Bombay High Court
Atul Ashok Mundada vs The State Of Maharashtra And Others on 2 September, 2024
2024:BHC-AUG:20112
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2368 OF 2022
Atul Ashok Mundada,
Age : 45 years, Occu. Agriculture & Business,
R/o Plot No.52, Mundada Nagar, Jalgaon,
Taluka & District Jalgaon. ... Applicant.
Versus
1. The State of Maharashtra,
2. Kailas Pandurang Bagul,
Age 57 years, Occu. Service,
Presently Town Planner,
Valuation Department, Nashik.
R/o 3rd Floor, N.D.A. Tower,
Sambhaji Chowk, Untwadi,
Nashik, Taluka & Dist. Nashik.
Now R/o A.D.T.P. Jalgaon City Municipal Corporation,
Office of Jalgaon City Municipal Corporation,
Jalgaon, Dist. Jalgaon.
3. Nitin Balmukund Laddha,
Age : 56 years, Occu. Business,
R/o Laddha Farm House, Near Ajintha Square,
Jalgaon, Tal. & Dist. Jalgaon. ... Respondents.
AND
CRIMINAL APPLICATION NO.2383 OF 2022
Atul Ashok Mundada,
Age : 45 years, Occu. Agriculture & Business,
R/o Plot No.52, Mundada Nagar, Jalgaon,
Taluka & District Jalgaon. ... Applicant.
Versus
1. The State of Maharashtra,
2. Nitin Balmukund Laddha,
Age : 56 years, Occu. Business,
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R/o Laddha Farm House, Near Ajintha Square,
Jalgaon, Tal. & Dist. Jalgaon. ... Respondents.
...
Advocate for Applicant in both application : Mr. Girish S. Rane.
APP for Respondent-State in both applications : Mr. D. J. Patil.
Advocate for Respondent No.2 in Appln/2368/2022 : Mr. P. R.
Katneshwarkar (Senior Advocate) i/b Mr. A. R. Syed.
Advocate for Respondent No.3 in Appln/2368/2022 & Res.
No.2 in Appln/2383/2022 : Mr. M. S. Deshmukh i/b Mr. S. H.
Tripathi.
...
CORAM : S. G. MEHARE, J.
RESERVED ON : 25.07.2024
PRONOUNCED ON : 02.09.2024
JUDGMENT :
-
1. Heard the learned counsels for the respective parties.
2. The same applicant, by two separate applications under
Section 156(3) of the Code of Criminal Procedure ("Cr.P.C." for
short) approached this Court under Section 482 of the
Criminal Procedure Code against the orders of the learned
Judicial Magistrate First Class and the learned Additional
Sessions Judge rejecting his prayer to issue directions under
Section 156(3) of the Cr.P.C. to order the investigation of the
crime by the police against the respondents, who were the then
Mayor of the Corporation and the Assistant Director, Town
Planning of the Municipal Corporation, Jalgaon.
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3. Before adverting to the issues raised in these applications
how the applicant got the title is essential to know the nature
of the property. One Tulshiram Krushna Bari as shown in the
sale deed 20.04.2015, was the tenant of Gut No.97/3
measuring 56 R. of Mauza Pimprala. The recital of the said sale
deed further reveals that he was holding the land under section
43 of the Tenancy Act. He paid the Nazrana to the Tahasildar
and released the conditions. He took the Mutation Entry in his
name. On, 20.04.2015, he sold it to the petitioner and others
for Rs.21,00,000/- (Twenty One Lakhs). The sale deed of Field
Gut 115/4 of Mouza Pimprala dated 30.12.2013 shows that
Devidas Hari Bari sold it to the petitioner and one another
(who was vendor cum purchaser) for Rs 15,00,000/- (Fifteen
Lakhs). The applicant, Atul Mundada, took that land for
development. The consent of Sou. Sonal Vivekanand Kulkarni
was obtained for the registered sale deed. However, why Sou.
Sonal Vivekanand Kulkarni, was consenting party to the
document is not clear. The columns of the class of land in 7/12
extract of both fields attached to the sale deeds were blank. It
does not reflect, whether it was a class I or Class II land. It
seems that it was the tenanted land. However, everything is
silent about it. The record reveals that applicant Atul, was
persuading a Court proceeding since 2011. One of the petitions
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under Section 127 of the Maharashtra Regional Town Planning
Act was filed under his Power of Attorney. He secured the
orders from this Court, that the Municipal Corporation would
acquire both these lands. The Municipal Corporation
accordingly consented to acquire the lands. Then, the
proceeding under the Land Acquisition Act (new) was initiated.
Both properties were purchased for Rs.36,00,000/- (Thirty Six
Lakhs). The compensation for Rs.5,98,27,436/- (Rupees Five
Crore Ninety Eight Lakhs Twenty Seven Thousand Four Thirty
Six) was valued just within a year of the purchase of Gut
No.97/3 and three years of purchasing Gut No.115/4. Such a
huge profit was made. After passing the award, the Land
Acquisition Officer communicated to the Municipal
Commissioner to deposit the compensation amount determined
by him.
4. The applicant has further case that the Commissioner of
the Municipal Corporation approved the office not put by the
Planning Department on 31.01.2017 for releasing the
compensation amount. However, instead of sending the said
bill to the Finance Department, accused Nos.1 and 2 hatching a
conspiracy and deliberately forwarded it to the office of the
Mayor i.e. accused No.2. Subsequently the office notes and
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other files were illegally disposed of by accused No.1.
Respondent No.2 has no role to call the note sheets and the
relevant papers approving the bill to deposit the money with
the Land Acquisition Officer. In a nutshell, the applicant has a
grievance that only with a view to put him to the loss,
respondent No.2 took the officers of the Corporation into
confidence and deprived him of the compensation and to
deprive him, he destroyed the record and passed a forged and
fabricated resolution in a meeting having no subject.
5. The applicant had lodged the report to the
Superintendent of Police, Jalgaon. It was made over to the
Municipal Corporation for inquiry. The inquiry was entrusted
to the Deputy Commissioner, M.N.C (Administration). Then the
applicant had submitted all relevant documents to him.
However, he did not make an inquiry seriously. He lodged the
complaint to S.P. Jalgaon on 03.03.2020. The police did not
register crime. Hence, he made the complaint to the
Superintendent of police. Then, he filed two separate
applications under Section 156(3) of the Cr.P.C. for an order to
direct the Police to investigate the crime for the offences
punishable under Sections 166, 167, 177, 201, 202, 204, 218,
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120-B read with Section 34 of the IPC and Sections 8 and 9 of
the Maharashtra Public Records Act.
6. Both the learned Judicial Magistrate First Class as well
as the learned Additional Sessions Judge declined to issue the
direction under Section 156(3) of the Cr.P.C. Learned
Magistrate kept the option open to the applicant to treat his
application as a complaint under Section 2(d) of the Cr.P.C. He
directed the applicant to intimate whether he would continue
the proceeding as a complaint case on the next date. Since the
applicant did not intimate, the Court of Judicial Magistrate
First Class disposed of the case by subsequent order.
7. Learned counsel Mr. Rane for the applicant has
vehemently argued that both the Courts have erred in law in
not exercising the powers under Section 156(3) where prima
facie cognizable offence is made out. He has vehemently
argued that once the material placed before the Magistrate is
sufficient to believe that the cognizable offences made out, the
Court has no option except to issue the direction under Section
156(3) of the Cr.P.C. He has vehemently argued that the
learned Additional Sessions Judge has passed the mechanical
order and did not apply his mind. In a cut and paste practice,
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he has interchanged the facts of one case with the other case.
He did not even deal with the grounds of the objection and the
facts pleaded in the complaint. He would submit that the acts
of the accused/respondents were intentional and deliberate.
The applicant had a good case on merit for an order under
Section 156(3) of the Cr.P.C. He also went on to argue that the
Sessions Court was so negligent while passing the impugned
order that could be seen from his observation referring to
Section 18 of the old Acquisition Act. He took this Court
through the facts pleaded in the complaints. He relied on the
bunch of case laws and argued that both orders are liable to be
quashed and set aside and directions to be issued under
Section 156(3) of the Cr.P.C. In alternative, he prayed for
remitting the matter to the Sessions Court for passing a
reasoned order.
8. Per contra, learned counsel Mr. Katneshwarkar,
appearing for respondent No.2 in Criminal Application
No.2368 of 2022, has strongly opposed the application
primarily on the ground of tenability of the petition impugning
two orders. He would submit that the subsequent orders
disposing of the application on failure to intimate the Court to
continue or treat the application as a complaint could not be
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considered here, and if it is considered there will be conflicting
opinion of the Court. He would submit that these are the two
distinct orders. Hence, the applications are not tenable.
9. The tone of his argument was that the respondents were
public servants. Section 486 of the Maharashtra Municipal
Corporation Act protects the acts done by the public servant in
good faith. They had performed their official duties. He has
referred to the amended provisions of Section 156(3) of the
Cr.P.C of the State of Maharashtra and argued that since the
sanction was not obtained, the Magistrate was not empowered
to pass an order under Section 156(3) directing the
investigation by police. Respondent No.2 did not commit an
offence. Therefore, no offence is made out. That apart his role
was only to place the office notes before the meeting. None of
the grounds raised in the application constitute a cognizable
offence. Since a cognizable offence is not made out to order
investigation under Section 156 (3) of Cr.P.C. Relying on the
few case laws, he prayed to dismiss the applications.
10. Learned counsel Mr. Karpe, appearing for Mayor in both
cases, adopted the arguments on law points advanced by
learned counsel Mr. Katneshwarkar. He added that as per
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Section 48 Clause (B) of the Municipal Corporation Act, the
Corporation Secretary is a custodian of the papers and
documents. The mayor is not the custodian of the documents.
Therefore, he cannot be blamed for destroying the record. He,
being the Mayor had to sign the papers placed for his approval
or sanction. The applicant did not join all 48 Corporators, who
had passed the resolution unanimously. That goes to show that
the petitioner has a personal grievance against the mayor. The
view taken by the Magistrate is a possible view. In every case,
powers under Section 156(3) of the Cr.P.C. shall not be
exercised. The order of the Sessions Judge indicates the
application of mind. He also relied on certain case laws. He
would submit that filing such false and frivolous complaints
deterring the public servants in discharging their duties is an
abuse of the process of law.
11. Both learned counsels for the respondents would submit
that the applicant is barely interested in compensation. The
legal remedy is available to him. He cannot apply such a
coercive method to recover the compensation. They again
prayed to dismiss the applications.
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12. In reply, learned counsel Mr. Rane has argued that in the
case of Sanjay relied upon by him, it has been clarified when
the sanction is required for taking cognizance against the
public servant. The sole exception under the amended
provisions of Section 156(3) is that the public servant must
discharge or commit the act in his official capacity. While
dealing with the issue of sanction, the nature of the act alleged
is important. He would submit that the judgment of Nikhil
relied upon by the respondent has been redundant in view of
the case of XYZ relied upon by him wherein the word "may"
used in Section 156(3) has been read as "shall" by the
Supreme Court. Therefore, on an application under Section
156(3) if the cognizable offence is made out, the Magistrate is
bound to direct the investigation. He relied on the case of
Sindhu Janak Nagargoje Vs. State of Maharashtra and others
in Criminal Appeal No.2351 2023 (arising out of SLP (Cri.)
No.5883 of 2020). In that case, the case of Lalita Kumari Vs.
State of Uttar Pradesh and others ; (2014) 2 SCC 1 was
considered, and it has been observed that in view of the ratio
laid down in such cases the registration of FIR is mandatory
under Section 154 of the Cr.P.C. if the information discloses
commission of cognizable offence. He further relied on the case
of Shadakshari Vs. State of Karnataka and others ; MANU
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Supreme Court 0042 of 2024. A complaint was filed against
the applicant for irregularly creating the documents of property
in the name of the deceased person despite knowing that those
were fake documents, such as the death certificate, family tree
of the original successor of the land of the appellate etc., for
illegal gain. The accused/respondent No.2 had filed a petition
under Section 482 of the Cr.P.C. for quashing of the FIR
registered on the above allegations. The High Court recorded
the findings that there were specific and serious allegations
against respondent No.2, even as to the creation of the death
certificate of a living person. A reading of the FIR made out a
case for investigation, and it was too premature to interfere
with such FIR. Adverting to the case of Lalita Kumari, the High
did not interfere, though granted liberty to respondent No.2 to
seek his legal remedy in the event of any adverse report is
made. Subsequently, a report under Section 173 of Cr.P.C. was
submitted for the offences punishable under Sections 471, 468,
467, 465, 420, 409, 409, 466 and 423, read with Section 34 of
the IPC. Again, respondent No.2 approached the High Court
under Section 482 of the Cr.P.C. for quashing the complaint
dated 19.12.2016. The question before the Court was whether
sanction was required to prosecute respondent No.2 (public
servant), who faces accusation, amongst others, of creating
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fake documents by misusing his official position as a Village
Accountant, thus the public servant?
13. The expression of "official duty" defined in the case of
State of Orissa Vs. Ganesh Chandra Jew; (2004) 8 SCC 40 was
referred to, which means the act or omission must have been
done by the public servant in the course of his service and that
it should have been done in discharge of his duty. Section 197
of the Code of Criminal Procedure does not extend its
protective cover to every act or omission done by a public
servant while in service but restricts its scope of operation to
only those acts or omissions which are done by a public servant
in discharge of official duty. Further, it was held that a view can
be taken that manufacturing of such documents or fabrication
of records cannot be a part of the official duty of a public
servant. If that be the position, the High Court was not justified
in quashing the complaint as well as the charge sheet in its
entirety, more so when there are two other accused persons
besides respondent No.2.
14. He further relied on the case of Sanjay Nathmal Jain and
others Vs. The State of Maharashtra and others;
MANU/MH/4412/2023. The facts of that case, were that the
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landlord was interested in seeking possession of the premises
let out to tenants. The tenants had filed the suit for injunction
against the landlord and subsequent purchasers restraining
them from obstructing their possession over the property. The
landlord committed suicide. The deceased left the suicide note.
However, no offence was registered. Tenants were called to
the Police Station, and they were detained for more than 24
hours. While they were in police custody, the premises were
demolished. The documents were executed from them in the
presence of the police personnel. The contents of the document
were approved by PI of Police Station. The documents were to
the effect that the tenants were voluntarily surrendering
tenancy rights in favour of the landlord. The landlord had filed
an application under Section 156(3) of the Cr.P.C. The learned
Magistrate after verification of the complaint, directed the
inquiry under Section 202 of the Code of Criminal Procedure.
However, dissatisfied with the said order, the revision was
preferred before the learned Sessions Court. The learned
Sessions Court, by its order, directed that his application be
forwarded to the concerned Police Station for investigation
under Section 156(3) of the Cr.P.C. That order was impugned
before the High Court. The High Court observed that prima
facie perusal of the facts on record indicates that the
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cognizable offences were committed, and in such
circumstances, it was not open for the Magistrate to refuse
investigation under Section 156(3) of the Cr.P.C. Thus, once
cognizable offence is made out, it is duty of the Magistrate to
exercise powers under Section 156(3) and direct investigation
therein.
15. He further relied on the case of Kisan Baliram Rathod
and others Vs. State of Maharashtra ; MANU/MH/4486/2023 .
In this case, the question was regarding the sanction under
Section 197 of the Cr.P.C. The case of Station House Officer,
CBI/ACB/Banglore Vs. B. A. Shrinivasan and another; 2020
ALL SCR (Cri.) 163, was referred. In the said case, the Hon'ble
Supreme Court held that the protection under Section 197 of
the Cr.P.C. is available to the public servants when an offence is
said to have been committed 'while acting or purporting to act
in discharge of their official duty', but where the acts are
performed using the office as a mere cloak for unlawful gains,
such acts are not protected. In order to come to the conclusion
whether the claim of the accused that the act he did in the
course of the performance of his official duty was a reasonable
one and neither pretended nor fanciful, can be examined
during the course of trial by giving opportunity to the defence
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to establish it. The question of sanction should be left open to
be decided in the main judgment which may be delivered upon
the conclusion of the trial.
16. Further, he relied on the case of XYZ Vs. State of Madhya
Pradesh and others ; 2022 SCC OnLine SC 1002 . The facts of
this case were that the victim/appellant was working as a Yoga
Instructor at some institute. Respondent No.2, at the relevant
time, was the Vice Chancellor of the institute. It was alleged
against him that he touched the victim inappropriately at the
institute, upon which she disengaged herself and shouted at
him. She lodged a complaint with the police station,
apprehending that the police had not taken any action. She
found that no action had been taken on her complaint. She
again filed another complaint to the Superintendent of Police
and both the Superintendent and to the P.S. Gole Ka Mandir
again on 24.02.2020. Eventually, the appellant moved to the
Judicial Magistrate First Class, Gwalior, under Section 156(3)
of the Cr.P.C. on 26.02.2020. The JMFC directed the police to
file a status report. It appears that the proceedings before the
JMFC were delayed due to the onset of the Covid-19 pandemic.
The Internal Complaints Committee was constituted. Again the
case of Lalita Kumari was considered in this case.
16 Cri.Appln.2368-22+1.odt
17. The learned counsel Mr. Katneshwarkar relied on the
case of this Bench in Criminal Application No.2816 of 2018
Nikhil s/o Dhondiram Katke Vs. The State of Maharashtra and
others, dated 25.04.2019. In that case, an application under
Section 156(3) of the Cr.P.C. was filed. However, instead of
directing the investigation, the learned Magistrate granted
liberty to the applicant to adopt the later course under Section
200 of the Code by treating the application filed by the
applicant as a complaint under Section 2(d) of the Code. In
that case, various pronouncements of the different High
Courts, and Hon'ble Supreme Court were placed before the
Court. The Court considered those judicial pronouncements.
The case of Dhariwal Tobacco Products Ltd. and others Vs.
State of Maharashtra and another; AIR 2009 SC 1032 was also
referred to. In that case, it was held that there is no
impediment entertaining the present petition (under Section
482 of the Cr.P.C.) even after efficacious remedy is available to
the petitioner.
18. In Nikhil's case (supra), this Court referred to the case of
Panchbhai Popatbhai Butani and others Vs. State of
Maharashtra and others; 2010(1) B. Bom.C.R.(Cri.) 1, in which
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the Full Bench held that reference to the provision of Section
190 in Section 156(3) of the Code is merely to determine the
jurisdiction of the Magistrate to whom the application has to
be made by the aggrieved person or the complainant. It does
not controls the powers of the Court to direct registration
and/or investigation as contemplated under Section 156(3) of
the Code. It has also been observed that the detail factual
allegations are not necessary for an application under Section
156(3) Cr.P.C. nor any format has been prescribed for the same,
including the prayer clause. It is for the complainant or the
aggrieved person to decide, whether he wishes the matter to be
invested under Section 156(3) of the Code, or whether his
application is to be treated as a regular "complaint" under
section 200 of the Code. It is for the complainant or aggrieved
person to bring it to the notice of the Court under Section
156(3) of the Code that despite intimation to police, it has
failed to act and investigate into a cognizable offence in
accordance with law. In the aforesaid Panchabhai's case, the
then Lordship further elucidated that once such a petition
under Section 156(3) is presented, the learned Magistrate is
free to exercise appropriate jurisdiction in accordance with law
and at the request of the complainant. But, it cannot be
rejected by the Court merely on the ground that it does not
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contain the proper prayer clause insofar as it discloses the
commission of a cognizable offence. In paragraph No.55 of the
aforesaid Panchbhai''s case, has observed thus:
"55. ................. Even in Criminal jurisprudence, the law
of pleading is applicable to certain extent. Thus, where a
person files a complaint under section 200 of the Code of
Criminal Procedure, he is expected to state the facts, giving
details and correct versions which would amount to
committing of an offence alleged. It has to satisfy the basic
ingredients of such an offence and it is expected of the
complainant to make a proper complaint as contemplated
under section 2(d) of the Code with appropriate prayers.
In contradistinction to this, such strict rule of pleadings
cannot be made applicable to the provisions of section 156
(3) of the Code as it is result of a default and even
intimation in appropriate format may suffice the purpose
in some cases. That certainly does not mean that under
section 156 (3) properly drafted petition cannot be moved.
Rather if a petition with complete facts, stating detailed
and definite events essential to constitute the offence
alleged to have been committed is presented and the
prayers have been made, discretion of the Magistrate
would be much wider than merely directing investigation
in terms of section 156(3) and the Court even could take
cognizance of the offence if the complaint is filed under
section 200 of the Code. If a complaint does not disclose a
cognizable offence with proper facts, it may be liable to be
dismissed and/or rejected by the Magistrate."
19 Cri.Appln.2368-22+1.odt
19. The learned counsel Mr. Katneshwarkar also referred to
the case of Ramdeo Food Products Vs. State Gujarat; AIR 2015
SC 1742. It has been observed in paragraph No.22 as follows;
"22. Thus, we answer the first question by holding that
the direction under Section 156(3) is to be issued, only
after application of mind by the Magistrate. When the
Magistrate does not take cognizance and does not find it
necessary to postpone issuance of process and finds a
case made out to proceed forthwith, direction under the
said provision is issued. In other words, where on
account of credibility of information available, or
weighing the interest of justice, it is considered
appropriate to straightway direct investigation, such a
direction is issued. Cases where Magistrate takes
cognizance and postpones issuance of process are cases
where the Magistrate has yet to determine "existence of
sufficient ground to proceed" Category of cases falling
under Para.120.6 in Lalita Kumari (supra) may fall under
Section 202. Subject to these broad guidelines available
from the scheme of the Code, exercise of discretion by
the Magistrate is guided by interest of justice from case to
case."
20. In Nikhil''s case (supra), it has also been observed that
the application under Section 156(3) would fall within the
category of such applications cannot be turned as a 'complaint'
under Section 2(d) of the Code. Moreover, as described above,
there is a distinction between the application under Section
20 Cri.Appln.2368-22+1.odt
156(3) and a complaint defined under Section 2(d) of the
Code. But it cannot be overlooked that the powers under
Section 156(3) warrants application of judicious mind, and the
applicant or aggrieved person, on its own whim, invoke the
authority of the Magistrate. It is to be borne in mind that the
use of word "may" in Section 156(3) instead of "shall" is very
significant and clearly indicates the discretion to be exercised
by the Magistrate in the matter, and he can, in appropriate
cases, refuse to order an investigation. Therefore, it is
fallacious to appreciate that, after receiving the application
under Section 156(3), the Magistrate is duty-bound to pass an
order to register the case and investigate if the cognizable
office is disclosed.
21. He further relied on the case of Sainath Ramrao
Thombre Vs. State of Maharashtra and another ; 2018 ALL MR
(Cri.) 2151. In that case, it has been held that the complaint
filed after 01.11.2016 (Amendment to Section 156(3)
Maharashtra), without obtaining sanction, when the amended
provision was in force, Magistrate, had no jurisdiction to issue
direction for the investigation without sanction.
21 Cri.Appln.2368-22+1.odt
22. The arguments of the learned counsel of
respondent/Mayor were also the same that in view of Section
482 of the Maharashtra Municipal Corporation Act, and
Section 21 of the IPC and 197 of the Cr.P.C., Magistrate had no
jurisdiction to issue direction for investigation without
sanction. He referred to Section 197 of Cr.P.C. and raised the
point that only action against the public servant could be taken
if not done in discharge of the official duty. However, if the
official duties were discharged or acts purported to be done in
discharge of official duties, the public servants are protected
under Section 197 of the Cr.P.C. He reiterate similar arguments
of learned counsel Mr. Katneshwarkar about the powers of the
Magistrate under Section 156(3) and pointed out that it cannot
be mechanically exercised. There must be satisfaction of the
Magistrate.
23. He also raised the point that the order dismissing the
petition for default is not maintainable in the present
applications. The learned Magistrate had refused to issue
direction under Section 156(3) but granted liberty to the
complainant to keep the said application as complaint under
Section 2(d), the time was granted to intimate the Court by the
next date. That order was assailed in revision. The learned
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Sessions Court also dismissed the said revision. Accordingly,
on 17.09.2021, learned Magistrate pleased to dispose of the
complaint in view of non-compliance of the order dated
07.02.2021. Therefore, that order could not be challenged in
these applications. He also challenged the locus of the
applicant, and submits that the allegations that the accused
counter file the noting of the office of Jalgaon City Municipal
Corporation in that event, the Commissioner or Officer
appointed by him through the proper person to raise and lodge
the complaint. The Commissioner of the Corporation by its
letter dated 26.12.2019, specifically stated that in this matter,
no criminal act causing financial loss to the Municipal
Corporation occurred. Therefore, the applicant had no locus to
file the applications.
24. Learned counsel for the respondents also argued that it
is not the rule of law to issue the investigation under Section
156(3). Magistrate has to pass the appropriate orders after
application of mind. If the Magistrate does not find it necessary
to take cognizance, he may postpone the issuance of the
process. The law laid down in Lalita Kumari relied upon by the
applicant was also considered in the case of Ramdeo Food
Products (Supra).
23 Cri.Appln.2368-22+1.odt
25. The law is settled on the powers under Section 156(3) of
Cr.P.C., the Court does not find substance in the complaint the
Magistrate is not bound to direct the investigation under
Section 156(3). The Magistrate has the discretion to exercise
the powers under that section. Granting an opportunity to treat
the application under Section 156(3) as a complaint under
Section 200 of the Cr.P.C. is not illegal.
26. The question has been raised can the petitioner seek to
quash the order of disposing of the case since he did not
inform the Court to treat the application as a complaint.
27. The facts reveal that the applicant did not opt to treat
the application as a complaint. Hence, the learned Magistrate
dispose of the application as he did not exercise the powers
under Section 156 (3) of the Cr.P.C. In the circumstances, it
would be difficult to accept the case of the applicant that order
disposing of the application finally could be impugned before
this Court. He can not play hot and cold at a time.
28. The burden was on the petitioner to satisfy the Court
that there was a material to direct investigation under Section
156(3) of the Cr.P.C. The learned Magistrate, after discussing
24 Cri.Appln.2368-22+1.odt
the facts and some case laws, passed the order rejecting the
prayer under Section 156(3) of the Cr.P.C. The reasons have
also been recorded that there is no actual necessity of any
investigation for the collection of the evidence as the complaint
was based upon documentary evidence. There was no
possibility of destroying or tampering with the evidence. It
would be a drastic step to give directions to lodge an FIR
against an individual, specially, when the documentary
evidence is available on record. Therefore, it would not be
proper to issue directions for investigation under Section
156(3) of the Cr.P.C. The application squarely falls within the
ambit of definition of complaint under Section 2(d) of Cr.P.C.
The order was speaking. It reflects that the Court has applied
the mind.
29. Learned revisional Court also passed the order in detail,
considering the facts of the case and after hearing the
respective learned counsels. The learned revisional Court
discussed the procedure for the recovery of the compensation
passed under the Land Acquisition Act. The revisional Court
observed that the dispute is with respect to the disbursing of
the amount by the Municipal Council, Jalgaon, to the
petitioner. It is further observed that it appears from the record
25 Cri.Appln.2368-22+1.odt
that there was a correspondence with the Municipal Council by
the petitioner himself as well as through the Land Acquisition
Officer for compensation. If it is a fact, then instead of getting
the execution of the award through proper forum, it appears
that petitioner is saddling the responsibilities over respondent
Nos.2 and 3. The revisional Court has specifically observed that
it appears that the petitioner failed to follow the statutory
procedure or requirement strictly under the Land Acquisition
Act. Instead of following the procedure to get the
compensation for his acquired lands, it appears that the
petitioner was bent upon targeting respondents Nos.2 and 3.
Respondent Nos.2 and 3 were neither interested parties to the
award nor part of any dispute that arises to have the
apportionment of the award or any part thereof. Therefore, the
Court expressed the opinion that it is not the case to issue
directions to the police under Section 156(3) of the Cr.P.C. to
investigate the matter. It has upheld the order of the learned
Judicial Magistrate First Class.
30. Both orders impugned before this Court were passed
after applying mind. Both Courts have exercised the discretion
to exercise powers under Section 156 (3). They did not
26 Cri.Appln.2368-22+1.odt
mechanically pass the orders as prayed. Hence, there is no
reason to interfere with the impugned orders.
31. The objection has been raised that the respondents were
public servants. Therefore, the sanction under Section 197 is
essential. The learned counsels for the respondents have
advanced the arguments and relied upon the case laws.
However, the learned Judicial Magistrate First Class did not
touch the issue.
32. Section 197 of the Cr.P.C. provides that when the
prosecution is against the public servant, the Court shall not
take cognizance of such offences, except with the previous
sanction of his employer. The State of Maharashtra added two
provision to Section 156(3) of the Cr.P.C., which provides that
no Magistrate shall order an investigation under that Section
against the public servant as defined under any other law for
the time being in force, in respect of the acts done by such
public officer, while acting or purporting to act in discharge of
his official duties, except with previous sanction under Section
197 of the Cr.P.C. or under any law for the time in force.
Admittedly, the petitioner did not produce any such application
addressed to the competent authority. The allegations levelled
27 Cri.Appln.2368-22+1.odt
against the respondents purporting to act in the discharge of
their official duties. There was nothing to believe that
respondents exceeded their powers and does an extraneous act
which was not their official duty. Therefore, the Court accepts
the arguments of the learned counsel for respondent Nos.2 and
3 that the application was bad for no previous sanction as per
Section 197 of the Cr.P.C. (Maharashtra Amendment).
33. The applicants were interested in getting compensation
for the acquisition of land. It also smells foul from the nature
of the allegation. The dispute might have probably arose
between the then Mayor and the applicant. Therefore, the
compensation was not paid even though the Municipal
Commissioner had put the note.
34. The question is whether changing the administrative
decision is an offence?
35. The financial decisions in Administration are flexible,
and depend on the situation demands. Their decision does not
bind them if the expenses over the different head are not
feasible. It's a policy decision of the institutions. Here, there
was no case that the respondent Nos.2 and 3 denied the
passing of the award. Mere misplacing or missing the papers
28 Cri.Appln.2368-22+1.odt
did not affect the rights of the petitioner nor it is an offence.
However, the reasons best known to the applicant, why he was
insisting on recovering the amount without taking proper
recourse from the Court of law. The allegations do not reflect
that the respondents had ill intentions in not implementing the
office notes. The acquiring body has a right to verify the facts.
The contents of the complainant do not make out a cognizable
offence against the respondents. Filing such a complaint seems
to be a sheer pressurizing tactic on the public servants. The
impugned orders are legal and proper.
36. For the above reasons, both criminal applications stand
dismissed with costs of Rs.25,000/- each to be paid to the
respondent Nos.2 and 3, respectively.
37. R and P be returned to the learned Trial Court.
(S. G. MEHARE, J.)
...
vmk/-
