1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 582 OF 2008 1 Pralhad s/o Vithal Zungure, age: 45 years, Occ: Agri., R/o Ukhanda, Tq. Patoda, District Beed. 2 Kondabai w/o Digambar Phalke, age: 48 years, Occ: Household, R/o Pokhri, Tq. and District Beed, now residing at Ukhanda, Tq. Patoda, District Beed. 3 Shivaji s/o Rangnath Lokhande, age: 40 years, Occ: Agri., R/o Ukhanda, Tq. Patoda, District Beed. 4 Tulshiram s/o Piraji Bhondve, age: 55 years, Occ: Agri., R/o Ukhanda, Tq. Patoda, District Beed. 5 Jagannath s/o Vithoba Bhondve, age: 48 years, Occ: Agri., R/o Ukhanda, Tq. Patoda, District Beed. 6 Satyabhamabai w/o Gyandev Aage, age: 60 years, Occ: Household, R/o Ukhanda, Tq. Patoda, District Beed. 7 Nivrutti s/o Vithal Kekan, age: 45 years, Occ: Agri., R/o Ukhanda, Tq. Patoda, District Beed. Petitioners 2 Versus Gangubai w/o Dhondiba Kadam, age: 45 years, Occ: Household, R/o Ukhanda, Tq. Patoda, District Beed. Respondent Mr.C.V.Thombre, advocate for petitioners. Mr.S.S.Thombre, advocate for Respondent. CORAM: R.M.BORDE, J. DATE : 18th July, 2009. ORAL JUDGMENT: 1 This is petition by original accused nos.1, 2, and 4 to 8 (Accused No.3 Uttam Shinde died during pendency of proceedings. Hence, his name is deleted from the record) raising exception to the orders passed by Ad hoc Additional Sessions Judge-1, Beed, on 20.02.2008, dismissing Criminal Revision Application bearing No.35/2007 presented by petitioners – original accused, thereby confirming order passed by Judicial Magistrate, First Class, Patoda below Exhibit-123 in Regular Criminal Case No.20/1998. 2 Respondent – original complainant has presented complaint alleging commission of offence punishable under Sections 166, 465, 466, 471 read with Section 109 of the Indian Penal Code against accused – petitioners herein. It is contended by the complainant in his complaint that on 02.10.1995, at the time of commission of offence, accused no.1 was the Sarpanch, whereas accused nos.3 to 7 were the members of village panchayat Ukhanda. Accused no.8 was serving as Gram Sevak. One Dhondiba Kadam was the father of complainant. He owned Gram Panchayat House Nos.58/1 and 58/2, situate at village Ukhanda. He died in the year 1989. On his demise, names of complainant Gangubai, her son 3 Baburao and daughter Bakulabai were recorded as owners in respect of suit houses. Accused No.2 Kondabai, in fact, has no right, title or interest in respect of suit houses, which belong to Dhondiba Kadam i.e. father of complainant. It is alleged that Kondabai left company of her former husband and was residing with father of complainant. Natural father of accused no.2 was resident of Hadgaon, Taluka Selu. It is further disclosed in the complaint that in the year 1992, houses in question were acquired by the State Government for submergence in Ukhanda Minor Irrigation Tank. After following due procedure, award under Section 12 of the Land Acquisition Act was declared by the Special Land Acquisition Officer. Complainant could not secure amount of compensation for considerable period. Accused no.1 approached her and demanded an amount of Rs.10,000/- for securing the amount of compensation from the office of Special Land Acquisition Officer promptly. Complainant did not respond to the offer made by accused no.1. Accused no.1, as such, set up accused no.2 against the complainant. It is her contention that in the year 1995, Rehabilitation Officer, Beed had seized record maintained by Village Panchayat Ukhanda in order to avoid any manipulation therein. However, it is alleged that accused no.1 in collusion with Accused nos.3 to 7 were instrumental in adopting a resolution which facilitated inclusion of name of accused no.2 in the record as legal heir of deceased Kondiba Kadam. On the basis of manipulated record, accused no.2 presented suit bearing No.245 of 1995 in the Court of Civil Judge, Junior Division, Patoda claiming restraint order against the complainant from withdrawing the amount of compensation in respect of acquired houses. The Civil Court, however, returned the plaint on the ground that Civil Court has no jurisdiction. Accused no.2 thereafter raised an objection with Special Land Acquisition Officer in respect of distribution of amount of compensation. Complainant alleges that taking advantage of manipulated record, accused 4 no.2 has lodged claim against the complainant. It is contended that all the accused are guilty for fabricating the record. 3 On presentation of the complaint, initially Judicial Magistrate, First Class, Patoda, recorded verification statement of the complainant and directed her to lead evidence under Section 202 of Criminal Procedure Code before issuance of process. Complainant led her evidence and after finding that the complainant has made out a prima facie case in respect of commission of offence by the accused under Sections 167, 465, 466, 471 read with Section 109 of the Indian Penal Code, the Magistrate was pleased to direct issuance of process in view of the order passed on 30.04.1998. 4 Accused nos.1 and 2 presented an application to the Magistrate for recalling the order of issuance of process, however, their application came to be rejected. Thereafter accused nos.1 and 2 presented Revision Application to the Court of Sessions, however, Revision Application also came to be dismissed on 25.09.2003. Accused nos.1, 2, 4 to 7 thereafter moved an application at Exhibit-123 on 04.10.2005 before Judicial Magistrate, First Class, Patoda, claiming their discharge under Section 245 (2) of the Code of Criminal Procedure. The learned Magistrate, after hearing both the parties, rejected the application on 01.03.2007. 5 Accused, being aggrieved by the order passed by Judicial Magistrate, First Class, Patoda, presented Revision Application No.35/2007, which came to be heard and disposed of by Ad hoc Additional Sessions Judge-1, Beed, who was pleased to dismiss the same by his order dated 20.02.2008. 5 6 Accused have, therefore, approached this Court by invoking writ jurisdiction under Articles 226 and 227 of the Constitution of India. 7 I have heard arguments advanced by Shri C.V.Thombre, learned Counsel for petitioners as well as Shri S.S.Thombre, learned Counsel for Respondent-original complainant. 8 It is contended by learned Counsel appearing for petitioners – original accused that on perusal of the complaint as well as alleged fabricated resolution adopted by the Village Panchayat on 02.10.1995, no offence can be said to have been made out. Learned Counsel for petitioners has invited my attention to the proceedings of meeting dated 02.10.1995. Resolution No.5 is in respect of recording names of legal heirs of deceased in the property register of residential properties situate in the village. Resolution No.5 is quite general in nature which authorises the Village Panchayat to record names of legal heirs in the Property Register maintained by Village Panchayat in respect of residential properties situate in the village. The Resolution is quite general in nature and in fact does not specifically refer to recording of mutation in the name of accused no.2 in respect of properties alleged to have been owned by complainant. On bare perusal of the Resolution, in fact, no case can be said to have been made out against accused for adopting any false or fabricated resolution so as to cause any loss to the complainant. The allegations made in the complaint are that accused no.1, along with accused nos.3 to 7, are instrumental in adopting the Resolution with a view to cause loss to the complainant. However, as stated above, the Resolution is quite general in nature and does not refer to accused no.2 or the complainant. 6 9 It is also brought to my notice that accused no.2 has lodged her claim in respect of agricultural property as well as residential properties contending that she is daughter of deceased Dhondiba. Accused, who are Sarpanch and members of Village Panchayat, cannot be said to have any concern in respect of litigation initiated by accused no.2. Copy of the decision rendered in Regular Civil Suit No.7/1999 is placed on record. It was a suit presented by Kondabai - accused no.2, against Gangubai – complainant herein and her son Baburao seeking partition and separate possession of the agricultural properties. Accused no.2 claimed her entitlement, being daughter of deceased Dhondiba. Suit presented by accused no.2 came to be decreed by the Civil Court and she was declared to be entitled to have separate share in the agricultural properties. The claim raised by accused no. 2, she being daughter of deceased Dhondiba, which was seriously controverted by the complainant, has been accepted by the Civil Court and she is held entitled to have separate share in the agricultural property. The natural corollary of this is that accused no.2 also would be entitled to claim her share in the residential properties belonging to Dhondiba. In fact, accused no.2 has raised an objection before the Special Land Acquisition Officer for disbursement of amount of compensation in favour of complainant , her son and daughter. The award passed by Special Land Acquisition Officer is in respect of acquisition of house properties bearing No. 58/1 and 58/2, situate at village Ukhanda. Considering the objection raised by accused no.2, matter being triable by the Civil Court, a Reference was made by the Special Land Acquisition Officer, which was registered as Land Acquisition Reference No.22/1998. District Judge-3, Beed, after considering evidence led by the parties, decided the Reference Application and held accused no.2 entitled to receive 1/3 rd share in the compensation amount. 7 10 Thus, on the basis of decree passed by the Civil Court, it can very well be said that accused no.2, in fact claimed her entitlement as daughter of deceased Dhondiba and after proper contest, her claim was allowed by the Civil Court while dealing with Regular Civil Suit No.7/1999, so also she was held entitled to receive 1/3 rd share in the amount of compensation by the Reference Court while deciding Land Acquisition Reference No.22/1998. 11 In these circumstances, when accused no.2 herself has claimed her entitlement to the agricultural property as well as house properties belonging to deceased Dhondiba claiming herself as daughter, by any stretch of imagination, it cannot be said that petitioners are instrumental in instigating her to lodge the claim. As stated earlier, the alleged fabricated resolution bearing No.5 adopted in the meeting of Village Panchayat is also of quite general nature and cannot be said to have been directed against the complainant. Thus, on the face of this, considering the contentions raised in the complaint, an inference is necessary to be drawn that nature of dispute raised by the complainant, which is primarily against accused no.2, is essentially of civil character. Accused no.2, in fact, has approached the Civil Court and got favourable declaration. In these set of facts, therefore, prima facie, it cannot be inferred that any offence is made out as against them. 12 Learned Counsel for the Respondent-complainant has vehemently contended that as against the decision rendered by District Judge in Land Acquisition Reference, a First Appeal was presented by complainant. A settlement is reached in the First Appeal and accused no.2 has accepted the claim of complainant and has relinquished her claim in 8 compensation amount in respect of acquired property. It is pointed out that accused no.2 has admitted that she has no relation with deceased Dhondiba and she is not claiming herself as heir of deceased Dhondiba. It has also been admitted by accused no.2 in the terms of compromise that it has been decided to file the terms of compromise in Appeal No.192/2006 presented by complainant raising challenge to the decision rendered by Civil Court in Regular Civil Suit No.7/1999. It is, thus, contended by the complainant that contentions raised by the complainant in respect of ineligibility of accused no.2 to receive the property left behind by deceased Dhondba is admitted by her. In these circumstances, the prosecution launched against office bearers of Village Panchayat, including the Sarpanch, must be proceeded and cannot be quashed. 13 The fact, however, remains that the complainant has settled the civil dispute with accused no.2. It is her contention that in order to assist accused no.2 to raise her claim in relation to the agricultural and residential properties, other accused have fabricated the record. In view of settlement of dispute, which is essentially of civil nature, with accused no.2, accused nos. 1 and 3 to 7 cannot be proceeded with in Criminal Court. 14 Apart from this aspect, alleged forged resolution bearing No.5 adopted by Village Panchayat in 1995 is of quite general character and cannot be said to have been adopted with a view to confer any rights on accused no.2. In these set of facts, therefore, prosecution initiated against accused would amount to abuse of process of Court. 15 A reference to the judgment in the case of Mahindra & Mahindra Co. Ltd. & others Vs. State of Maharashtra and another, reported in 9 2008 ALL MR (Cri) 3039, can be conveniently made. This Court, while dealing with the matter, has held that criminal prosecution may be quashed when there is material on record to infer that continuation thereof would amount to abuse of process of the Court. 16 A reference can be made to the judgment of the Apex Court in the matter of Hridaya Ranjan Prasad Verma Vs. State of Bihar, reported in 2000 (4) SCC 168, wherein the Apex Court has held that, where allegations in the complaint read as a whole did not indicate, expressly or impliedly, any intentional deception on the part of appellants right from the beginning of the transaction, continuing the criminal proceedings against the appellants would amount to an abuse of process of the Court. The exercise of powers under Section 482 of the Criminal Procedure Code, in such case, was held proper. 17 In the instant matter, jurisdiction of the writ Court under Article 227 of the Constitution of India is invoked. The powers of this Court, while exercising writ jurisdiction are coextensive and even wider than the powers vested in the Criminal Court while dealing with the application under Section 482 of the Code of Criminal Procedure. 18 A reference can be made to the judgment in the matter of Pepsi Foods Ltd. And another Vs. Special Judicial Magistrate and others, reported in (1998) 5 SCC 749, wherein the Apex Court has observed: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in 10 the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 19 For the reasons stated above, I am of the considered view that the writ petition presented by petitioners need to be allowed and same is accordingly allowed. The order passed by Judicial Magistrate, First Class, Patoda on 01.03.2007 below Exhibit-123 in Regular Criminal Case No.20/1998 confirmed by Ad hoc Additional Sessions Judge-1, Beed in Criminal Revision Application No.35/2007 decided on 20.02.2008, are quashed and set aside. The application tendered by accused claiming their discharge in Regular Criminal Case No.20/1998 pending before Judicial Magistrate, First Class, Patoda, shall be deemed to have been allowed. 20 Rule is accordingly made absolute. (R.M.BORDE) JUDGE adb/criwp58208 *******