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2018 DIGILAW 247 (BOM)

Narayan Kalba Gaikwad v. State Of Maharashtra

2018-01-24

PRASANNA B.VARALE, VIBHA KANKANWADI

body2018
JUDGMENT : Vibha Kankanwadi, J. The applicants by invoking the inherent powers of this Court under Section 482 of Code of Criminal Procedure have prayed for quashing of First Information Report (hereinafter referred to as "FIR") lodged against them at the instance of respondent No. 2. 2. The factual matrix leading to the application are that, the respondent No. 2- original applicant filed Misc. Criminal Application No. 34 of 2017 before learned Judicial Magistrate, First Class, Kandhar District Nanded contending that the present applicants have committed offence punishable under Section 420, 467, 468, 471 read with 34 of the Indian Penal Code, and it should be sent for investigation under provisions of Section 156 (3) of Cr. P. C. . Consequent to the order passed by the learned Magistrate, FIR was registered vide Crime No. 120 of 2017 on 19-05-2017 with Kandhar Police Station Dist. Nanded for the said offences. 3. It is contended by the present applicants further that, they are working as trustees of the trust called "Janakalyan Vikas Mandal, Pethwadaj Tq. Kandhar Dist. Nanded." By amending object of the trust it was resolved that the trust will work for upliftment of the minority elements of the society. The amendment was submitted to the Assistant Charity Commissioner for its approval. The learned Assistant Charity Commissioner by his order dated 03-09-2010 approved the change in the bylaws of the trust. In the light of Government Resolution - 2007, when a trust belonging to the Scheduled Caste comprises 1/3rd of such community then the trust can enjoy the status of minority trust. Accordingly the Additional Chief Secretary, Department of Minority Development, State of Maharashtra issued such certificate and granted the status of minority trust to the said trust on 13-06-2011. A general body meeting of the trustees was held on 11-06-2016. A change report in respect of the agenda that was discussed, was submitted to Deputy Charity Commissioner, Nanded Region on 15-06-2016. Notices were issued to all the concerned stakeholders including respondent No. 2 regarding the submission of said proposal regarding the change of report. Respondent No. 2, though duly served with the notice, did not cause his appearance. Consequently the inquiry proceeded without his say and order to that effect has been passed by learned Deputy Charity Commissioner, Nanded on 16-01-2017. 4. Respondent No. 2, though duly served with the notice, did not cause his appearance. Consequently the inquiry proceeded without his say and order to that effect has been passed by learned Deputy Charity Commissioner, Nanded on 16-01-2017. 4. The present respondent No. 2 and other two members of the executive committee had presented a complaint bearing complaint No. 529 of 2016, before learned Deputy Charity Commissioner against the present applicants on 09-06-2016 seeking permission to present proceedings under Section 51 of the Bombay Public Trust Act contending that the present applicants have prepared bogus document and obtained bogus signatures. It was their prayer that, criminal complaint be initiated or they be allowed to initiate criminal proceedings against applicants. The said application was rejected by learned Deputy Charity Commissioner by his order dated 09-06-2016. 5. Having failed in the said complaint No. 529 of 2016 and after realizing that his name has been deleted from the executive trustee, the complainant filed the said private complaint before learned Judicial Magistrate First Class, taking recourse under Section 156 (3) of Cr. P. C. It has been contended that, the basis for such recourse is totally unfounded and imaginary, it is a frivolous prosecution. The learned Magistrate while handing over the investigation, had not adhered to the ratio laid down in case of Priyanka Shrivastava and Another Vs. State of Uttar Pradesh and Others, (2015) 6 SCC 287 . Therefore, it is submitted that the said order is bad in law and therefore the FIR which has been consequently registered deserves to be quashed and set aside. 6. Heard Mr. S. S. Deshmukh, learned counsel appearing for applicants, learned Addl. Public Prosecutor Ms. P. V. Diggikar for State-respondent No. 1 and Mr. S. S. Choudhari, learned counsel appearing for respondent No. 2. 7. The learned counsel appearing for the applicants has submitted that, the change of object of the trust has been done in a legal way and it has been approved by the competent authority. Thereafter, the certificate of minority has been issued by the Government as per the Government Resolution. After the certificate was issued due notice was issued in respect of the meeting and the business was transacted. In view of the said agenda, change report was submitted before the learned Deputy Charity Commissioner, Nanded. Thereafter, the certificate of minority has been issued by the Government as per the Government Resolution. After the certificate was issued due notice was issued in respect of the meeting and the business was transacted. In view of the said agenda, change report was submitted before the learned Deputy Charity Commissioner, Nanded. Notice of the said change report was issued to the respondent No. 2 but he remained absent and did not take any objection. As a result of which, matter proceeded without the say of the respondent No. 2. By way of separate complaint No. 529 of 2016, the present respondent No. 2 and other two executive members specifically challenged the notice to call meeting by contending that bogus record has been created and it was prayed that criminal action be initiated against the present applicants. However, those proceedings have been rejected by Deputy Charity Commissioner. There is a inbuilt mechanism in the Bombay Public Trust Act and the Charity Commissioner and the other authorities have been empowered to take cognizance regarding any criminal action by the parties before it. When that authority had refused to take cognizance, the only option available for the respondent No. 2 was to challenge the said order before higher authorities under the said Act. The learned Magistrate before whom the respondent No. 2 had field Misc. Cri. Application No. 34 of 2017 ought not to have taken cognizance of the same and sent it for investigation under Section 156 (3) of Cr. P. C. Further the learned Magistrate failed to consider that the parameters laid in Priyanka Shrivastava Vs. State of Uttar Pradesh, have not been adhered to by the learned Magistrate. Therefore, the FIR which is based on the order passed in Misc. Cri. Application No. 34 of 2017 is erroneous and therefore deserves to be set aside. 8. The learned counsel appearing for the applicant has relied on the observations of this Court in Criminal Writ Petition No. 507 of 2013 (Rajeshwarrao s/o Vishwanathrao Patil and others Vs. The State of Maharashtra and others) decided on 22nd August, 2013, wherein it has been held that, "When the Assistant Charity Commissioner is vested with the powers of the Civil Court then a private person cannot institute any FIR. " Learned counsel also relied on the decision in Priyanka Srivasatava. 9. The State of Maharashtra and others) decided on 22nd August, 2013, wherein it has been held that, "When the Assistant Charity Commissioner is vested with the powers of the Civil Court then a private person cannot institute any FIR. " Learned counsel also relied on the decision in Priyanka Srivasatava. 9. Per contra, it has been submitted on behalf of the respondents that, the learned Magistrate had considered all the aspects canvassed in the complaint and after he was satisfied that a cognizable offence has been committed, was of the opinion that the police investigation is necessary, and therefore, directed Police Station Officer, Kandhar Police Station to investigate the matter vide Section 156 (3) of Cr. P. C. Specific allegations were made that the present applicants had prepared forged documents. The signatures of the applicants therein and other two trustees were forged, those forged documents were used for procuring minority certificate, thereby the State Government has been cheated. In order to get concession, audit memo was produced before the Government containing forged signatures. However, when notice to pay income tax was received from the concerned department, the said fact was revealed to the complainant. Further the amounts were withdrawn by forging documents and other documents have been created. Under such circumstance the order that was passed by the learned Magistrate was legal, and therefore the FIR that has been lodged is also legal. 10. As regards facts of the case are concerned, it is to be noted that amendment was made in the object of the trust and the said change report in respect of change of object was approved by the concerned authority by its order dated 03-09-2010. It appears that the said approval has not been challenged by complainant and other two trustees. Thereafter the documents show that notice in respect of meeting was issued and by order dated 16-01-2017 when it was found that the present respondent No. 2 had not filed any objection, the matter proceeded without his say in order to approve the change report. The other set of facts disclose that, a complaint application was filed by respondent No. 2 bearing complaint No. 529 of 2016 before learned Assistant Charity Commissioner, Nanded Division Nanded, wherein almost same contents as have been raised in Misc. Cri. The other set of facts disclose that, a complaint application was filed by respondent No. 2 bearing complaint No. 529 of 2016 before learned Assistant Charity Commissioner, Nanded Division Nanded, wherein almost same contents as have been raised in Misc. Cri. Application No. 34 of 2017 were raised and in the said complaint before Assistant Charity Commissioner, the prayer was made that he be permitted to file legal proceedings against the present applicants. After hearing both sides, the learned Assistant charity Commissioner, Nanded Division Nanded, rejected the said application on 09-12-2016. Respondent No. 2 has not filed any document showing that he has challenged the decision in this complaint application before the higher authorities. That means the said order in complaint No. 529 of 2016 has become final. In spite of the said fact which was within the knowledge of the respondent No. 2, he went on to file Misc. Cri. Application No. 34 of 2017 before Judicial Magistrate F. C. , Kandhar on 03-03-2017. 11. Perusal of the said private complaint (Misc. Cri. Application No. 34 of 2017) would show that, there is total suppression of fact of rejection of Exhibit 23 in complaint No. 529 of 2016 wherein application under Section 51 of Bombay Public Trust Act was rejected. The Division Bench of this Court in Rajeshwarrao's case has observed, "23. The Assistant Charity Commissioner, is an authority constituted under the Bombay Public Trust Act, and is vested with the powers, duties and functions under said Act. The Assistant Charity Commissioner is vested with powers of civil court. Therefore, if any offence is committed by the accused in the process of any investigation or enquiry, it is an independent matter to be dealt with by the competent authority under the Bombay Public Trust Act, under the provisions of Chapter XIV read with Chapter XXIV of the Code of Criminal Procedure. The respondent No. 3 has no role to play in such matter particularly by way of lodging a FIR in that regard. " No doubt only the difference in the fact is that, it was the direct letter given to Police Inspector of which the cognizance was taken by the police officer resulted in registration of the FIR in the said case, however the fact that was mentioned in the said letter was that those alleged forged documents were filed in the proceedings before Assistant Charity Commissioner. In the backdrop of this particular fact that the alleged forged documents were filed before Assistant Charity Commissioner, the above-said observation has been made. Definitely these observations are helpful and we reiterate. 12. The other point that has been canvassed is that, the learned Magistrate had not adhered to the procedure that has been laid down in Priyanka's case before passing the impugned order dated 17-05-2017. It has been observed, "27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. . . . . . " Further it has been observed, "29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same." "30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. " "31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). . . . . . . . . . " 13. As regards the above said point it is to be noted that the affidavit of the complainant was filed along with the said complaint which appears that it was perused by the learned Magistrate. However, as aforesaid the respondent No. 2 i. e. original complainant had suppressed the rejection of his application Exhibit 23 by learned Assistant Charity Commissioner on 09-12-2016. If the said fact would have been disclosed by the complainant, the result might have been different. 14. As it appears that, the learned Assistant Charity Commissioner had rejected the application Exhibit 23 in order to initiate action as per Section 51 of Bombay Public Trust Act and the said order appears to have not been challenged by the respondent No. 2, no criminal action could have been taken in respect of the documents which have been allegedly forged and submitted in proceedings before Assistant Charity Commissioner. Finality has been arrived to the said order. When the competent authority under Act ; wherein in-built mechanism has been created, had refused to take cognizance, then a separate private complaint on the same allegations is not maintainable. Therefore, the said order of directing the investigation under Section 156 (3) of Cr. P. C. passed in Misc. Finality has been arrived to the said order. When the competent authority under Act ; wherein in-built mechanism has been created, had refused to take cognizance, then a separate private complaint on the same allegations is not maintainable. Therefore, the said order of directing the investigation under Section 156 (3) of Cr. P. C. passed in Misc. Cri. Application No. 34 of 2017 by Judicial Magistrate F. C. , Kandhar dated 17-05-2017 and consequent filing of FIR bearing Crime No. 120 of 2017 is illegal and deserves to be quashed and set aside. 15. Taking into consideration the observations of this Court in Rajeshwarrao Vishwanathrao Patil's case and mainly the suppression of rejection of application Exhibit 23 by Assistant Charity Commissioner in Enquiry No. 529 of 2016 dated 09-12-2016 which has resulted in passing of the impugned order dated 17-05-2017 by Judicial Magistrate F. C. , Kandhar and lodging of FIR is illegal, we find this to be a fit case where the extraordinary jurisdiction of this Court under Section 482 of Cr. P. C. should be invoked. Applicants can not be asked to face an investigation and criminal trial based upon such illegal FIR. For the aforesaid reasons we proceed to pass following order. ORDER (1) Application is hereby allowed. (2) Order passed by Judicial Magistrate First Class, Kandhar Dist. Nanded in Misc. Criminal Application No. 34 of 2017 dated 17-05-2017 and consequent impugned FIR bearing Crime No. 120 of 2017 dated 19-05-2017 registered with Kandhar Police Station Dist. Nanded under Section 420, 467, 468, 471 read with 34 of Indian Penal Code is hereby quashed and set aside.