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2008 DIGILAW 1465 (BOM)

Anilkumar Jinabhai Patel v. State of Maharashtra

2008-10-07

A.H.JOSHI

body2008
Judgment : 1. Rule. Rule is made returnable forthwith and heard finally by consent of parties. 2. In thecomplaint filed before the Judicial Magistrate First Class, Maregon, which is at Annexure-F, crux of the matter which purports to describe commission of offence is contained in paras 19 to 22, which are quoted below for ready reference:- “19. It is pertinent to note that the sale deeds have been signed as witness by accused no.3 Vikram Anilkumar Patel with the full knowledge and thereby has also showed sharing of common intention. Similarly, he has also stoutly mooted and floated the resolution in that behalf. Accused no.2 Darshan Anilkumar Patel was also aware of the same and connived it by actively supporting accused no.1 in this behalf. 20. That although the order of Additional Commissioner remained in effect, still the accused persons got the sale-deeds registered and also got the mutation entry caused and register on that basis. In fact, the complainant vide letter dated 22-12-2005 addressed to accused no.5 Tahsildar, reminded of the existence of the said order of Additional Commissioner. Despite that order, which was sent along with letter, the mutation entry in the names of subsequent purchasers was got recorded by mutation entry no. 302, 308 and 309. However, the dishonesty of the accused revenue officers is clearly exhibited in the fact that the mutation entry relating to the order sought by the complainant in the revision petition from the Additional Commissioner was recorded deliberately delayed than the subsequent entries of the purchase deeds which entries of purchase could not have been effected. However, the entries of the transaction which was first in time and was known initially and prior to the purchase deeds was deliberately not recorded in order to show from the record as if the order of the Additional Commissioner was not known in ignorance of the same mutation entries 302, 308 and 309 were recorded. This itself shows the dishonest intention on the part of the revenue officers and further goes to show that they were aware of the misdeeds that they were performing and despite that in disregard of their public duties they have recorded the said entries. 21. Thus, the purchaser accused no. 8 to 11 were also aware of the order of Additional Commissioner. 21. Thus, the purchaser accused no. 8 to 11 were also aware of the order of Additional Commissioner. They also joined hands with accused no.1, accused no.4 to 7 revenue officers, and got recorded mutation entries no. 302, 308 and 309 prior to mutation entry no. 311. 22. The accused persons, therefore, have committed the offences punishable under sections 418, 419, 420, 465, 467, 468, 471, 406 read with Section 34 of the Indian Penal Code by sharing common intention with each other and, therefore, are liable to be tried and may be punished according to law.” 3. By the impugned order, learned Magistrate has passed order under Section 156 (3) of Criminal Procedure Code. 4. Perused the copies of record accompanying the complaint, citations and rival submissions. 5. The order is challenged on various grounds. The grounds, which are pursued and urged as pertinent, can better be referred by quotation as follows:- “A) ........” “B) ........” “C) ........” [Quoted from page nos. 50 and 51 of the Criminal Application Paper-book]. “D) ........” “E) The learned Magistrate should have seen that entire complaint was based on the allegations that complainant did not resign from the post of Managing Director and according to him, the resignation was a forged document for which he had already filed F.I.R., with PSO of PS Jalgaon and therefore, all further acts, complaint depend upon the basic fact of resignation. Therefore, the complaint could not have been entertained by the learned Magistrate. F) The learned Magistrate should have seen that respondent no.2 - the complainant, could not be an aggrieved person and he has no right to file the complaint, as the property belonged to Company and it was dealt with by the Company.” “G) ......” “H) ......” “I) The learned Magistrate should have further seen that complaint against Sub-Divisional Officer, Tahsidlar, Circle Inspector and Talathi was not maintainable in absence of any sanction, as required by the provisions of Cr. P. Code.” “J) The complaint did not disclose any offence which could be directed to be investigated by the police and the learned Magistrate has acted without jurisdiction.” [Quoted from page nos. 9 and 10 of the Criminal Application Paper-book]. 6. Grounds 'E' and 'F' pertain to complainant's claim that he has not actually resigned, his alleged resignation is forged, which is a matter sub-judice in Civil and Criminal Courts. 9 and 10 of the Criminal Application Paper-book]. 6. Grounds 'E' and 'F' pertain to complainant's claim that he has not actually resigned, his alleged resignation is forged, which is a matter sub-judice in Civil and Criminal Courts. Petitioners' plea that complainant has ceased to hold any right in the subject Company has yet to receive a seal of judicial adjudication and, therefore, this ground cannot be acceptable at this stage. 7. Ground 'I' is yet out of consideration, since the question of sanction under Section 197, Criminal Procedure Code as to accused nos. 3 to 6 comes into play at the stage of issue of process and not at the stage of registration of FIR or order under Section 156 (3). Moreover, this ground is a shield available to accused nos. 3 to 6 and not a weapon of assault by other accused, as these Public Servants have to defend themselves on their own strength, and not by petitioners' proxy. 8. It seems that the facts and surrounding circumstance did not satisfy the Magistrate for issue of process, nor the complaint could be dismissed as worthless. Therefore, the Magistrate has taken recourse to Section 156 (3). Thus, the ground 'J' has no merit. 9. All other grounds need not be dealt with as those are not significant, hence are neither reproduced or dealt with, though Court has applied mind to those as well. 10. This Court has perused the complaint. The averments quoted in para no.2 herein before do prima facie adequately disclose commission of offence. 11. Entering rights of a purchaser based on an indenture executed by vendor, whose name is not recorded, as the said mutation entry is kept in abeyance, a subject to decision of a suit, is prima facie a wrong act of revenue authorities. Whether on facts, said alleged wrong culminates into an offence will reveal after recording of FIR by police and completion of investigation. 12. Inview of what is glaringly apparent from facts, this Court, though has perused and considered precedents relied upon by the petitioner, it would not be necessary to deal with all those here. It shall suffice to refer to judgment of Hon'ble Supreme Court reported in case of State of Karnataka Vs. Pastror P. Raju [ (2006) 6 SCC 728 ]. Relevant conclusions are in para 13 which reads as follows:- “13. It shall suffice to refer to judgment of Hon'ble Supreme Court reported in case of State of Karnataka Vs. Pastror P. Raju [ (2006) 6 SCC 728 ]. Relevant conclusions are in para 13 which reads as follows:- “13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.” 13. Thus, to conclude to accept the challenge to an order under Section 156 (3) is to injunction or to restrain the primary State function of registering the offence. On facts, it would be unsafe to permit to adopt the course espoused by the petitioners. 14. It is not necessary that in case of every FIR or cognizance upon order under Section 156 (3), charge-sheet alone could be the result. The result could be that no offence has occurred. In these premises, throttling the very entry in Criminal Law Administration cannot be permitted in present situation and facts of the case. 15. What is seen, and noted in foregoing paras, suffices to conclude that the petition does not merit any indulgence. Rule is, therefore, discharged.