IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1230 OF 1994. Chandrashekhar G. Daithankar. ..Petitioner. versus 1. The State of Maharashtra. 2. Shri N.M. Sakharkar. 3. The Chief Judicial Magistrate. 4. Shri Tikaram Shrawan Bhal. ..Respondents. .... Mr.P.K.Dhakephalkar, with Niranjan P. Shimpi, for the Petitioner. Mr.J.P.Yagnik, APP, for the Respondent-State. None for the Respondent No.2. .... CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J. DATE DATE DATE : 8th September 2008. : 8th September 2008. : 8th September 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of the learned Senior Counsel appearing for the Petitioner were heard on 20th August 2008. As the concerned APP was not present and as none appeared for the fourth Respondent, the hearing of the Writ Petition was adjourned. Today, I have heard the submissions of the learned Counsel appearing for the Petitioner and the learned APP appearing for the State. I find that name of the fourth Respondent has been already deleted as per the order dated 5th March 2008. 2. With a view to appreciate the submissions made : 2 : by the learned Counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. 3. In March 1993, the Petitioner was posted as Sub-Divisional Police Officer at Mahad, District Raigad. As a result of demolition of Babri Masjid on 6th December 1992, there were widespread riots all over the country. On 12th March 1993, there were serial bomb blasts in the City of Mumbai. According to the Petitioner, the Police learnt that illegal ammunition of RDX for the bomb blasts was smuggled in the country from Shriwardhan and Mhasala which are the coastal talukas of District Raigad and therefore, several raids were conducted and arms as well as ammunition were seized. The Petitioner was closely associated with the said investigation as he was the Sub-Divisional Police Officer at Mahad at the relevant time. According to the case of the Petitioner, the smuggled articles were brought in village Shekhade in or about February 1993 and March 1993 and the articles were sent to Mumbai by loading the same in the trucks. It was revealed that on 8th March 1993, one Sharif Abdul Gaffar @ Dadamiya had : 3 : practised use of AK-56 riffles at village Sandheri. After receiving the information, the Police visited the said village and seized hand bombs as well as empty cartridges which were used in AK-56 rifles. On 26th March 1993, in village Mendadi, from one Muzzamil Umar Kadari certain AK-56 rifles alongwith cartridges were confiscated. It is alleged that the Petitioner was closely associated with the investigation. 4. On 12th April 1993, a Police Constable attached to Shriwardhan Police Station reported that some strange objects were lying in the rivulet Walvati. Some fishermen noticed the strange objects. The said objects were seized on 12th April 1993. During the investigation, it was revealed that the villagers had witnessed a big explosion on or about January 1993 which had caused panic in the said area. An inquiry was commenced at village Walavati to ascertain the nature of the objects. Several houses in the village were searched. During the course of search, similar objects were recovered from a wooden box which was kept in the house of Iqbal Ismail Haspatel alongwith gupti, knife, etc. A panchnama was drawn on 13th April 1993 and a : 4 : copy thereof was supplied to the said Iqbal Ismail Haspatel. On 13th April 1993, the Superintendent of Police informed the villagers about recovery of projectile objects and requested the villagers to come out and state the truth. An offence was registered and accused persons including Iqbal Ismail Haspatel were produced before the learned Magistrate. According to the case of the Petitioner, at the time of arrest, it was found that on the person of the said Iqbal Ismail Haspatel, there were four injuries. When the said accused persons were produced before the learned Magistrate on 14th April 1993, a remand report was submitted requesting for police custody. Accordingly, accused were remanded in the police custody upto 28th April 1993. The statements of certain witnesses were recorded by the Police. 5. The wife of the said Iqbal Ismail Haspatel addressed a letter to the Hon’ble the Chief Justice of this Court in which she alleged that her husband and her sons have been arrested without any justification only on a suspicion. It was alleged that her husband and her sons were illegally arrested. The said letter was : 5 : treated as a suo-motu writ petition. In the said writ petition, an affidavit was filed by the Petitioner stating that the concerned accused were already released and a report under section 169 of the Code of Criminal Procedure, 1973 was forwarded to the learned Judicial Magistrate First Class. 6. On 26th April 1993, an application was made by the said Iqbal Ismail Haspatel and his son Mobin before the learned Magistrate praying that they may be sent for medical examination by a registered medical practicioner. The said application was allowed and both the accused were referred to the Government Medical Officer for medical examination. 7. In June 1993, the said Iqbal filed a private complaint against the petitioner and other police officers and police personnel alleging commission of offences under sections 395, 397, 380, 365, 368, 355, 354, 356, 357, 344, 347, 324, 326, 327, 454, 457, 506, 153-A, 504, 509, 505, read with sections 114, 34, 120-B of the Indian Penal Code. Prior to that, on 9th May 1993, the complaint in writing was submitted by the said : 6 : Iqbal Haspatel to the Hon’ble Chief Minister and the Director General of Police and the Chief Secretary of the State. 8. By order dated 26th June 1993, the learned Judicial Magistrate, First Class at Shriwardhan held that cognizance of an offences alleged in the complaint cannot be taken as there was no sanction granted under section 197 of the Code of Criminal Procedure, 1973. He dismissed the complaint. It must be stated here that the allegations in the complaint filed by the said Iqbal Haspatel were that the police personnel including the Petitioner assaulted the said Iqbal, his wife and his daughter-in-law. Serious allegations were made against the Petitioner and other accused relating to the offences committed against the said Iqbal and other members of his family. It is alleged that the remaining members of the family of said Iqbal were assaulted in a very indecent manner by the members of the police staff who were allegedly in drunken state and the modesty of the women members of the family of Iqbal Haspatel was outraged. : 7 : 9. The Judicial Magistrate First Class at Shriwardhan himself filed a complaint on 17th June 1994 alleging offences under section 147, 149, 330, 323, 341, 342, 427, 506(2), 509 of the Indian Penal Code against the petitioner and other accused who were the police officers. The allegations made in the complaint were as regards alleged action of assault and ill-treatment by the police officers to the said Iqbal Haspatel and his male and female members of the family. The said complaint was filed before the learned Chief Judicial Magistrate at Raigad and Alibag. By order dated 4th August 1994, process was issued by the learned Chief Judicial Magistrate. The challenge in this Petition is to the order dated 4th August 1994. The prayer is for quashing the said complaint which is pending before the Chief Judicial Magistrate. On 17th October 1994, rule was issued in this Petition and further proceedings were stayed. Rule was issued by the Division Bench of this Court. By order dated 25th June 2003, the Division Bench has directed that the Petition should be placed before a Single Judge. 10. In normal course, this Court would have : 8 : relegated the Petitioner to the remedy of filing revision application under section 397 of the Code of Criminal Procedure, 1973. However, as stated above, rule has been issued in the year 1994 and it will be unjust to the parties to relegate them to another remedy after lapse of about 14 years. 11. The submission of the learned Counsel appearing for the Petitioner is that the learned Magistrate who was the Complainant had dismissed a private complaint filed by the said Iqbal Ismail Haspatel on account of want of sanction under section 197 of the said Code of 1973 and the same learned Magistrate filed a complaint as aforesaid impleading the Petitioner as an accused without noticing his own order which records requirement of a sanction. The submission is that after having dismissed the private complaint filed by the said Iqbal Haspatel, the same learned Judge had no authority to file the complaint. He submitted that by detailed order, the earlier complaint was dismissed by the learned Judge himself in which the same allegations were made which are subject matter of the complaint filed by the learned Magistrate. The learned APP pointed out the : 9 : orders passed by the learned Magistrate. He submitted that appropriate orders be passed by this Court. 12. I have considered the submissions. Perusal of the complaint filed by the said Iqbal Ismail Haspatel shows that the allegations were as regards the incident of 13th April 1993 and the alleged incidents after the complainant Iqbal Haspatel and the members of the family were brought to the police station at Shriwardhan. The complaint of commission of offences in the said private complaint relates to the period during which the said Iqbal and his sons were in custody. The said complaint was dismissed by the learned Magistrate for want of sanction under section 197 of the said Code of 1973. Surprisingly, the learned Magistrate himself filed a complaint on 17th June 1994 alleging commission of offences by the Petitioner and other police officers. The allegations of commission of offences are virtually the same which were in the private complaint filed by the said Iqbal Haspatel. After having dismissed the private complaint filed by the said Iqbal Haspatel on the ground of want of sanction, it was not proper on the part of the learned Magistrate to have filed a private : 10 : complaint himself based on the instances on which reliance was placed by the said Iqbal Haspatel in his private complaint. Thus, a private complaint filed against the Petitioner on the basis of virtually the same allegations has been dismissed on the ground of want of sanction and the learned Judge who has passed that order himself filed a complaint nearly after one year alleging of commission of the same offences against the Petitioner and the others. On the said complaint, process has been issued. 13. From the order issuing process, it is apparent that the fact that earlier private complaint was dismissed by the learned Magistrate was not brought to the notice of the learned Chief Judicial Magistrate. While dismissing the earlier private complaint, the learned Magistrate observed that - " Considering the averments made in the complaint it reveals that various offence complained of by the complainant has been committed by the accused in the discharge of their official capacity. The accused are public : 11 : servant within the meaning of the section 21 of the Indian Penal Code and acts which he alleged to have been committed by them under the cloak of their official position, although those acts were not part of their duties and therefore in my opinion sanction under section 197 of the Cr.P.C. is necessary before prosecuting the accused." In view of the dismissal of the earlier complaint filed by the Iqbal Haspatel by the learned Magistrate, the learned Magistrate could not have filed a complaint himself without disclosing the earlier complaint dismissed by him. Thus, a case is made out for quashing impugned order dated 4th August 1994. Continuation of the prosecution against the Petitioner is nothing but an abuse of process of law. Hence, the complaint deserves to be quashed as against the petitioner. 14. In view of facts which are narrated above, I pass the following order :- (1) Rule is made absolute in terms of prayer : 12 : clause (b). [A.S.Oka,J.] [A.S.Oka,J.] [A.S.Oka,J.]