1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.443 OF 2009 Arun s/o. Ramprasad Varma, Age-53 years, Occu-Business, R/o.Sadar Bazar, Ambajogai, Dist. Beed. PETITIONER VERSUS 1. The State of Maharashtra, 2. Naib-Tahsildar (Supply) Ambajogai, Ganesh S/o.Laxmanrao Ramdasi, Age-55 years, Occu-Service, Inspecting Officer, Civil Supply, Ambajogai R/o.Ambajogai, Dist.Beed. RESPONDENTS Mrs.Asha Sanjay Rasal, counsel for petitioner. Mr.K.S.Patil, APP for State. Mr.S.S.Thombare, counsel for respondent no.2. (CORAM : V.R.KINGAONKAR, J.) DATE : 10/08/2009 PER COURT : 1. By this petition, the petitioner challenges judgment and order dated 28th April 2009 rendered by learned Ad-hoc Additional Sessions Judge, Ambajogai in Criminal Revision Application No.88/2008 whereby the order passed by the Learned Judicial Magistrate (F.C.) 2 whereby investigation u/s. 156(3) of The Criminal Procedure Code has been set aside and the original complaint filed by the petitioner came to be dismissed. 2. The respondent is Naib Tahsildar (Supply) attached to Tahsil Office, Ambajogai. He was authorized to inspect the fair price shops in order to verify whether distribution of grains and other articles through the Public Distribution System (PDS) was being properly effected. The petitioner was running a fair price shop no.5 at Ambajogai. His license to run the fair price shop was revoked after giving him an opportunity of hearing. The petitioner preferred an appeal which came to be dismissed. 3. Briefly stated, the petitioner’s case before the Learned Judicial Magistrate, as enumerated in his complaint application, is that the respondent no.2 demanded Rs.50,000/- from him somewhere in June 2007 as contribution for construction of bungalow of the then Tahsildar, Ambajogai, which was being done at Latur. He was threatened that he would be troubled if such contribution amount is not paid. Lastly, on 16th June 2007, the respondent no.2 reminded him of the demand for contribution and told him that if the said amount was not paid, then it may result in ill consequences. The respondent no.2 gave a false report to the superior officer to the effect that on 16/06/2007, a morcha of Janwadi Mahila Sanghatana was taken to office of the Deputy Collector cum Executive Magistrate against the performance of the petitioner in respect of the fair price 3 shop no.5. The superior officers considered such report as basis for revocation of the license of the fair price shop. In fact, no such morcha was taken to the office of Deputy Collector on 16th June 2007 against the petitioner. The petitioner alleged that false record was prepared by the respondent no.2 against him in order to cause him wrongful loss. Consequently, he filed the private complaint case for offences u/s. 218, 219, 220, 420, 467, 468, 470 and 471 against the respondent no.2. 4. The Learned Judicial Magistrate by his order dated 28th August 2008 directed the concerned police to investigate u/s. 156(3) of The Criminal Procedure Code and to send report either u/s. 169 or 173 of The Criminal Procedure Code. The respondent no.2 preferred Criminal Revision Application No.88/2008 against the said order. The Learned Sessions Judge allowed the revision petition and was pleased to set aside the order rendered by the Learned Magistrate. Feeling aggrieved, the petitioner has preferred this petition. 5. Heard learned counsel for the parties and learned APP. 6. Mrs.Rasal would point out from copy of the reply received from the Deputy Collector Office that the Janwadi Mahila Sanghatana was to take out the morcha on 21st June 2007 of which information was given on 16th June 2007. It has been also reported that in the memorandum submitted by the said Organization there was no reference to the fair price shop no.5, situated in Panchsheel Nagar, 4 Ambajogai. On basis of such communication, Mrs.Rasal would submit that there is prima facie evidence to infer falsity of information given by the respondent no.2 in his report submitted to the Deputy Collector which was the basis for recalling the fair price shop license granted to the petitioner. Mrs.Rasal would submit that false report submitted by the respondent no.2 resulted into wrongful loss to the complainant and therefore investigation in such a case is warranted. She would submit that the learned Magistrate has rightly directed investigation whereas the Revisional Court exceeded its jurisdiction and recalled such order on basis of appreciation of the material on record. It is contended that the impugned order is patently erroneous and liable to be quashed. As against this, Mr.Thombare supports the impugned order. 7. At the outset, let it be noted that there is no tangible material on record to infer any ill intention of the respondent no.2 while submitting adverse report against the petitioner. Except the statement in the complaint application, there is nothing on record to show that the respondent no.2 had demanded amount of Rs. 50,000/- towards contribution for construction of bungalow of the then Tahsildar at Latur. The petitioner did not spell out the name of the then Tahsildar nor had placed on record any document to show that such construction work was going on at Latur. Moreover, why for the bungalow of the then Tahsildar, the respondent no.2 should take such extreme steps to threaten the petitioner of dire consequences if the contribution amount was not shelled out by 5 him ? Their appears no satisfactory answer. 8. One can not be oblivious of the fact that the inquiry was conducted by the Deputy Collector, Ambajogai before revocation of the license. The respondent no.2 might have given any kind of report. Even assuming that he gave report which was factually incorrect or false, then also it was duty of the competent authority to verify the information contained in such report and thereafter to act upon the same. The respondent no.2 submitted such report in the performance of his official act as the Public Officer appointed to have overall supervision and control on the functioning of the Public Distribution System (P.D.S.) What appears from the communication placed on record is that the Women’s Organization had submitted a memorandum dated 16th June 2007 that it would take out a morcha at the Deputy Collector’s Office on 21/06/2007 against the working of the Public Distribution System (P.D.S.). It is obvious that on basis of such memorandum, the respondent no.2 submitted a report to the Deputy collector. 9. Being a public servant, the respondent no.2 can not be prosecuted for an act committed by him while acting or purporting to act in the discharge of his official duty. There is clear nexus between the act of his giving such report to the Deputy Collector and the work assigned to him. The investigation into the complaint can not be regarded as legal and proper unless the complainant had sought the sanction from the competent authority. Not only that such sanction 6 is required u/s. 197 of The Criminal Procedure Code, but that under provisions of the Essential Commodities Act, as well as in view of Section 16 of The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, no criminal proceeding would lie against the public servant who acted in good faith or when his action is in pursuance to the provisions of the said Act. It need not be re-iterated that the respondent no.2 had not demanded any amount for his personal gains, nor there is any iota of evidence except and save, bald assertion of the petitioner that the amount was demanded towards contribution for construction work of bungalow of the Tahsildar at Latur. 10. The revisional jurisdiction need not be invoked in each and every case of such kind. Still, however, the order directing the police to register and investigate the case is a judicial order. It is a kind of final order in so far as the Court of Magistrate is concerned. In exceptional cases, the revisional court is justified in causing interference wherever it is found that the order to carry out such investigation is uncalled for and is likely to be abuse of the process of the Court. In this view of the matter, I find that the impugned order of the revisional Court is quite sustainable. 11. In the result, the petition is dismissed. (V.R.KINGAONKAR, J.) khs/AUGUST 2009/cri.w.p.443-09