
...
aaa- (f).
