Dismissed

Digambar Laxman Gentyal v. the State of Mah and Anr.

Bombay HC19 Jun 2013WP/1198/2012

Case brief

AI extract

What is this about?

The High Court dismissed a Criminal Writ Petition challenging an order by the Judicial Magistrate. The petition sought direction for investigation under Section 156(3) CrPC regarding alleged forged handicapped certificates. The Court held that since a police case was registered and departmental inquiries were underway, and alternative remedies under Section 202 CrPC were available, the writ petiti

What did the court decide?

Petition dismissed; no direction for investigation under Section 156(3) CrPC issued.

Digambar Laxman Gentyal Vs the State of Mah… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.1198/2012

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Digambar Laxman Gentyal .. Petitioner V/s The State of Maha. & Others .. Respondents

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Shri N.B.Narwade, Adv.for petr. Shri V.G.Shelke,APP for State.

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Shri A.P.Avhad,Adv.for R.3to29,31to46,48,56,58to65,67,70to78. Petition is dismissed as against respondent no.52. Shri M.M.Nerlikar h/f Shri S.T.Shelke,Adv.for respondents 79to82

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...

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CORAM :T.V.NALAWADE,J.

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DATE : 19TH JUNE, 2013.

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ORAL ORDER :

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The petition is filed to challenge the order made by JMFC Court No.2, Ahmednagar in RTC No.1019/12 on 19/12/12. Private complaint is filed by petitioner for offence punishable u/ss. 420, 464,468,471,202,34 etc. IPC. He has made allegations that many teachers of Zilla Parishad, Ahmednagar prepared false record of handicapped certificates for getting service benefits and this record is being used by them for getting the benefits. It is his allegation that he brought this circumstance to the notice of the officers of the Zilla Parishad like Gupta and others but they have avoided to take action against the teachers and they have joined

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hands with the teachers. It is his apprehension that they have some political support and no action will be taken against teachers and officers of Zilla Parishadd. He requested the JMFC for making investigation u/s 156(3) of Cr.P.C. He gave list of around 81 persons as accused in the complaint. After perusal of the complaint, the JMFC observed that there are allegations as against more than 75 teachers of aforesaid nature and for that he would like to examine complainant on oath before making further order. This order is challenged in the present proceeding.

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2] It was submitted for the petitioner that the Magistrate ought have made order of investigation u/s 156(3) of Cr.P.C. as it was practically impossible for the petitioner to produce the material in respect of aforesaid allegations before JMFC. There is force in this contention, however, the submissions made by learned counsel for petitioner show that subsequently, one of the officer of Zilla Parishad gave report to Kotwali police station, Ahmednagar against 76 teachers that they have prepared false record of handicapped certificates and they have used said record for getting benefits in service. On the basis of this report, crime at Cr.No.398/12 came to be registered for offences punishable u/ss. 420, 468, 471, 193, 34 of IPC. These circumstances cannot be ignored. It was submitted by the learned counsel for petitioner that the names of the officers of Zilla Parishad against whom complainant has grievance are not mentioned in FIR and one of these persons has given the report and so, he challenged the

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order of JMFC. It can be said that there is some misconception. Only because names of some persons are not mentioned in FIR, that does not mean that investigating officer is prevented to file charge sheet against the persons whose names are not mentioned in FIR if he claims that they have committed some offence. Thus, there is no force in this contention made for petitioner complainant.

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3] The learned counsel for petitioner relied on case reported in AIR 2007 S.C. 3234 [Dilawar Singh V/s State of Delhi]. In this case, Apex Xourt has discussed Sections 200, 202 and 156(3) of Cr.P.C. The Apex Court has observed that the power of investigation by police u/s 202 of Cr.P.C. is limited, if that power is compared with the power u/s 156(3) of Cr.P.C. It is observed that it is upto the Magistrate to take decision after report of police which can be submitted u/s 202 of Cr.P.C. is received. There cannot be any dispute over this proposition.

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4] Even if case of the complainant is seen and accepted as it is, it can be said that at present, complainant has 2 forums available. At one hand, crime is registered on the basis of report given by Zilla parishad and in that case, he can produce some material. In view of the order made by JMFC he can examine himself on oath before JMFC as is provided u/s 202 of Cr.P.C. and then he can request the JMFC for making order of investigation u/s 202 of Cr.P.C. Though that power is limited, investigation officer can certainly ascertain as to whether Chief Officer of Z.P. had certainly

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played some role in not taking action against the teachers for detection of crime. In that case, after receipt of the report, the Magistrate can make further orders like order of issue process against these officers. If police file charge sheet in the crime, then further steps can be taken for bringing these 2 matters together. Thus, at present, it is not desirable to interfere in the order of JMFC which is under challenge.

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5] Submissions were made for Zilla Parishad Officers by learned counsel that the higher authority of Zilla Parishad has already taken action and enquiry was started. Correspondence was made with Civil Hospital from 2 places and reports are collected to show that atleast 75 teachers had not applied to these hospitals for getting handicapped certificates and the certificates produced by them are forged. In affidavit in reply, it is mentioned that the departmental enquiry is already started against most of the teachers and some teachers are already suspended. These circumstances can be considered during investigation to ascertain the truth in respect of the allegations made by the complainant. Thus, this Court holds that at present, it is not necessary to interfere in the order made by JMFC and the Petition stands dismissed.

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[T.V.NALAWADE,J.]

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umg/

Digambar Laxman Gentyal v. the State of Mah and Anr.

Case brief

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Digambar Laxman Gentyal v. the State of Mah and Anr.

Case brief

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