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2015 DIGILAW 217 (BOM)

Gajanan Modku Meshram v. State of Maharashtra

2015-01-22

S.B.SHUKRE

body2015
Judgment 1. Heard. 2. Admit. 3. Heard finally by consent. 4. By this application, the applicant is seeking quashing of the order passed on 16.3.2011 by Chief Judicial Magistrate, Gadchiroli refusing to discharge the applicant from three criminal cases being Regular Criminal Case No.1/2000, Regular Criminal Case No. 2/2000 and Regular Criminal Case No.16/2000, arising out of Crime Nos.7/1999, 11/1999 and 51/1999 registered for the offences punishable under Sections 420, 467, 468, 471, 120B, 477 and also 409 of the Indian Penal Code and also the order passed by the Sessions Judge Gadchiroli in Criminal Revision Application No.23/2011 on 17.2.2014 thereby confirming the order of the Chief Judicial Magistrate dated 16.3.2011. 5. It is the contention of the learned counsel for the applicant that there has been absolutely no application of mind to the facts present on record on the part of learned Chief Judicial Magistrate and the result is a perverse order regarding framing of charge against the applicant. He submits that when the name of the applicant is not mentioned anywhere in the F.I.R. and it has also not been alleged by anybody that the applicant had demanded or accepted any amount or any favour for discharging his official functions, the offences as alleged against him could not have been registered against the applicant. He submits that even otherwise, the alleged offences have been stated to be committed by the applicant while acting as or purporting to act as a public servant and, therefore, a bar under Section 197 of the Cr.P.C. is applicable because of which cognizance of the alleged offences cannot be taken by a Criminal Court. In support, he places his reliance upon the cases of Smt. Nagawwa vs. veeranna Shivalingappa Konjalgi and others, reported in AIR 1976 SC 1947 (1), Ramakanta Sahoo vs. Suresh Prasad Panda, reported in 2012 DGLC (Cri.) Soft 807 Equivalent Citations : 2012(4) Crimes 417, Abdul Wahab Ansari vs. State of Bihar and another, reported in AIR 2000 SC 3187 . 6. Learned Additional Public Prosecutor for the respondent/State submits that since the stage of raising of plea of discharge is already over now, it would not be permissible at law for the applicant to raise same plea after admittedly the charge has been framed and the cases are fixed for recording of evidence. 6. Learned Additional Public Prosecutor for the respondent/State submits that since the stage of raising of plea of discharge is already over now, it would not be permissible at law for the applicant to raise same plea after admittedly the charge has been framed and the cases are fixed for recording of evidence. He also submits that in a given case, the facts could be such as would require recording of detailed evidence so as to appropriately consider defence of the accused that without obtaining sanction under Section 197 of Cr.P.C., he could not have been prosecuted. In support, learned A.P.P. has placed his reliance upon the case of Three Judges Bench Judgment of the Hon'ble Apex court in the case of P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation, reported in (2001) 6 SCC 704 . 7. The impugned orders show that only ground on which discharge application filed subsequent to framing of the charge has been rejected by the Court below is that discharge could not be sought after charge is framed against the accused. The ground so stated in the impugned order is consistent with the settled position of law. Once a charge is framed, the accused cannot seek his charge from the case and after framing of the charge, the accused can only plead for his acquittal on merit of the case. 8. In the case of Abdul Wahab Ansari (supra) relied upon by the learned counsel for the applicant it has been laid down that the plea as to want of sanction can be raised prior to stage of framing of charge. There can be no second opinion about this principle of law. However, as held by the Hon'ble Apex Court in the case of P.K. Pradhan (supra), there could be some cases, wherein the plea of want of sanction taken by the accused cannot be decided appropriately by considering the prima facie worth of evidence and the material available at the time of framing of charge. However, as held by the Hon'ble Apex Court in the case of P.K. Pradhan (supra), there could be some cases, wherein the plea of want of sanction taken by the accused cannot be decided appropriately by considering the prima facie worth of evidence and the material available at the time of framing of charge. Such evidence, taken at its face value may not unequivocally point out as to whether or not there is any reasonable connection between the offences alleged to be committed by the accused and the performance of his duties and, therefore, there would be a need for giving of opportunity to the prosecution as well as to the accused to prove in evidence that either there was no reasonable connection between the alleged offences and performance of duty or there was some interrelationship between the two, as the case may be. 9. Upon consideration of the material available on record, as seen from the impugned orders and also from the documents placed on record of this Case, I am of the view that at this stage, it is quite difficult to ascertain as to in what capacity, whether official or individual, the alleged offences have been committed by the applicant. From the allegations made and material filed on record in support of allegations it is difficult to even make any prima facie inference about existence of inter-relationship between offences alleged and official duty of the applicant. Proper conclusion in this regard, therefore, can be made only after detailed evidence is available before the trial Court. Fore these reasons, I am of the view that no assistance from the case of Abdul Wahab Ansari can be seen to be made available to the case of the applicant. 10. In the case of Smt. Nagawwa (supra) it has been held that the process issued by the Magistrate can be quashed and set aside if the allegations made in the complaint or the statement of witnesses recorded in support of same taken at their face value do not disclose essential ingredients of an offence or where the allegations in the complaint are patently absurd or inherently improbable or where the discretion exercised by the Magistrate is capricious or arbitrary or where the complaint suffers from fundamental legal defects such as want of sanction and the like. 11. 11. So far as the aspect of existence of prima facie evidence to constitute the offences alleged against the present applicant is concerned, it can be seen from what has been alleged in the F.I.R. and gathered during the subsequent investigation by the Police that there is something which can be said against the accused so as to proceed further in the case against him. Therefore, at this stage, it may not be appropriate to make any interference with the trial of the cases against the applicant. As regards want of sanction, I have already found, relying upon the case of P.K. Pradhan (supra), that this is the case, which would require detailed consideration of the evidence so as to find out existence or lack of interrelationship between the offences alleged and official duty performed by the applicant and, therefore, the plea regarding absence of sanction and vitiating of the whole trial against the applicant can only be taken by him at the time of conclusion of the trial and not at this stage. 12. In the case of Ramakanta Sahoo (supra) learned Single Judge of the Orissa High Court same law as has been settled by the Hon'ble Apex Court in the cases of P.K. Pradhan (supra) and Abdul Wahab Ansari has been stated and, therefore, there is no need for me to deal with the judgment separately. At this stage, learned counsel for the applicant has also cited before me the case of State of Uttarakhand vs. Yogendra Nath Arora, reported in AIR 2013 SC 1489 , in support of his argument as to why it is necessary that the impugned orders are quashed and set aside and criminal proceedings are also quashed and set aside. However, said case of Yogendra Arora is on the aspect of giving of sanction by the authority which is competent to remove the accused from the employment, which issue is not at all involved in the present matter. Therefore, this case would be of no help to the applicant. 13. However, said case of Yogendra Arora is on the aspect of giving of sanction by the authority which is competent to remove the accused from the employment, which issue is not at all involved in the present matter. Therefore, this case would be of no help to the applicant. 13. Thus, I find, at this stage that the allegations against the applicant taken at their face value, that while he was working as District Fisheries Development Officer since the year 1996 to 1997 and also as Chief Executive Officer from 17.7.1997 to 12.6.1998 of Fish Farming Development Agency, Gadchiroli, the applicant falsely showed certain works relating to digging of fish tanks and creating false bills, misappropriated government amount which was received by the agency as subsidy or which was to be made available to the agency as subsidy, do prima facie make out the offences alleged against him. These allegations, at this stage, do not ex facie show that there is an essential connection or interrelationship between the offences committed and official duty as creation of record which to the knowledge of the applicant is false cannot be prima facie taken as part of official duty and if any connection is to be established between the said two factors, detailed evidence would be necessary. As such, the defence of want of sanction can be taken by the applicant-accused in these peculiar facts and circumstances, only at the time of conclusion of the trial as held in the case of P.K. Pradhan (supra). Even otherwise, it is well settled law that after the charge is framed, the accused cannot be discharged from the case and on this ground also, the criminal application is liable to be dismissed. 14. In the result, the application is dismissed. 15. The trial Court is directed to proceed with the criminal cases filed against the applicant and others in accordance with law and dispose of the same as expeditiously as possible. 16. Steno copy of the order be supplied to the learned counsel appearing for the parties.