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2006 DIGILAW 1696 (BOM)

Bhagwan Yeshwant Kulkarni v. State of Maharashtra

2006-10-13

J.H.BHATIA

body2006
JUDGMENT The applicants in both these applications seek to quash the F.I.R. in Crime No.82/1996, registered at Police Station Tuljapur, for the offence punishable u/Ss. 218, 219,466,468,471 read with Section 34 of LP.C. Therefore, both these applications may be disposed of by common judgment. 2. Heard learned counsel for the applicants and learned A.P.P. for the State Perused the relevant papers. 3. To state in brief, F.LR. in the matter was lodged by R.N. Rakkawar, . Tahsildar Tuljapur on 20-5-1996 and on the basis of that F.I.R. offence came to be registered. The F.LR. reveals that it was lodged as per directions given by the Collector, Osmanabad by letter No.93/Jama/1225 (Appeal) dated 18-3-1996. The F.I.R. reveals that during the period of 1992-93 B.Y. Kulkarni, who is applicant in Criminal Application No.1350/96 was Tahsildar and City Survey Officer for Tuljapur, while Mallikarjun Kashinath Menkudhale, the applicant in Cri. Application No.2224/97 was Surveyor for Tuljapur. There was some open land in front of S.T. Stand and between the State Highway and the Tahsil godown. It was a Government land. However, the present applicants conspired with Dattatraya Rangnath Kondo and Devanand Sahebrao Rochkari and the said land was wrongly recorded in the name of Dattatraya Kondo by Surveyor Menkudhale and City Survey Officer B.Y. Kulkarni. As per advice given by Menkudhale, said Dattatraya Kondo sold that Government land, City Survey No.833 to Devanand Rochkari and thereafter, without giving any notice either to Public Works Department or to Revenue Department of the Government, the mutation of City Survey No.883 was approved in favour of Devanand Rochkari on the basis of sale deed executed by Dattatraya Kondo in his favour. This could be done only on the basis of false documents prepared by Menkudhale, Surveyor and Dattatraya Kondo and the mutation entry could be taken because B.Y. Kulkarni, did not issue notice to the concerned Departments of the Government and thus, it is alleged that both these officers misused their position and powers and dishonestly disposed of the Government land while discharging their official duties. On the basis of this F.I.R., offence was registered against four persons namely Dattatraya Kondo, Devanand Rochkari Mallikarjun Menkudhale and B.Y. Kulkarni. Accused Nos.3 and 4 have preferred the present applications. On the basis of this F.I.R., offence was registered against four persons namely Dattatraya Kondo, Devanand Rochkari Mallikarjun Menkudhale and B.Y. Kulkarni. Accused Nos.3 and 4 have preferred the present applications. According to them, no offence is made out against them and further without sanction from the Government u/S.197, Cr.P.C. they cannot be prosecuted for anything done by them while acting or purporting to act in discharge of their official duties. They contended that no such sanction has been accorded by the Government and therefore, offence cannot be registered. It appears that after investigation, police filed charge-sheet on 25-7-1996. On the same day the accused persons were present before the J.M.F.C. and they were released on bail. 4. Even though Mr. Sontakke Patil, learned counsel for the applicant Menkudhale, vehemently contended that no offence is made out, I am unable to accept this contention. The contents of F.I.R. clearly make out a case u/s.218, I.P.C. which provides for punishment, if the public servant, charged with preparation of any record or other writing frames that record or writing in a manner which he knows to be incorrect, with intent to cause or knowing it to be likely that he will thereby cause loss or injury to public. In the present case admittedly, both the applicants were the public servants responsible for the survey and maintenance of the City Survey record of the Government and private lands of Tuljapur Taluka and it is alleged that Government land was wrongly recorded in the name of Dattatraya Kondo with intent to cause loss or injury to the public and to give benefit to him and thereafter, with similar intention they wrongly and without following the due procedure proposed and approved mutation of the land City Survey No.883 in favour of accused No.2 Devanand Rochkari. The intention was clearly to deprove the State Government of its property and to transfer it unlawfully in favour of accused Nos. l and 2. It is alleged that for this purpose they had forged certain documents and prepared false record and thus offence u/Ss.466, 471, LP.C. were committed. In an application u/s.482, Cr.P.C. it will not be appropriate to minutely scrutinise the facts and the evidence which may be placed before the trial Court, to find out whether offence is really committed or not. It is alleged that for this purpose they had forged certain documents and prepared false record and thus offence u/Ss.466, 471, LP.C. were committed. In an application u/s.482, Cr.P.C. it will not be appropriate to minutely scrutinise the facts and the evidence which may be placed before the trial Court, to find out whether offence is really committed or not. At this stage this Court has to simply find out whether the F.I.R. discloses any cognizable offence or not. In view of the facts disclosed in the F.I.R. it is clear that cognizable offences are made out and the Police can make investigation. Therefore, it is difficult to find any fault with the registration of the offences. 5. Section 197(1)(b), Cr.P.C. reads as follows: “197(1)(b). Prosecution of Judges and Public servants. (1) When any person, who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction - (a) .............. (b) In the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State Government: From this, it is clear that no Court shall take cognizance of an offence allegedly committed by public servant while acting or purporting to act in discharge of his official duty, except with the previous sanction of Government, it such public servant is not removable from his office save with or without sanction of the Government. So this protection is available only to such public servants who cannot be removed from service except by or with the sanction of the Government. If a public servant can be removed from service be any lesser authority of officer than the Government, the protection u/s.197 will not be available. It is now well settled that Section does not apply if some lower authority is by law or rule or order empowered to remove the public servant. If a public servant can be removed from service be any lesser authority of officer than the Government, the protection u/s.197 will not be available. It is now well settled that Section does not apply if some lower authority is by law or rule or order empowered to remove the public servant. It clearly intends to draw a line between two categories of public servants and provides that only in the case of the higher ranks the sanction of the State Government for their prosecution should be necessary. “ 6. Admittedly, applicant B.Y. Kulkarni, was posted as Tahsildar and City Survey officer at Tuljapur, when he allegedly committed the offence. Section 7(1) of the Maharashtra Land Revenue Code provides that the State Government shall appoint a Collector for each District who shall be in charge of the revenue administration thereof and a Tahsildar for each taluka who shall be the chief officer entrusted with the local revenue administration of a taluka. The officer of the lower ranks particularly Circle Inspectors may be appointed by the Collector u/s. 7(4). It is conceded on behalf of the State that Tahsildar who was previously Class II officer has been upgraded as Class-I officer with effect from 29-3-1995 as per G.R. No.1193/4065/102/E-l, dated 4-6-1999 issued by the Revenue and Forest Department of the State Government. The Tahsildar is to be appointed by the Government on recommendation from Public Service Commission as per Maharashtra Tahsildar (Recruitment) Rules, 1989. Notification No. PWR -1068/80227 - D(12-2-1969) provides that the Commissioner can make appointments including transfer of Revenue Officers below in rank of Tahsildar and to transfer Tahsildar. Similarly the Collector is empowered to make appointment including transfers of Revenue Officers of and below the rank of Awal Karkoon. From this it is clear that Commissioner can transfer and post the Tahsildar within the Division but he cannot make appointment of Tahsildar. Appointment has to be made by the Government. It is well settled position that a Government employee cannot be removed from service by any authority less than the appointing authority. Therefore, it is clear that if Tahsildar can be appointed by the Government, he can also be removed only by the Government. As such protection u/S.197, Cr.P.C. is available to him and no Court shall take cognizance of the offence committed by him while discharging his official duties as Public servants. 7. Therefore, it is clear that if Tahsildar can be appointed by the Government, he can also be removed only by the Government. As such protection u/S.197, Cr.P.C. is available to him and no Court shall take cognizance of the offence committed by him while discharging his official duties as Public servants. 7. As far as applicant Menkudhale is concerned, he was posted only as Surveyor. The Government in Revenue and Forest Department has issued a G.R. dated 19-6-1970 u/s.9-A of Maharashtra Land Revenue Code and as per that G.R. a surveyor may be appointed, transfer and posted by Deputy Director of Land Records, who is certainly lower authority than the Government. The Deputy Director of Land Records is one of the Survey Officers described in Section 8 of Maharashtra Land Revenue Code. From this it is clear that Menkudhale is not a public servant who cannot be removed from service except by order or sanction of the State Government and therefore, sanction u/S.197 is not necessary in his case. As such the Court could take cognizance of the offence against him without such sanction. 8. It may be made clear that Section 197 puts a bar on taking cognizance of the offence by the Court without necessary sanction. It does not provide that the sanction is also required for the purpose of registration of offence. Offence may be registered by Police on the basis of F.I.R. if it discloses a cognizable offence. However, after investigation when the charge-sheet is to be filed before the Court, the Court cannot take cognizance of such offence unless there is sanctions from the State Government as required u/s.197, Cr.P.C. in respect of the officers who cannot be removed from service save by order or sanction of the Government. Therefore, no fault can be found with the registration of the offence against both the applicants but in view of the provisions of Section 197, Cr.P.C. The Court cannot take cognizance of the same as far as B.Y. Kulkarni is concerned. 9. In view of the above circumstances, Criminal Application No.13501 96 is allowed and taking of cognizance by learned J.M.F.C. as per order dated 25-7-1996 against him stands quashed. Rule made absolute accordingly. 10. Criminal Application No.2224/1997 filed by Mallikarjun s/o. Kashinath Menkudhale stands dismissed. Rule discharged accordingly. Order accordingly.