1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.859/2009 1. Prabhakar s/o Dattatraya Ghogare, age 63 yrs, Occ. Pensioner, R/o Upale (M), Tq. * Dist Osmanabad, (President of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 2. Hanumant s/o Sitaram Deshmukh, age 67 yrs, occ. Pensioner, r/o as above. (Vice President of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 3. Arun s/o Balwant Ghogare, age 59 yrs, Occ. Agril, r/o as above. (Executive President of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 4. Gangadhar s/o Kerba Phalke, age 65 yrs, occ. Pensioner, R/o as above. (Joint Secretary – Administration of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 5. Ramchandra s/o Khandu Surwase, age 74 yrs, Occ. Pensioner, r/o as above. (Joint Secretary Finance of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 6. Digambar s/o Tatya Jagdale, age 70 years, Occ. Pensioner, r/o as above. 2 (Member of M.C. of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 7. Mahadeo s/o Maruti Gawad, age 72 years, Occ. Agril, R/o Khed, Tq. & Dist Osmanabad. (Member of M.C. of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 8. Shivdas s/o Bhimashankar Jangam, age 68 years, Occ. Labourer, R/o Uple (M), Tq. & Dist Osmanabad, (Member of M.C. of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad). 9. Hamja s/o Mohamadali Mulani, age 50 years, Occ. Peon, r/o as above. PETITIONERS. V E R S U S 1. The State of Maharashtra, (Copy served on APP High Court of Bombay Bench at Aurangabad) 2. Arjunrao s/o Bhagwanrao Ghogare, age 62 years, Occ. Agril, R/o Upale (M), Tq. & Dist Osmanabad. RESPONDENTS. ======== Shri S.V. Warad, Advocate for the petitioners. Shri V.V. Wagh, AGP for the respondent No.1- State. Shri R.V. Naiknavare advocate for R-2. CORAM : P. R. BORKAR, J. DATE : 02 nd DECEMBER, 2009. 3 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith. Heard by consent of parties. 2. In this petition, the petitioners, who are the members of the Managing Committee of Upale Rayat Shikshan Prasarak Sanstha, Upale (M), Tq. & Dist Osmanabad have prayed for dismissing the complaint bearing No. 290/2008 filed by the respondent No.2 before the Chief Judicial Magistrate, Osmanabad. 3. Heard Shri S.V. Warad, advocate for the petitioners, R.V.Naiknaware for respondent No.2, and AGP Shri V. V. Wagh for respondent no.1- State. 4. The learned Advocate has taken me through the entire record. It is clear from the record that present respondent No.2 filed complaint M. A.No,290/2008 against present petitioners alleging that they have misappropriated the funds/grants provided by the State Government for development of play ground and thus cheated the Government. He has stated that in respect of three schools run by the petitioners, amounts as mentioned in paragraph No.4 of the complaint were sanctioned as grants for development of play ground. Expenses were also shown, but work was not 4 actually carried out and thus offence under section 406 and 420 are committed. Prayer made in the application is to direct the police to make investigation. The Chief Judicial Magistrate, Osmanabad by order dated 07.10.2008 directed the police Inspector, Osmanabad Rural Police Station, Osmanabad to investigate into the complaint under section 156 (3)of Cr. P. C. 5. As against said order of investigation, revision application No. 151/2008 was filed. Said revision application came to be decided by the Ad-hoc Additional Sessions Judge, Osmanabad on 05.08.2009, whereby he confirmed the order of the Magistrate and dismissed the revision petition. In fact, it is the said order, which the petitioners intends to challenge and they thereby wanted that the investigation under section 156 (3) Cr.P.C be quashed and set aside, but prayer to that effect is not made. Relevant prayer clause ‘A’ to ‘D’ are as follows :- A. This Criminal Writ Petition be kindly allowed. B. Record and proceedings be called for : C. The complaint bearing M.A.No.290/2008 filed by the respondent No.2 herein before the learned Chief Judicial Magistrate Osmanabad against the present petitioners for the alleged offences under section 420,406 be dismissed. 5 D. Pending hearing and final disposal of this Criminal Writ Petition, the order dated 07.10.2008 in M.A.No.290/2008 passed by the learned Chief Judicial Magistrate, Osmanabad as well as the further proceedings in M.A.No. 290/2008 may kindly be stayed ; E. Any other suitable relief to which the petitioners are found entitled to may kindly be granted. 6. After arguments are over, while I am dictating this order, Shri Warad, advocate for the petitioners, makes prayer for allowing him to amend the prayer clause, however, Advocate of respondent No.2 has strong objection to the same. In my opinion, the body of the petition clearly shows that the petitioners wanted to challenge the order of investigation under section156 (3) of Cr.P.C. So, in the interests of justice, petitioners should be allowed to amend the prayer clause and add additional prayer which is required to be made and which the petitioners wanted to make in this petition. Leave granted to amend/add prayer clause. At this stage, Advocate of respondent No.2 makes it clear that he does not want to file any additional reply affidavit and matter may be decided on merit. 7. One of the important ground made out by the petitioners is that already another complaint for same purpose of investigation into the utilization of sports grants had been filed by one Santosh Subhash Jadhav as 6 complaint R.C.C. No.460/2007 in the Court of Chief Judicial Magistrate, Osmanabad. Copy of the complaint is produced at Exh. ’J’ with the petition. Present petitioner no.1 who is the Secretary of Rayat Shikshan Prasarak Mandal Upla (M) is respondent No.5 in that complaint. Same prayer for investigation into utilization of sports grant was made in the said complaint, as is made in the complaint, made by respondent No.2 in M.A.No.290/2008. The Chief Judicial Magistrate, Osmanabad by order dated 14.09.2007 directed the Police Inspector, City Police Station, Osmanabad to investigate into said complaint under section 156 (3) of Cr.P.C. Perusal of complaint filed by respondent No.2 Exh.A and complaint filed by Santosh Jadhav Exh.’J’ indicate that they relates to some matter and already the investigations are being carried out by Police Inspector, City Police Station, Osmanabad. Under the circumstances, investigation into same matter by Police Inspector, Rural Police station would be un-advisable and undesirable. There need not be two investigations into same crime. It is clear that this fact was not brought to the notice of Chief Judicial Magistrate, Osmanabad when he passed order dated 07.10.2008 or of Adhoc Additional Sessions Judge, Osmanabad while he was deciding revision application no.151/2008. 8. In this view of the matter, since already investigation is ordered, this Writ Petition is allowed and it is directed that order dated 07.10.2008 7 passed by Chief Judicial Magistrate Osmanabad in M.A.No.290/2008 as confirmed in Criminal Revision No.151/2008 passed by Adhoc Additional Sessions Judge, Osmanabad is hereby set aside. Cognizance of offence is already taken and order of investigation is passed under section 156 (3) of Cr.P.C. Complaint application M.A. No.290/2008 stands dismissed. However, the respondent no.2 is at liberty to cooperate with the Police Inspector City Police Station, Osmanabad, who is investigating into the matter as per order passed by the Chief Judicial Magistrate in RCC No.460/2007. Police inspector, City Police Station, is also directed to record the statement of the complainant respondent no.2 from this Writ Petition and also take into consideration documents which he intends to produce. Inform this order to Police Inspector, City Police Station, Osmanabad. Rule is made absolute accordingly. Writ Petition is disposed off. [ P. R. BORKAR, J. ) JUDGE. ..... aaa/859.09