1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH:NAGPUR CRIMINAL APPLICATION NO. 3537 OF 2005 APPLICANTS: 1] Dr.Krishnaraos/o Jagobaji Parate, aged about 70 years, occupation : Retired Service, r/o 220 Laxmi Nagar, Nagpur. 2] Baburao s/o Bhaiyyaji Thombare, aged about 75 years, occupation : Retired teacher, r/o 5, Bharat Nagar, Amravati Road,Nagpur. 3] Punjabrao s/o Daulatrao Deshmukh, aged about 69 years, occupation : Retired, r/o Ulhas Nagar, Nagpur. VERSUS RESPONDENTS: 1] Dadarao Lakhuji Dambhare, aged about 58 years, occ : retired Head Master, r/o 820, Ashirwad Nagar, Nagpur. 2] State of Maharashtra through Police Station Officer, Lakadganj Police Station, Nagpur. 000 Mr. R.M. Parsodkar, Advocate for applicants Mr. R.P. Joshi, Advocate for the respondent no.1 Mr. O. D. Kakde, A. P.P. for respondent no.2 ===================================== CORAM: S.R. DONGAONKAR,J. DATE: 15/12/2006 ===================================== ORDER 2 Heard. Rule. Rule. Rule made returnable forthwith. Heard finally with consent of the parties. 1] This is an application under section 482 Criminal Procedure Code seeking quashing and setting aside the order passed by the learned Judicial Magistrate, First Class, 3rd Court, Nagpur in Criminal Complaint Case No.75/2005, an order of issuing process against the applicants for the offences punishable under section 468, 469, r/w 471 r/w 34 of Indian Penal Code. 2] Brief facts leading to this application can be stated thus - The respondent no.1 Dadarao has filed the criminal complaint case bearing no.75/2005 for the offences punishable under section 468, 469, 471 read with section 34 of Indian Penal Code, in the court of Judicial Magistrate, First Class, 3rd Court, Nagpur. During the course of the said proceedings, the learned Trial Judge, recorded the verification statement of complainant, and directed to call report of Police Station Officer, Lakadganj, Nagpur under section 202 of Criminal Procedure Code, by order dated 1.12.2002. The report was in negative. However, on 26.3.2004 the learned Magistrate, passed an order of issue of process against the present applicants. The said order reads thus: “Order [Date : 26.3.2004] Perused complaint, verification, heard the counsel 3 for complainant. It appears from the record that the documents pertaining to the Departmental enquiry are to be allegedly prepared as a false documents as it is not prepared as and when its purported to be made or prepared. As this documents in question are to be made in the premises of School Office and the paramount consideration for the, issuance of process is as bare reading of the complaint and the examination of complainant constitute an offence. Here in this case as per the definition of making of false document u/s 464 as who dishonestly or fraudulently made a document or part of documents. As the dishonesty is concerned as per section 24 and 25 of I.P.C. where in explanation given as “who ever does anything with intention of causing wrongful gain to one person or wrongful to loss to another person is said to do the said thing dishonestly. As such at this stage and on the basis of material before me there is prima facie sufficient ground for proceeding and hence, process be issued, u/s 204 of Criminal Procedure Code against the accused persons No.1, 2 and 3 for the alleged offence punishable u/s 468, 469, 471 read with section 34 of I.P.C. (i) issue process against the accused persons, issue summons on payment of P.F. (ii) Complainant is directed to supply copy of complaint and list of witnesses. Date :26.3.206 sd/ [P.M. Nagalkar] J.M.F.C. Court No.3, Nagpur.” It is needless to state that it was found by the learned Magistrate that there were prima facie sufficient grounds for proceeding against present applicant and therefore, process was issued under section 204 of Criminal Procedure Code. This order is challenged by applicants in the present application. 4 2] Learned counsel for the applicants - Shri Parsodkar has submitted that the report which was called by the learned Trial Magistrate under section 202 of Cr.P.C. was report after investigation of the offence, which was in negative and therefore, the order of issue process was incorrect. He further contended that the said process can be questioned in an application under section 482 of Criminal Procedure Code, as it would be abuse of process of law; as order of issue of process was totally unsustainable at law. In view of the judgment of this Court in 2004(4) Mh.L.J. 341 [Banwarilal Purohit and another ..vs.. Ramdeo Baba Sahakari Griha Nirman Samiti Limited, Nagpur and another] wherein relying on the observations of the Court in the case of Mohammad Atullah ..vs.. Ram Saran Mahto [AIR 1981 Supreme Court 1155, this court has held that process can not be issued on the same material that was available before directing the enquiry under section 202 of the Code of Criminal Procedure. The learned counsel for the applicants has further submitted that the matter in issue in the complaint filed by respondent no.1 concluded by the Civil Court and therefore, in such case, the complaint case is totally un-tenable and as such there was clear abuse of process of law. Further according to him, no satisfactory reasons were recorded by the learned Trial Judge while issuing process and therefore, the order impugned in this application is bad at law. It is also contended that if the proceedings are allowed to continue, holding that the material issues can be decided at the time of trial, the applicants would be put to severe difficulties and harassment because 5 they will have to attend the trial court's proceedings on each date and it would also affect the civil proceedings which are concluded against the respondent no.1. The respondent no.1 is found guilty in the Departmental Proceedings for misappropriation of the funds and therefore, at his instance the proceedings in complaint case, would be totally against the due process of law and causing injustice to the applicants and therefore, the impugned order is liable to be quashed and set aside, in the present application under section 482 of Criminal Procedure Code. 3] Per contra, learned counsel for respondent no.1 - Mr. R.P. Joshi submitted that the proceedings under section 482 are not maintainable. According to him, if at all the applicants were aggrieved by the order of issue of process by the learned Magistrate, they should have filed revision application in the Sessions Court. Direct approach this court is at all not warranted in the circumstances of the case. Further according to him, even if there are civil proceedings against the respondent no.1, relevant proceedings are still pending before the High Court and they are not concluded. Further according to him, proceedings in complaint case are totally different than that of civil proceedings between the parties and therefore, they are tenable if the offences are made out. He has also pointed out that the order of issue of process by the learned Magistrate is on subjective satisfaction of the Magistrate regarding grounds of proceedings and he need not even assign any reason while issuing process. Therefore, according to him, the order passed by the 6 learned Magistrate, impugned in this application is correct on merits and is not liable to be set aside. he has also contended that if the judgment in 2004(4) Mh.L.J. 341 [Banwarilal Purohit and another ..vs.. Ramdeo Baba Sahakari Griha Nirman Samiti Limited, Nagpur and another ] of this court is relied upon, then the proper course would be to remand the matter to the learned Magistrate for consideration of matter afresh. 4] It may be stated that the learned A. P.P. for respondent no.2 has nothing specific to say. 5] The learned counsel for both the applicants and respondent no. 1 have relied on several authorities. First to contend that this application under section 482 of Criminal Procedure Code is maintainable against the order of issue of process by the Judicial Magistrate First Class, an order of issue of process need to assign reasons for issuing process, the report if any received under section 202 as per order of the learned Magistrate, has to be taken into consideration before issue of process, and lastly if civil proceedings are pending or concluded, the findings therein would be binding on the criminal court. In short, both the parties have relied on these submissions supported by some or the other authorities. I would discuss the same during the course of this order. 6] At this stage, I propose to make brief reference to the authorities cited by the learned counsel for the applicants. He has 7 referred to the following authorities. 1] AIR 1992 S.C. 601 [ STATE OF HARYANA AND OTHERS ..VS.. CH. BHAJAN LAL AND OTHERS 2] AIR 1992 SC 1815 [PUNJAB NATIONAL BANK ..VS. SURENDRA SINHHA] 3] 1998[1]MH.L.J.798 [RAMESH NAGARE ..VS.. ASHOK NAGARE] 4] [2002]3 SCC 89 [STATE OF KARNATAKA ..VS.. M. DEVENDRAPPA 5] 2004 ALL MR [CRI] 3469 [SC] [SUBRAMANIUM SETHURAMAN ..VS.. STATE OF MAHARASHTRA] 6] 2004 ALL MR [CRI.]1802 [M/S SHRI SRINIVASA CLOTH SHOP ..VS.. STATE OF MAHARASHTRA] 7] 2004 ALL MR [CRI]3462[SC] [M/S ZANDU PHARMACEUTICALS WORKS ..VS.. MD. SHARAFUL HAQUE] 8] 2005[3] MH.L.J. 778 [V.K. JAIN ..VS.. PRATAP V. PADODE] 9] 2006 ALL MR [CRI]2444 [KUNDALIK BHOSALE ..VS.. RAMNATH BHOSALE] 10] 2006 ALL MR [CRI] 2601 [VISHVANATH R. PATIL ..VS.. ASHOK M. SONAR] 11] AIR 2004 SC 115 [ SHANTIKUMAR PANDA ..VS.. SHAKUNTALA DEVI] 12] AIR 1970 SC 1381 [LALTA AND OTHERS ..VS.. STATE OF U.P.] 8 13] 1987[1] CRIMES 842 [S.K. SINHA ..VS.. S.K. SHINGHAL KANO] 14] 1989[2] CRIMES 1999 [KASHMIRAH SINGH ..VS.. STATE OF PUNJAB] 15] AIR 1981 SC 1155 [MOHD ATULLAH VS.. RAM SARAN MAHTO] 7] Learned counsel for the respondent no.1 has referred to the following authorities. 1] (2006)4 SCC 359 [MINU KUMARI AND ANOTHER VS. STATE OF BIHAR AND OTHERS] 2] (2001)2 SCC 17 [LALMUNI DEVI (Smt) vs. STATE OF BIHAR AND OTHERS] 3] (2006)7 SCC 188 [CENTRAL BUREAU OF INVESTIGATION VS. RAVI SHANKAR SRIVASTAVA, IAS AND ANOTHER] 4] (2004)1 SCC 525 [STATE OF MAHARASHTRA VS. SALMAN SALIM KHAN AND ANOTHER] 5] (2005)1 SCC 122 [ZANDU PHARMACEUTICL WORKS LTD. AND OTHERS VS. MOHD. SHARAFUL HAQUE AND ANOTHER] 6] (2004)4 SCC 432 [JAGDISH RAM VS. STATE OF RAJASTHAN AND ANOTHER] 7] (2003)4 SCC 139 [DY. CHIEF CONTROLLER OF IMPORTS & EXPORTS VS. ROSHANLAL AGARWAL AND OTHERS] 9 8] (2004) 11 SCC 622 [BHAGAT RAM VS SURINDER KUMAR AND OTHERS] 9] AIR 1989 SC 885 [M/S. INDIA CARAT PVT. LTD., VS. STATE OF KARNATAKA AND ANOTHER] 10] (2000)9 SCC 547 [MARATT RUBBER LTD. VS. J.K.MARATTUKALAMA] 11] (1998) 8 SCC 275 [C.N.RUDRAMURTHY VS. K.BARKATHULLA KHAN AND OTHERS] 12] (2002)2 SCC 420 [SUGANTHI SURESH KUMAR VS. JAGDEESHAN] 13] (2002)4 SCC 638 [DIRECTOR OF SETTLEMENTS, A.P. AND OTHERS VS. M.R.APPARAO AND ANOTHER] 14] 2006 (4) MH.L.J.771 [NATURAL SUGAR AND ALLIED INDUSTRIES LTD., AND ANOTHER VS. RAZZAK S/O HAZI GAFFAR AND OTHERS] 8] At this stage it would be desirable to find out as to whether the proceedings under section 482 of Criminal Procedure Code are maintainable against the order of issue of process. In this behalf, learned counsel for the applicant has relied on the principles laid down in AIR 1992 SC 601 [State of Haryana and others ..vs..Ch. Bhajanlal and others], wherein in paragraph 108, the following are the observations: “108-In the backdrop of the interpretation of the various relevant provisions of the code under chapter XIV and of the principle of law enunciated by this court in a series of decisions relating to the exercise of the extra-ordinary 10 power under article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise clearly defined and sufficiently chanalised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad times of cases wherein such power should be exercised. (1) 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. (2) 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 officer under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code. (3) Where the un-controverted 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. (4) 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 officer, without an order of magistrate, as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint or 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. (6) Where there is an express legal bar engrafted in any 11 of the provision of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and 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. (7)Where a criminal proceeding is manifestly attended with malafide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite things due to private and personal grudge.” 9] He has also relied on the observations of the Apex Court in [2002]3 SCC 89 [State of Karnataka..vs.. M. Devendrappa and another], wherein in paragraph 9 the Apex Court has observed thus: “9. As noted above the powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the Highest Court of a state should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard - and - fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. [See Janta Dal ..vs.. H.S. Chouhari, and Raghubir Saran (Dr.) Versus State of Bihar]. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a convictijon would be sustainable and on 12 such premises arrive at a conclusion that the proceedings are tobe quashed. It would be erroneous to assess the material before it and conclude that the complaint can not be proceeded with. In a proceeding instituted on complaint exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under section 482 of the Code. It is not however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is malafide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When any information is lodged at the police station and an offence is registered, then the malafides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of malafides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [see - Dhanlaxmi ..vs.. R. Prasanna Kumar, State of Bihar ..vs. P.P.Sharma, Rupan Deol Bajaj ..vs.. Kanvar Palsingh Gil, State of Kerla ..vs.. O.C. Kuttan , State of U.P. ..vs.. O.P. Sharma, Rashmi Kumar ..vs. Mahesh Kumar Bhada, Satvinder Kaur ..vs.. State (Government of N.C.T. of Delhi) and Rajesh Bajaj ..vs.. State of N.C.T. of Delhi.]” 10] He has also taken me through the observations of the Apex Court in 2004 ALL MR [CRI]3469 [Subramanium Sethuraman ..vs.. State 13 of Maharashtra & another], particularly paragraph 17, 18 and 19 which reads thus: “17- As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused to challenge an order in an interolcutary stage is the extra-ordinary remedy under section 482 of the Code and not by way of an application to recall the summons or to discharge which is not contemplated in the trial of a summons case. 18-The learned counsel for the appellant then sought leave of this court to approach the High Court by way of 482 petition questioning the issuance of process by the Magistrate. The same was very strongly opposed by the learned counsel for the respondents who contended that the complaint in this case was filed as far back as 24th of December, 1996 and though there was a direction earlier for an early disposal of the trial, appellant and the other accused have successfully managed to keep the trial in abeyance by initiating one proceeding after another, even upto this court. He submitted that both this court as well as the High Court in the earlier proceedings has left the question of validity of statutory notice to be considered at the trial, but the accused persons including the appellant herein are time and again raising the same issue with a view to delay the trial. Hence no such permission as sought for by the appellant should be granted. 19- We see that this court while dismissing earlier SLP has withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to decided at the trial. Be that as it may, we can not prevent an accused person from taking recourse to a remedy which is available in law. In Adalatprasad's case we have held that for an aggrieved person the only course available to challenge the issuance of process under section 204 of the Code is by way of a petition under section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under 14 section 482 we can not also deny him the statutory right available to him, in law. However, taking into consideration the history of this case, we have no doubt the concerned court entertaining the application will also take into considerations i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of application and petitions filed by the accused.” 11] He has further taken me through the observations of this court in 2006 ALL MR (Cri) 2601 [Vishvanath Ramkrishna Patil and another .... vs. Ashok Murlidhar Sonar and another], wherein after considering the relevant authorities this court has held in paragraph 9, 10, 11 and 12 as under: “9. Therefore, the party who can avail remedy of revision under section 397 of Cr.P.C. can also definitely invoke the inherent power of the High Court under section 482 of Cr.P.C. The petition under article 227 of the Constitution of India is maintainable even otherwise at the instance of the aggrieved party against the order passed by the courts below. 10- The Apex Court in Shail (Smt.)..vs.. Manojkumar and others, (2004)4 SCC 785 : 2004(3) Mh.L.J. 503 : (2004 ALL MR (CRI)2220 (S.C.)) has expresed in reference to the power under article 227 of the Constitution of India as under: 3 - In Suryadev Rai ..vs.. Ramchandra Rai 2004(1) Mh.L.J. (S.C.)633 = (2003)6 SCC 675 this court has held that in exercise of power of Superintendence conferred under article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or 15 Tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior court or Tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. It is difficult to curtail this remedy merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power under article 227. What is required is to see the facts and circumstances of the case while entertaining such petitions under article 227 of the Constitution and / or under section 482 of Cr.P.C. The view therefore, as taken in both cases V.K.Jain and Saket Gore , no way express total bar. If no case is made out by the petitioner or the party to invoke the inherent power as contemplated under section 482 of Cr.P.C. and / or the discretionary or the supervisory power under article 227 of the Constitution of India they may approach to the revisional court, against the order of issuance of process. 11- Taking into consideration the facts and circumstances of those cases, the learned Judge has observed in V.K. Jain and Saket Gore Supra that it would be appropriate for the parties to file revision application agaisnt the order of issuance of process. There is nothing mentioned and / or even observed that there is total bar to file petition under section 482 of Cr.P.C. and / or petition under article 227 of the Constitution of India. 12- The Apex Court's decision already referred above nowhere prohibited or expressly barred to invoke section 482 of Cr.P.C. or article 227 of the Constitution of India against the order of issuance of process.” 12] As against this, the learned counsel for the respondent no.10 relied on the principles laid down by the Apex Court in 2006(4) SCC 359 16 [Minu Kumari and another ..vs.. State of Bihar and others], wherein the Apex Court has observed in paragraph 18, 19 and 20 as under: “18- Section 362 of the Code, as noted above, permits correctness of clerical or arithmetical errors. There is no quarrel with that proposition. But the High Court seems to have completely lost sight of the scope and ambit of Section 482 of the Code. 19- The section does not confer any new power on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three