1 Cri. W.P. 1163/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No.1163 Of 2010 1) Yeshwant s/o Sahebrao Khedkar, Age 52 years, Occupation : Service At present Section Officer GAD Zilla Parishad, Beed R/o C/o GAD ZP Beed, District Beed. 2) Parasram s/o Bappasaheb Arsul, Age 46 years, Occupation : Service At present Superintendent GAD Zilla Parishad, Beed R/o c/o GAD Z.P. Beed, District Beed. 3) Rajendra s/o Dattatray Kangaonkar, Age 36 years, Occupation : Service Serving in Education Department Zilla Parishad,Beed R/o C/o Education Department, Z.P. Beed, District Beed. ... Petitioners. Versus 1) The State of Maharashtra, Through Police Inspector, Police Station Beed City. 2) The Superintendent of Police Beed, District Beed. 3) Murlidhar s/o Eknathrao Randive, Age 69 years, Occupation : Pensioner, 2 Cri. W.P. 1163/2010 R/o Murshadpur Maulinagar, Ashti, Taluka Ashti, District Beed. ... Respondents. -------- Shri. N.L. Jadhav, Advocate, for the petitioners. Shri. P.P. More, Additional Public Prosecutor, for respondent Nos.1 and 2. Shri. V.P. Golewar, Advocate, for respondent No.3. -------- CORAM: K.U. CHANDIWAL, J. DATE: 24th JUNE 2011 ORAL JUDGMENT: 1) Heard finally. Rule, returnable forthwith. 2) Extensive submissions are advanced by both the sides. Learned counsel for respondent No.3 has read the complaint, which is subject of attraction in the prosecution initiated by him before the learned Chief Judicial Magistrate, Beed. 3) Respondent No.3 was Gram Sevak. Considering the Government Circulars, by letter dated 22-5-2008 the Divisional Commissioner sanctioned deemed date to the 3 Cri. W.P. 1163/2010 complainant for the post of Extension Officer (Panchayat). It was further mentioned that deemed date would be effective for pensionary benefits from 12-9-1997 on the post of Extension Officer (Panchayat). According to the complainant, in order to avoid salary fixation benefits to him with a motive to have extraneous consideration the applicants herein have, by preparing false or incorrect record the respondent No.3 has been deprived of his legitimate benefits/rights. 4) Based on such complaint, learned Chief Judicial Magistrate Beed has issued directions of investigation in terms of Section 156(3) of the Code of Criminal Procedure which has given rise to registration of FIR No.117 of 2010 dated 8-11-2010 for offences punishable under sections 420,467,468,471,463,177,211,200,199,201,182,34 of the Indian Penal Code. 5) The petitioners are serving in Zilla Parishad Beed at different respective posts. 4 Cri. W.P. 1163/2010 6) The record illustrates that, respondent No.3 was suspended on 5-7-1997 and he was reinstated on 2-2-1998 and the deemed date of promotion was given effective from 12-9-1997. It is admitted, as could be seen from record, that respondent No.3 has not worked on the post of Extension Officer at the time he was under suspension. The prosecution in terms of above record is a question of criticism. 7) Briefly stated, Section 420 IPC deals with punishment for cheating as defined in Section 415, Section 466 IPC deals with forgery of record of Court or of public register etc. Section 468 conceive forgery for purpose of cheating. Section 471 IPC relates to using as genuine a forged document. The other sections of the Penal Code referred in present case relate to judicial proceedings. 8) Reading the questioned complaint, as a whole, it remotely gathers that there was any forgery any time of cheating in mismanagement or creation of forged record by the petitioners. If respondent No.3 has generated an 5 Cri. W.P. 1163/2010 impression of misdeeds by the petitioners being officers holding posts, however, that grievance is to be resolved in appropriate proceedings in the department and could not be given colour to criminal prosecution. 9) The learned counsel for the respondent No.3 has given reference to a communication dated 21-2-2009 addressed to respondent No.3 by the Divisional Commissioner Aurangabad and submits that, appeal of the respondent No.3 has been accepted by the Commissioner. This is contrary to record. By a communication dated 28-8-2008 it was informed that the Divisional Commissioner has approved the action of the Chief Executive officer in respect of the orders passed by the Chief Executive Officer dated 19-6-2008. 10) The learned counsel for the respondent No.3 has stated that it was only a direction of investigation in terms of section 156(3) of the Code of criminal Procedure and yet the learned Judge has to take cognizance as charge sheet is to be filed and hence powers under section 482 Cr.P.C. need not be exercised. 6 Cri. W.P. 1163/2010 11) The learned Additional Public Prosecutor has tendered report of the investigation and address that the extent of investigation so far carried does not suggest that any case is made out against the accused named in the complaint. Complaint is a fabricated case. This aspect shall be considered by the learned Chief Judicial Magistrate seized with the complaint filed by the respondent No.3. 12) In the matter of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 the Hon’ble Lordships of the Apex Court considered scope of Section 482 of the Criminal Procedure Code and criminal proceedings. The Hon’ble Lordships observed in terms of definition under section 415 of the Indian Penal Code which defines cheating, requires deception of person fraudulently or dishonestly induces that person (1) to deliver any property to any person, (2) to consent that any person shall retain any property, (3) intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or likely to cause damage or harm to that person in body, mind, reputation or property. 7 Cri. W.P. 1163/2010 13) The law on the point of powers of this court in terms of Section 482 of the Code of Criminal Procedure has been enunciated in AIR 1992 SC 604 – State of Haryana v. Bhajanlal. Seven guidelines illustrated by the Apex Court read as under : (a) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (b) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (c) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (d) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police office without an order of a Magistrate as contemplated under Section 155(2) of the 8 Cri. W.P. 1163/2010 Code. (e) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (f) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which a criminal proceeding is instituted) to the institution an continuance of the proceedings and/or where there is a specific provision in the Code or the concerned act, providing efficacious redress for the grievance of the aggrieved party. (g) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 14) The complaint dated 7-7-2009 presented to the learned Chief Judicial Magistrate at Beed illustrates in para 8 that on 13-8-2008 respondent No.3 has put in his report to the police station at Beed and Superintendent of Police. However, police did not take any action and on enquiry he was advised to approach Court. However, this aspect is not demonstrated by copy of any such communication or 9 Cri. W.P. 1163/2010 acknowledgment by the complainant / respondent No.3. The legal position in respect of FIR in terms of Section 154 of the Criminal Procedure Code is concerned, Full Bench of this Court in the matter of Panchabhai Popatbhai Butani v. State of Maharashtra, 2010 ALL MR (Cri) 244, explained procedural scheme mandated by the statute. A person has to first approach police station in terms of section 154 Cr.P.C. Refusal or failure by police in registering an offence, in terms of S.154(3), Cr.P.C. or other police officer referred to in S.36 Cr.P.C., then to be approached. Despite approaching Superintendent of Police, if grievance still persists such aggrieved person certainly can approach a Magistrate, taking recourse of section 156(3) Cr.P.C. In the present case, such precautions are not adhered to by the complainant / respondent No.3. 15) Even if investigation in terms of directions under section 156(3) of the Cr.P.C. is at premature stage. Considering the status of the accused working in the Zilla Parishad and discharging their official duties, continuation of the prosecution would be a hanging sword as against the persons discharging their lawful duty and its 10 Cri. W.P. 1163/2010 continuation is certainly to malign them in the premises where they are serving. The material already in existence and informed by the complainant even at this premature stage does not accelerate the prosecution. 16) The complaint questioned in the present proceedings being abuse of process of Court is quashed and set aside to the extent of the petitioners. Rule is made absolute. Sd/- (K.U. CHANDIWAL, J.) rsl