Dismissed

Vyankati Baliram Nilawad and Others v. the State of Maharashtra and Others

Bombay HC21 Sept 2013APPLN/4338/2013

Case brief

AI extract

What is this about?

The High Court rejected the criminal application to quash an investigation ordered by the trial court for salary withholding. The court held that investigation is necessary to ascertain sufficiency of grounds and permitted investigation without arrest if applicants make themselves available.

What did the court decide?

Application rejected; no arrest should be made without Trial Court permission provided applicants remain available for interrogation.

Vyankati Baliram Nilawad and Others Vs the State of Maharashtra… — Corruption | Bombay HC (2013)

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[1]

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appln 4338.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 4338 OF 2013

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VYANKATI BALIRAM NILAWAD AND OTHERS

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Applicants

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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Respondents

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Mr. S.S. Thombre Advocate for Applicants Mr. P. N. Muley APP for Respondents 1 & 2 Mr. A R Gaikwad and Mr. M.P.Gandle advocates for Respondent no.3

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CORAM : ABHAY M. THIPSAY, J. Dated: September 21, 2013

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ORAL ORDER :-

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Heard the learned counsel for the applicant at length. Heard the learned counsel for the respondent No.3. Heard the learned APP.

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The respondent no.3 is an employee of the Municipal Council, Beed. He has filed a complaint against the applicants who are the officers of the said Municipal Council. One of the accused is the Deputy Director of Health Services of Government of Maharashtra.

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[2] appln 4338.13.odt

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The allegations levelled in the complaint are in respect of the offences punishable under section 7 of the Prevention of Corruption Act, 166 of IPC, 323 of IPC, 504 of IPC and 506 of the IPC. After the complaint was filed, certain orders came to be passed by the Additional Sessions Judge, Beed who is also a Special Judge under the Prevention of Corruption Act. By an order dated 2.8.2013, the learned Special Judge directed the Police to investigate into the matter under the provisions of Section 202 of the Code of Criminal Procedure. Being aggrieved by the said order, the applicants have approached this Court invoking its inherent powers and praying that the proceeding pending in the Court of the learned Additional Sessions Judge/Special Judge be quashed.

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I have carefully considered all the relevant aspects of the

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matter.

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The substance of the complaint is that, the applicants are responsible for payment of salaries to the employees of the Municipal Council, including the respondent No.3. That, the applicants have not paid the salaries of the various employees in the Malaria Department since last about one year. That, the applicants are under an obligation to pay salary to the employees, but are deliberately not doing so; and that, they are deliberately not stating what are the difficulties in the payment of salary. That, the applicants have committed an offence by

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[3] appln 4338.13.odt

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not paying the salary to the respondent no.3. That, the respondent no. 3 is therefore unable to manage the expenses of his family. That, when the respondent no.3 approached the accused no.2 i.e. the applicant no. 1 herein, for demanding the salary and asking as to what was the difficulty in payment of salary, the applicant no.1 allegedly replied as to ‘from where he would give the salary’ and that ‘the respondent no.3 was free to do whatever he wanted’. That, the applicant nos.1, 2 and 5 caught hold of the respondent no.3 and drove him out of the office and also threatened to kill him. That, the applicants are demanding illegal gratification for making the payment of the salary. That, the applicants are making payment to some of the employees after accepting the illegal gratification from them.

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This is the substance of the complaint.

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In his order dated 2.8.2013, the learned Additional Sessions Judge/Special Judge observed that it would be just and proper that an investigation is made by police for enabling the learned Judge to decide whether or not there is sufficient ground for proceeding. The learned Judge postponed the issue of process and directed the police to investigate into the matter as contemplated under section 202 of the Code for the purpose of ascertaining whether there are sufficient grounds for proceeding against the accused

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appln 4338.13.odt

persons.

The substance of the contentions raised on behalf of the applicants is that, the allegations are patently absurd. The contentions advanced are to the effect that, the applicants are the officers of the Municipal Council, who are not supposed to pay the salaries of the employees from their own pocket. It is submitted that there was enough material before the Court to understand that the salaries were not being paid because the funds for the same are not being made available by the Government. It is submitted that the allegations are false and that, the applicants would be put to unnecessary harassment on account of the order passed by the learned Additional Sessions Judge/Special Judge.

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It was pointed out to the learned counsel for the applicants that, so far, the Trial Court has not decided whether or not there are sufficient grounds for proceeding against the applicants and he was called upon to address the issue as to whether, therefore, the intervention by this court at this stage would be just and proper. The learned counsel for the applicants submitted that it was so and referred to a number of authoritative pronouncements of the Supreme Court of India which lay down the circumstances in which the Superior Courts can intervene in the matter and quash criminal proceedings.

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[5] appln 4338.13.odt

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The power of the Court to interfere with the investigation in an appropriate case is not in dispute and has not been challenged even by the respondent no.3. The question is, however, whether there is a case for exercise of such power particularly when the trial Court is yet undecided as to whether or not there are sufficient grounds for proceeding against the applicants.

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It is not in dispute that the salaries of the respondent no.3 and several other employees have not been paid for a period of about one year. It is the claim of the applicants that the same is due to non availability of the funds, but according to respondent no.3, some funds had been received and misused. It is not necessary to go into these aspects of the matter but, what requires to be examined is, ‘when, admittedly, salaries have not been paid and with respect to non payment of such salaries, some serious allegations have been made against the applicants; and when the Court, therefore, has ordered investigation for the purpose of deciding whether or not there are sufficient grounds for proceeding against the applicants, should this Court intervene in the matter and stop such investigation.’ In my opinion, answer has to be in the negative. Stopping the investigation at this stage would amount to saying that the Trial Court is not entitled to gather material to see whether or not there are sufficient grounds for proceeding against the applicants.

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[6] appln 4338.13.odt

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It’s not that on a bare reading of the complaint, no offence whatsoever is disclosed. If the allegations levelled in the complaint, the substance of which is deliberate non-payment of the salary despite of availability of funds for that purpose are taken into consideration, it is not possible to say that same would not amount to any offence. As to who is responsible for any such offence - if at all any offence is disclosed - would be a matter which should be properly and satisfactorily decided after investigation is carried out.

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In my opinion, intervention by the Court at this stage - when no formal accusation has been levelled against any of the accused and when the Court has not yet decided whether they should be made to face the criminal proceedings - would be totally unjustified and uncalled for. I am, therefore, not inclined to interfere in the matter.

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At the conclusion of the arguments, the learned counsel for the applicants submitted that the applicants may be protected from any ‘coercive action’ as might be taken by the Police as a step in investigation. By ‘Coercive action’ obviously, the learned counsel is referring to ‘arrest’. In my view, this is not a case where any ‘coercive action’ would need to be taken by the police and what is necessary is the availability of the applicants for the purpose of investigation or

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[7] appln 4338.13.odt

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interrogation. If, the applicants remain present before the police or otherwise make themselves available for investigation or interrogation, it would not be necessary to subject them to arrest, particularly because no decision that there exists a case for proceeding against them has been taken by the Trial Court, as yet. Obviously, therefore, no arrest shall be made by the Investigating Agency without an express permission or direction of the Trial Court in the matter. The Trial Court can be trusted for ensuring that the applicants are not put to any undue and unnecessary hardship, or are ridiculed in society.

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Needless to say that all the legal remedies - including the remedy of approaching this Court by invoking its inherent powers/ Constitutional jurisdiction if the situation should so require would be available to the applicants in case the Trial Court decides to proceed against them, and in case, the applicants feel aggrieved by such a decision.

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Subject to what has been said above, the application is rejected.

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( ABHAY M. THIPSAY, J. )

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aaa/-

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Vyankati Baliram Nilawad and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Vyankati Baliram Nilawad and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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