Allowed

Anil Diggikar and Another v. Balaji Ramrao Kamble and Another

Bombay HC23 Dec 2014APPLN/1595/2014

Case brief

AI extract

What is this about?

In a Criminal Appeal, the High Court of Bombay Bench at Aurangabad quashed criminal proceedings against government officers for offences under the IPC. The court held the case arose from a civil contractual dispute, lacked police complaint recording injury, and the Magistrate failed to apply his mind before issuing process.

What did the court decide?

Proceedings of Case No. S.C.C. No.245 of 2008 initiated by the complainant against the applicants are quashed and set aside.

Anil Diggikar and Another Vs Balaji Ramrao Kamble and Another — Quashing and FIR | Bombay HC (2014)

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(1) Cri.Ap. No.1595.14

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.1595 OF 2014

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1.	Anil Diggikar, Age: 48 years, Occu: Service as Vice Chairman & Managing Director for Corporate Vision, Financing & Project, Maharashtra State Road Development Corporation Ltd., Mumbai
2.	Sunil s/o Purushottam Maybhate, Age: 50 years, Occ. Service, R/o Pune
3.	Chandrashekhar s/o Mahadeo Deshpande, Age: 48 years, Occ. Service as Project Executive, Maharashtra Energy Development Agency (MEDA), Pune ….APPLICANTS
	VERSUS
1.	Balaji s/o Ramrao Kamble, Age: 54 years, Occ. Agri., R/o Kerwadi, Tq. Palam, District Parbhani
2.	The State of Maharashtra ….RESPONDENTS (No. 1 Orig. Complainant)
	Mr. Sachin S. Deshmukh, Advocate for applicants; Mr. M. D. Gitte, Advocate for respondent No. 1; Mr. V. D. Godbharle, Addl. Public Prosecutor for respondent No. 2.

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CORAM : S.S. SHINDE AND N.W. SAMBRE, JJ. Date of reserving the order : 17^th November, 2014

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Cri.Ap. No.1595.14

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(2)

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Date of pronouncing the order : 23^rd December, 2014)

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JUDGMENT (PER N.W. SAMBRE,. J.)

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Rule. Rule is made returnable forthwith and by consent, the matter is heard finally.

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By the instant Criminal Application under section 482 of the Code of Criminal Procedure, the applicants/accused seek quashing of proceedings of S.C.C. No.245 of 2008, pending on the file of Judicial Magistrate First Class, Palam, District Parbhani, for offences punishable under sections 323, 504, 506 read with sec. 34 of the Indian Penal Code.

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3. Facts of the case, in a nutshell, are as under :-

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A statutory Corporation of the State Government, namely, Maharashtra Energy Development Agency ( hereinafter referred to as the “MEDA”, for the sake of brevity) was formed with an intention to canvass the cause of conservation of energy. Among the various activities undertaken by the MEDA, one of the activities was of installation of chulhas in various villages and as such entered into business with respondent no.1 (hereinafter referred to as the “complainant”, for the sake of brevity) for supply of Laxmi and Bhagyalaxmi chulhas. It appears that

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(3) Cri.Ap. No.1595.14

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the work of installation of chulhas was entrusted to the complainant and it was agreed that the installation charges at the rate of Rs.50/- per chulah will be paid to him.

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It is further alleged that the complainant raised a dispute before the Labour Officer, in respect of the payments which were due from MEDA, for installation of chulhas at village Chatori. It was pointed out in the said dispute that the payment of installation of 35 chulhas was made to the complainant, however, the complainant since failed to comply with the necessary requirements, payment was not made to him and it was agreed that upon completion of the requirement qua installation of Laxmi Chulhas in Chatori village, appropriate proposal shall be forwarded to MEDA.

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It appears that the said settlement was signed by the Government Labour Officer, Parbhani; the Project Officer of the MEDA from Pune and the Project Officer from Nanded so also the complainant.

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It appears that in 2003, after the above referred settlement, the MEDA made payment of Rs.5,000/- to the complainant towards installation of 100 chulhas at village Chatori.

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Thereafter, the complainant, claiming to be the Police Patil of village

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(4) Cri.Ap. No.1595.14

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Kerwadi, Taluka Palam, District Parbhani, filed Complaint Case being S.C.C. No. 217 of 2005 before the Judicial Magistrate First Class, Gangakhed, which was subsequently registered as Case No.245 of 2008.

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Learned Judicial Magistrate First Class, Gangakhed, on 5^th April, 2005, after registering the complaint and recording the verification, has called report from the police station under section 202 of the Code of Criminal Procedure.

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It is alleged by the complainant in the said complaint that the accused to the said complaint, namely, the applicants herein, are working as Project Director, General Manager and Project Officer, respectively, with the State Government statutory Corporation MEDA. According to the complainant, since the year 2000 the accused persons have not paid his relevant dues towards installation of 100 chulhas, which has resulted into taking out proceedings before the Labour Officer.

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It is further alleged in the said complaint that on 20^th May, 2005, at about 10.00 a.m., the accused persons visited the house of the complainant and threatened him as he was causing problems to them. It is also alleged in the said complaint that accused nos.2 and 3 have assaulted the complainant and further threatened him not to file any complaint against them. As such, according to him, the applicants herein

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(5) Cri.Ap. No.1595.14

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have committed offences punishable under sections 323, 504 and 506 of the Indian Penal Code.

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As narrated herein above, the Magistrate has called out report under section 202 of the Code of Criminal Procedure by his order dated 5^th April, 2005. Subsequently, by an order dated 31^st March, 2006, the Magistrate has recorded that there is a prima facie case made out under section 323 of the Indian Penal Code, hence process against the accused be issued.

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It is further apparent that on 28^th May, the Magistrate has passed following order :-

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“The complainant has not taken any step to secure the presence of accused No.1 and also not paid the PF on 21.2.2011. Hence keep the matter for order.”

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The Magistrate again passed an order on 16^th September, 2009, which reads thus :-

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“The complainant has not taken any steps to procure the presence of Accused No.1 since 21.2.2011. Further it reveals that the complainant did not want to proceed against him. Hence due to want of prosecution and non-payment of P.F., the complaint is

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(6) Cri.Ap. No.1595.14

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dismissed against accused no.1 and he is discharged under section 323 I.P.C. “

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It appears that subsequently application Exh.67 came to be moved by the complainant before the Magistrate, that there is no provision for discharge in a summary case and as such, prayed for setting aside order of discharge of accused no.1 and for issuance of non-bailable warrant. On 23^rd October, 2013, the Magistrate has passed the order re-calling the order of discharge against accused no.1 and further directed issuance of non-bailable warrant against accused no.1.

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The above referred developments have prompted the applicants herein to file the instant Criminal Application for quashing of the proceedings.

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The applicants, claiming to be class-I (Gazetted) Officers of the State Government, submit that the very proceedings in the form of complaint case are not tenable against them for want of appropriate sanction from the Government. It is further alleged by the applicants that the least that was expected of the complainant was to approach the police against the alleged incident as is narrated in the complaint, which according to him took place on 20^th March, 2005. However, the complainant has straightway proceeded to file a complaint case, which according to the applicants, is contrary to the law laid down by the Full

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Bench of this Court in the case of Sandeep Rammilan Shukla vs. State of Mah. & ors ., reported in 2009 (1) Mh.L.J. 97 . The applicants/accused further invited attention of this Court to the order dated 31^st March, 2006 wherein the Court below has ordered issuance of process against them as prima facie case is made out for an offence punishable under section 323 of the Indian Penal Code. According to them, but for few words here and there, the said order neither discloses any reasons nor application of mind by the Magistrate. In addition to above, the applicants submit that the proceedings in the form of complaint case are initiated by the complainant purely with an intention to twist the arms of the applicants herein so as to recover the amount. The applicants submit that the dispute, if any, between them and the complainant is arising out of contractual obligation which is civil in nature and there is no scope for any criminal motive to be attributed to the applicants in the manner alleged herein. According to the applicants, the allegations made in the complaint about the incident alleged to have taken place on 20^th March, 2005 are imaginary and far away from truth. The applicants submit that in the above referred background, the proceedings initiated against them deserve to be quashed and set aside.

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Learned Counsel for the complainant has invited attention of this Court to the fact about the conduct of the applicants herein in not making the payment of installation charges of chulhas. He further submits that the

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(8) Cri.Ap. No.1595.14

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Magistrate, having regard to the verification and the report submitted by the police officer under section 202 of the Code of Criminal Procedure, so also statements of two eye-witnesses, namely Dinkar Nivrutti Jadhav and Taterao Kashinath Dabade, has rightly reached to the conclusion of making out prima facie case against the applicants herein for an offence punishable under section 323 of the Indian Penal Code. He further submits that the cognizance taken by the Magistrate is based upon the substantial material and does not call for any interference at this stage, at the behest of this Court and, therefore, prayed for dismissal of the instant Application.

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Having gone through the pleadings, documentary evidence and arguments of the parties, following admitted facts are required to be taken note of.

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The applicants herein, particularly applicant no.1 is an I.A.S. Officer, working with the State Government and applicants no.2 and 3 are class-I Officers, who are working in the capacity of Project Officer and Project Executive. It is not in dispute that the complainant has carried out installation work for the MEDA, for which according to him, there are certain dues outstanding and the minutes recorded on 21^st November, 2001 by the Labour Officer, Parbhani, are admitted by both the parties. There is also no dispute as regards payment of Rs.5,000/- to the

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(9) Cri.Ap. No.1595.14

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complainant by way of the crossed cheque, with a covering letter dated 20^th March, 2003.

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In the wake of above facts, it is apparent that there exists a contractual dispute in between the complainant and the MEDA as regards the payment claimed by the complainant and to be paid by the MEDA to the complainant. It further appears that though the complainant claim that the alleged incident of assault took place on 20^th March, 2005, he has neither filed any complaint with the police nor examined himself from the Medical Officer so as to certify that he has suffered any injury. It is alleged by the complainant that he went to the police station to lodge the complaint and police returned his complaint by giving him an understanding that the offence is non-cognizable one and it is open for him to go to the Court of Law, however, no such evidence is brought on record. The least that was expected of the complainant was to bring on record, the evidence that he had filed the complaint to the police along with the medical certificate qua the injuries suffered by him. It is also required to be taken note of the fact that the learned Magistrate, by an order dated 31^st March, 2006, had ordered issuance of process, which order was reversed on 23^rd October, 2013 against accused no.1, contrary to the provisions of section 362 of the Code of Criminal Procedure, which puts an embargo as regards power of Trial Court to review its orders in Criminal jurisdiction. The above referred approach on the part of the

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(10) Cri.Ap. No.1595.14

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complainant and that of the Trial Court, is contrary to the law laid down by this Court in the case of State of Maharashtra vs. Shashikant Eknath Shinde , reported in 2013 ALL MR (Cri) 3060 . It will not be out of place to mention here that the said view is already approved by the Apex Court. This Court, while dealing with the eventuality like the one raised in the instant proceedings, i.e. passing of an order by the Magistrate without application of mind is required to be held to be an order without jurisdiction and as such the same deserves to be quashed and set aside. This Court was alive to the fact as regards the law laid down by the Apex Court, in the matter of Pepsi Foods Ltd. & anr. vs. Special Judicial Magistrate & ors ., reported in (1998) 5 SCC 749. In the said case, the Apex Court has observed that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The observations of the Apex Court in the judgment rendered in the case of Pepsi Foods Ltd. & anr (cited supra), relied upon in the above referred judgment in the case of State of Mah. vs. Shashikant Eknath Shinde (cited supra), are worth re-referring to :-

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“29. The Apex Court in the said case has referred to its earlier observations made in the case of Pepsi Foods Ltd. And another vs. Special Judicial Magistrate and others, reported in (1998) 5 SCC 749, which reads thus :-

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Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of

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(11) Cri.Ap. No.1595.14

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course. it is not that the complainant has to bring only two witnesses to support his allegations in 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. 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 .”

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Least that was expected of the learned Magistrate was to apply his mind qua whether a case is made out by the complainant for exercising jurisdiction under section 156 (3) of the Code of Criminal Procedure. The Magistrate must look into the disclosure of offence and should be alive to the fact that every complaint filed under section 200 of the Code of Criminal Procedure is referred to the police under section 156 (3). If the Magistrate, without application of mind as to disclosure of an offence, orders issuance of process, there is every likelihood of unscrupulous complainants in order to harass the alleged accused named by them in their complaints, making bald allegations, just to see that the accused are

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(12) Cri.Ap. No.1595.14

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harassed by the police, who have no other option but to investigate as ordered by the Magistrate. Hence, it is obligatory for the Magistrate to apply his mind to the allegations made in the complaint and only in case if a complaint discloses an offence, Magistrate gets jurisdiction to order investigation, in case if police have not taken any cognizance of the offence. The observations of this Court in the judgment in the case of State of Mah. vs. Shashikant Eknath Shinde (cited supra), in paragraphs 34 and 35 are worth referring to :-

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“ 34. It can, thus, be clearly seen that the questions that fell for consideration before the Full Bench were; as to whether in the absence of a complaint to the police, a complaint can be made directly before the Magistrate and as to whether without filing of the complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable. It can, therefore, be seen that the question whether the learned Magistrate is required to apply his mind before passing an order under section 156(3) and required to give reasons did not fall for consideration. In any case, when the Apex Court in the case of Maksud Saiyed has held that while exercising jurisdiction under Section 156(3) of Cr.P.C., the Magistrate is required to apply his mind, it will have to be held that when the order is passed by the Magistrate without considering the material and without finding out as to whether the complaint discloses ingredients of the offence or not, the order is without jurisdiction. In this respect, we may gainfully refer to the observations of Division Bench of Karnataka High Court in the case of Guruduth Prabhu (supra), which reads thus:-

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(13)

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Cri.Ap. No.1595.14

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“If every complaint filed, under Section 200, Cr.P.C. is referred to the police under section 156(3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complaints in order to harass the alleged accused named by them in their complaints making bald allegations just to see that the alleged accused are harassed by the police who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police if he does not take cognizance of the offence . In the present case, the learned Magistrate without applying his mind has blindly ordered the investigation under Section 156(3) and the said order is, therefore, without jurisdiction.

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We are in respectful agreement with the view taken by the Karnataka High Court.

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(emphasis supplied)

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35. It will, thus, have to be held that it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and only when the allegations made in the complaint make out the ingredients to constitute an offence, the learned Magistrate can pass an order of investigation under Section 156(3) of Cr.P.C.., Equally, when the ingredients to constitute the offence are not made out in the complaint, the learned Magistrate cannot direct investigation under Section 156(3) of Cr.P.C.. Such an order is without jurisdiction. If the contention of the learned counsel for respondent complainant that once the complaint is filed under Section 156(3) of Cr.P.C., the learned Magistrate has no option but to pass an order under Section 156(3) of Cr.P.C., is accepted, it would amount to reducing the

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learned Magistrate to nothing else but the postman. As such, we have no other option but to rejected the said contention .”

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No doubt, each case has to be considered on the facts of that case as no hard and fast rule can be laid down qua exercising powers under section 156 (3) of the Code of Criminal Procedure. However, the learned Magistrate should also be alive to the fact that various cases wherein private civil disputes arising out of property, monetary matters, disputes between the members and office bearers of co-operative societies, etc. are sought to be pursued by taking recourse to the criminal complaints. The observations made by this Court in the judgment in the case of State of Mah. vs. Shashikant Eknath Shinde (cited supra), in paragraph 46 are worth referring :-

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“ 46. It may not be out of place to mention that day in and day out we come across various cases wherein the provisions of the Atrocities Act are misused. We find that various complaints are filed immediately after the Gram Panchayat Elections, alleging offences under the Atrocities Act. We have no hesitation in saying that in many of the instances, it was found that the complaints were filed only to settle score with their opponents, after defeat in the Gram Panchayat elections. We have also come across various cases wherein private civil disputes arising out of property, monetary matters, disputes between the members and office bearers of cooperative societies; disputes between the trustees of the Charitable Trusts are given penal and complaints are being filed either under Section 190 read with Section 200 or under Section 156(3) of Cr.P.C.. In many of such cases, we have come across that the learned Magistrates are passing

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Cri.Ap. No.1595.14

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mechanical orders directing investigation under Section 156(3) of Cr.P.C., without recording any reasons and without verifying as to whether the complaint discloses the ingredients to constitute the offence or not. It is needless to say that least that is expected of the learned Magistrate before passing the order under Section 156(3) of Cr.P.C., is to satisfy himself, that taking the allegations to be true in entirety, as to whether the ingredients to constitute the offence alleged have been made out or not. The least that is expected of the learned Magistrate while passing an order, directing investigation is to at least give some reasons, as to why he finds substance in the complaint and as to how the complaint discloses ingredients to constitute the offence alleged. The learned Magistrates ought to take into consideration, that passing such mechanical orders in complaints which do not have any criminal element causes great hardships, humiliation, inconvenience and harassment to the citizens. For no reasons, the reputation of the citizens is put to stake as immediately after said orders are passed, innocent citizens are termed as accused.”

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It is also noticed that learned Magistrate, without recording satisfaction/reasons, in mechanical manner has proceeded to issue process against the applicants/accused for offence punishable under section 323 of the Indian Penal Code.

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Prima facie, it is also noticed that though the Magistrate has rightly or wrongly proceeded to discharge accused no.1, however, in absence of power to review, has reviewed his own order and has issued non-bailable warrant against accused no.1. The above referred act on the part of learned Magistrate, without giving opportunity to the accused persons, in

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(16) Cri.Ap. No.1595.14

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our opinion, prima facie calls for interference.

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It is also required to be taken note of the fact that as discussed herein above, having regard to the contractual relation alleged by complainant between the complainant and MEDA of which present applicants are officers, in our opinion, in the background of existence of civil dispute, initiation of present complaint by respondent no.1 is nothing but misuse of the procedure of law for satisfying personal interest. The Magistrate also perhaps lost sight of the fact as regards the civil dispute between MEDA, its officials and complainant. In this background, in our opinion, proceedings in question initiated by respondent no.1, having regard to the law discussed herein above, are not sustainable. Hence, we are inclined to pass the following order :-

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The proceedings, being Case No. S.C.C. No.245 of 2008, initiated by the complainant/respondent no.2 against the applicants herein and pending on the file of Judicial Magistrate First Class, Palam, District Parbhani, are hereby quashed and set aside.

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Criminal Application stands allowed.

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Rule is made absolute in above terms with no order as to costs.

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(N.W. SAMBRE, J.)

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(S.S. SHINDE, J.)

Anil Diggikar and Another v. Balaji Ramrao Kamble and Another

Case brief

What is this about?

What did the court decide?

Anil Diggikar and Another v. Balaji Ramrao Kamble and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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