1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRIMINAL APPLICATION NO.: 2235 OF 2006 Santosh Janardhan Garad Versus Kalyan S/o Bhauji Thorat and another. *** Mr. A. P. Chawre, Advocate for the Applicant. Mr. G. V. Patil, Advocate i/b Mr. V. D. Salunke, Advocate for Respondent No.1. Mrs. B. R. Khekale, A.P.P. for the Respondent/ State. *** ORAL ORDER: 1. Heard. Rule. By consent of the parties, returnable forthwith. 2. The accused Santosh has taken recourse to section 482 of the Criminal Procedure Code and urged to quash the proceedings in complaint RCC No.78 of 2003 with the file of learned J.M.F.C., Paithan. 3. The facts leading to the chequered history of litigation are, the present accused Santosh, by virtue of a deed of adoption, dated 28th September, 1999 executed by Janardhan Kachru Garad and his wife Prayagbai W/o Janardhan Garad claimed to be adopted son of said Janardhan Garad and since said Janardhan Garad himself was a project affected person, the applicant herein applied to the 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. government authorities and staked claim as project affected person. This is clear from the order dated 12th January, 2000 appointing him as a person from project affected category on temporary basis and complying other conditions in the order. 4. A writ petition No.195 of 2002 came to be filed by one Shamrao Tawajee Doiphode in which present accused Santosh was respondent No.12. The Division Bench of this Court, by order dated 12th January, 2003 rejected the same. 5. The counsel for the original accused Santosh urged, since there is already rejection of writ petition No.195 of 2002, the matter could not have been reopened by filing either F.I.R. or resorting to proceeding under section 200 of Criminal Procedure Code or the learned J.M.F.C. passing orders in terms of section 156 (3) of Criminal Procedure Code. 6. The counsel for the accused/ applicant Santosh is not correct that the writ petition deals with such aspect of the matter. Indeed, the writ petition came to be disposed of, as the applicant therein had alternate remedies and forum available, which the learned Judges have elaborately discussed in the order. 7. The learned counsel for the accused/ applicant Santosh contended that the learned Additional 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Sessions Judge sitting in Revision was wrong by exercising powers under section 397 Criminal Procedure Code when there was already a subjective satisfaction by the learned J.M.F.C. who did not entertain the complaint filed by the complainant for various sections of penal code. The counsel also urged the issuance of process under section 420 was uncalled for as it was not a case formulated by the complainant. 8. In order to indicate role of Revisional Court and particularly of the High Court, the counsel for the accused/ applicant Santosh elaborately read the judgment of Apex Court in the matter of "Johar and others V/s Mangal Prasad and another" reported in (2008) 3 SCC 423. The observations in the matter of Johar, to which he gave reference, is in relation to a matter of "Mahendra Pratap Singh V/s Sarju Singh and another" reported in [1968 SC 707, para 8 therein], is as under: "8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stphens V. Nosibolla [AIR 1951 SC 196] only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, the Logendranath Jha V. Polai Lal Biswas [AIR 1951 SC 316] this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is 'perverse' or 'lacking in true correct perspective'. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the subordinate court, it is always difficult to re- weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy V. State of A.P. [AIR 1962 SC 1788] it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court." 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 8. The controversy involved in the matter of Johar was interference by the High Court in a matter of acquittal without noticing any perversity or apparent illegality in the order of acquittal. Same principles may not be and could not have been applied in the facts in the present case, for the simple reason that it was the error apparent demonstrated by the learned J.M.F.C. in not entertaining the complaint, on the ground that there was already a F.I.R. which did not activate and that there was a finding of High Court in Writ Petition No.195 of 2000. These aspects, the learned Sessions Judge rightly considered, were not relevant to the prosecution which was before the learned JMFC. 9. The opening paragraph indicates that based on an adoption deed, present accused applicant Santosh procured government employment. He could not have done so as there is clear inhibition indicated in the Hindu Adoptions and Maintenance Act, 1956. Section 10 (4) and section 11 (i) thereof, bars such adoption. The contention that these aspects could not have been dealt with in Criminal Court, though appears to be cozi, but difficult to digest as the position of law could not be changed as the 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Tahsildar's report indicate there were already two issues to the adoptive parents at the material time in the year 1999 when the deed was got registered. 10. It was canvassed that the learned Judge ought to have been slow in the matter while sitting in revision under section 397 of Criminal Procedure Code. However, as stated earlier, the learned Judge on analytical study of the matter has come to the conclusion of issuing process under section 420 of Indian Penal Code. The learned Judge found that while securing the government employment, the accused submitted adoption deed showing his eligibility to be son of Janardhan Kacharu Garad which he knew that he could not do so as Janardhan Garad had already two living children viz. Subhash and Laxman, whose names are indicated in the electoral roll and also they possessed a ration card. It was in this scenario the learned Sessions Judge found that prima facie it could be a case of infraction of section 420 I.P.C. I do not see that there was any error on the part of the learned Judge in doing so. 11. The scope under section 482 of Criminal Procedure Code is time and again said to be sparingly used. It is not as if it is applied, and for the Court to readily act upon it. In "R.P. Kapur V/s State of 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Panjab [AIR 1960 SC 866] the Apex Court observed: (i) where it manifestly appears that there is a legal bar against the institution or continuance, for want of sanction; (ii) where the information in the First Information report or complaint taken at its face value and accepted in their entirety, do not constitute the offence alleged. (iii) Where the allegations constitute an offence but there is no legal evidence adduced in support or the evidence adduced clearly or manifestly fails to prove the charge. 12. In the matter of "State of Haryana and others V/s Ch. Bhajan Lal and others" reported in AIR 1992 SC 604 the Honourable Lordships of Supreme Court have categorised seven situations for invoking the power under section 482. The illustrative categories for the present purpose is 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. 13. There is no quarrel on the proposition that the 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. powers of the High Court under section 482 Cr.P.C. require great caution in its exercise. Taking search of these facts and the legal position, as has been highlighted in the matter of "State of Andhra Pradesh V/s Bajjoori and another" reported in [(2009) 1 SCC 114) I find that there was no error on the part of the learned Sessions Court in issuing process for the offence under section 420 read with 34 of Indian Penal Code against the accused/ applicant. The observations are prima facie in nature. Application dismissed. Rule discharged. [K. U. CHANDIWAL, J.] Dated:24/08/2009. ans/2235