Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1731 (BOM)

Mariano Marques v. State of Goa

2014-08-04

A.R.JOSHI

body2014
JUDGMENT : A.R. Joshi, J. 1. Heard. Rule. Rule returnable forthwith by consent of the parties. Learned Counsel for respondents waive service. 2. The present writ petition is taken up for final adjudication at the admissions stage itself. 3. The facts of the case are very peculiar in nature. Present writ petitioner has challenged two orders. First one dated 24/04/2012 passed by Deputy Collector and Sub-Divisional Officer, Ponda, Sub-division, Ponda-Goa in case no. PON/SDM/MISC/1/2010 and second order dated 21/04/2014 passed by Additional Sessions Judge, Fast Track Court, North Goa, Panaji in Criminal Revision Application No. 96/2012. 4. By the first order dated 24/04/2012, Deputy Collector, Ponda had initiated the action against present petitioner for giving directions for lodging the complaint against the petitioner for the offence punishable under S. 181 of Indian Penal Code. Said directions were given on the basis of complaint given by present respondent no. 2 dated 25/08/2010 requesting the Deputy Collector to file complaint against the present petitioner under S. 181 of Indian Penal Code for filing false affidavit before Deputy Collector in a matter of conversion proceedings. Without much going into the details, suffice it to say that the said conversion proceedings against some another person by name Shyam Naik were initiated by Mamlatdar, Ponda again on the complaint given by the present respondent no. 2. The said complaint of respondent no. 2 was that said Shyam Naik was doing some construction without the permission of the competent authorities and requested the Mamlatdar to take appropriate action. On said complaint, a proceeding under case no. 7/88/2002-III-Conv. was initiated. Admittedly, the said proceeding was initiated by Mamlatdar, Ponda on behalf of State against Shyam Naik and one Venkatesh Naik. Venkatesh Naik was apparently owner of the property and Shyam Naik was the person who was doing some construction on survey no. 919/14 of village Shiroda. In the said proceeding, notices were issued to the respective parties. 5. Admittedly the present petitioner and also respondent no. 2 were not parties to the said proceeding. In fact, though not being a party, present respondent no. 2 was the person behind initiation of the said proceeding and present petitioner was one of the persons who filed an affidavit. The present petitioner filed his affidavit dated 3/06/2003 making some statements. At this stage, it must be mentioned that it is the submission on behalf of respondent no. In fact, though not being a party, present respondent no. 2 was the person behind initiation of the said proceeding and present petitioner was one of the persons who filed an affidavit. The present petitioner filed his affidavit dated 3/06/2003 making some statements. At this stage, it must be mentioned that it is the submission on behalf of respondent no. 2 that the said statements were per se false and, as such, present petitioner was liable for action under S. 181 of Indian Penal Code for giving or making false statement before a public officer. As such, in fact, the contents of the said affidavit are of much significance and which are reproduced here under and it is to be seen whether the Deputy Collector while passing the impugned order dated 24/04/2012 came to the specific conclusion that the contents of the said affidavit are per se false and thus rendering the petitioner liable for action under S. 181 of the Indian Penal Code. Paras no. 1 to 6 of the said affidavit which was filed in case no. 7/88/2002 read thus: 1. I say that I know that there is a case against Respondent No. 1 for alleged illegally construction in this Hon'ble Court. 2. I say that there is a cowshed-cum store room since time of ancestor of the Respondent in the property surveyed under No. 919/14 of village of Siroda Goa. 3. I say that also know that said cowshed cum-store room used previously by ancestor of the Respondent and by Respondent to tieing cattles, cows, etc. and also for storing agricultural produce and implements used for agricultural activities. 4. I say that the condition of the said cowshed-cum-store room was posing endanger to property and lives of users and by passers. 5. I say that if had the Respondent not gone for urgent repair of the said cowshed-cum-store room there would be collapse of the said shed causing unrepairable loss to the Respondent. 6. I say that whatever I have stated herein above is true to the best of my knowledge. 6. It is a factual position that on filing of the said affidavit and after considering the contents of the other affidavits produced on behalf of the said Shyam Naik the said conversion proceedings were closed by order dated 31/07/2003. Though present respondent no. 6. It is a factual position that on filing of the said affidavit and after considering the contents of the other affidavits produced on behalf of the said Shyam Naik the said conversion proceedings were closed by order dated 31/07/2003. Though present respondent no. 2 was not a party to the said proceeding he challenged the order of closure of conversion proceeding dated 31/07/2003 by filing an appeal before Administrative Tribunal, Panaji-Goa being Land Revenue Appeal no. 238/2003. It was dismissed challenging the locus of respondent no. 2, so also, it was dismissed on the merits and said dismissal order is dated 24/09/2009. Thereafter, a private complaint was lodged by present respondent no. 2 being complaint no. 18/P/2006/C on 27/02/2006 for taking action against the present petitioner, the person who filed an affidavit in the conversion proceeding initiated against Shyam Naik. In the said complaint it is prayed by respondent no. 2 that action under S. 181 of Indian Penal Code is to be initiated against petitioner. By taking recourse to provisions of Section 195 Criminal Procedure Code learned JMFC dismissed the said complaint and discharged the present petitioner vide order dated 28/07/2010 and it was rightly so done in view of the mandate of law specifically directing as to on whose complaint a cognizance is required to be taken by JMFC when offences under Section 193 to 228 of Indian Penal Code are alleged. Needless to mention that the officer/public servant before whom such false statement or false information is given is the authority competent to lodge complaint. In view of the dismissal of the said complaint of respondent no. 2 the present petitioner was discharged. 7. After the above, the respondent no. 2 did not stop, but he again reagitated the matter and filed an application before Deputy Collector and this is the application dated 25/08/2010 as mentioned earlier. Said application was allowed by order dated 24/04/2012, which is the first impugned order. 8. Now the question is whether under the writ jurisdiction both the orders, the first in point of time dated 24/04/2012 passed by the Deputy Collector and the second one passed by the Sessions Judge dated 21/04/2014 are required to be interfered under the provisions of Section 482 of Criminal Procedure Code. 8. Now the question is whether under the writ jurisdiction both the orders, the first in point of time dated 24/04/2012 passed by the Deputy Collector and the second one passed by the Sessions Judge dated 21/04/2014 are required to be interfered under the provisions of Section 482 of Criminal Procedure Code. What is urged before this Court on behalf of the petitioner is that there is no basis for initiating the prosecution by the Deputy Collector against the petitioner for the offence under S. 181 of Indian Penal Code inasmuch as even prima facie there is no finding in the impugned order dated 24/04/2012 that the contents of the affidavit dated 3/06/2003 were per se false. On this count, counter to these arguments much is argued by learned Counsel for respondent no. 2 by placing reliance on various documents which were annexed to his complaint dated 25/08/2010 before Deputy Collector. It is argued that in the year 2002 itself, there were notices issued against the construction carried out by said Shyam Naik and there are various other letters and notices issued subsequently. Even directions were given by Panchayat, Panaji-Goa for demolition of the construction of the house constructed by said Shyam Naik. By pointing out this it is submitted that the construction done by Shyam Naik was not authorised and without sanction and therefore what was mentioned by present petitioner in his affidavit dated 3/06/2003 was false. However, in the considered opinion of this Court whether or not the said construction was legal or illegal is not a question to be determined here, but what is to be seen is whether there is prima facie finding that the contents of the affidavit dated 3/06/2003 sworn by the present petitioner were false and whether such false statement was knowingly made by the petitioner before the Deputy Collector and Sub-Divisional Officer in the proceedings of the year 2002. On going through the entire order dated 24/04/2012 except reproducing the arguments of rival parties, Sub-Divisional Officer i.e. Deputy Collector has not mentioned anything regarding the conclusion that the contents of the affidavit dated 3/06/2003 were false and which the petitioner was knowing or believing to be false. In fact, such prima facie satisfaction is necessary in order to initiate a complaint for offence under S.181 of Indian Penal Code. In fact, such prima facie satisfaction is necessary in order to initiate a complaint for offence under S.181 of Indian Penal Code. On this aspect, though it is tried to argue on behalf of the petitioner that the said affidavit was filed before then Sub-Divisional Officer in the year 2003, the apparent action is initiated by another Sub-Divisional Officer in the year 2012 and not by the same Court, there is no much force in the said arguments and if otherwise requirements of law are complied as to initiate the action under S. 181 of Indian Penal Code then successor in the office can initiate such proceedings. Not on this count, but on the count as to whether prima facie an offence under S. 181 has been spelt out or not, this writ petition is required to be determined. 9. Again it must be mentioned that at the costs of repetition, question is not as to the establishment of legality or illegality of the structure of the Shyam Naik, but the question is whether the present petitioner, then one of the persons who filed the affidavit in support of Shyam Naik, had made any false statement or made a statement knowing that it is false and whether this fact has been established, prima facie to initiate proceeding against him that also belatedly after 9 years of making such statement. 10. Another circumstance is also to be viewed by this Court inasmuch as the said affidavit dated 3/06/2003 was filed in the conversion proceedings initiated in the year 2002 and the said conversion proceedings were dropped and closed by order dated 31/07/2003 and in fact another attempt now at the behest of respondent no. 2 to initiate repeated same proceedings on same clause, has failed and order to that effect has been filed by Deputy Collector and SDO, Ponda Goa on 31/01/2013. For ready reference the said order is reproduced here under: "Counsel of the Respondent present and he submits that proceeding of similar nature has been initiated in the past and the present show cause is in relation to the same subject matter. He has placed on record the orders passed in anterior proceedings as well as that passed by the Hon'ble Administrative Tribunal. He has placed on record the orders passed in anterior proceedings as well as that passed by the Hon'ble Administrative Tribunal. Since the proceedings are hit by the principle of res judicata the same are dropped." For these reasons also, it must be said that the Deputy Collector had fallen in an error in passing order allowing the complaint lodged by the present respondent no. 2, apparently the stranger to the entire proceeding. It also must be said that the revisional Court had also fallen in an error on 21/04/2014. As such, under the inherent powers of this Court under Section 482 of Criminal Procedure Code, both the said orders need interference, thus allowing the above writ petition. Hence, order: ORDER (i) Writ petition is allowed. (ii) Rule is made absolute in terms of prayer clauses (a) & (b).