Allowed

Vijay Gulabrao Patil and Others v. the State of Maharashtra and Another

Bombay HC25 Oct 2018WP/558/2014

Case brief

AI extract

What is this about?

The High Court quashed two FIRs and orders directing investigation under Section 156(3) CrPC filed by dismissed committee members alleging election fraud. The Court held that apparent suppression of facts, delayed filing, and pending related civil proceedings warranted exercising inherent powers under Section 482 CrPC.

What did the court decide?

Both Criminal Writ Petitions allowed; FIRs in CR Nos. 36 and 31 of 2014 quashed; orders directing investigation under Section 156(3) CrPC set aside; Rules made absolute.

Vijay Gulabrao Patil and Others Vs the… — Constitutional and Fundamental Rights | Bombay HC (2018)

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1 CrWP 662-2014 558-2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 662 OF 2014

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1] Vijay Gulabrao Patil,

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 Age : 52 years, Occu. : Agri.

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2] Sahebrao Nimba Patil,
 Age : 55 years, Occu. : Agri.,

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3] Sau. Chitrabai Vijay Patil,
 Age : 45 years,

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 Occu. : Household,

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4] Sau. Mandakini Rajendra Patil,
 Age : 36 years, Occu. Household,

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5] Rajendra Gulabrao Patil,
 Age : 51 years, Occu. Service,

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6] Vishwas Dholu Suryawanshi, Age : 64 years, Occu. : Agri.,

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7] Avchit Girdhar More,
 Age : 70 years, Ocu. : Agri.,
8] Shivaji Manga Patil,
 Age : 72 years, Occu. : Agri.,

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9] Rushikesh Vijay Patil,
 Age : 22 years, Occu. : Service,
10] Vilas Kashinath Patil,
 Age : 54 years, Occu. : Agri,
11] Gangaram Baliram Patil,
 Age : 72 years, Occu. : Agri.,
12] Gulab Barku Patil,
 Age : 65 years, Occu. : Agri.,
13] Idarchand Damu Sonwane,
 Age : 45 years, Occu. : Service,
14] Dhanraj Bhaurao Bhil,

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2 CrWP 662-2014 558-2014 Age : 65 years, Occu. : Agri., 15] Vasant Bhatu Baisane, Age : 65 years, Occu. : Retired, 16] Ajay Shivaji Patil, Age : 50 years, Occu. : Service, 17] Sau. Ushabai Narayan Patil, Age : 60 years, Occu. : Household, All R/o Mohadi (Pra. Dangari), Tq. & Dist. Dhule. ...Petitioners Versus 1] The State of Maharashtra, 2] The Investigating Officer, Songir Police Station, Dhule, Tq. & Dist. Dhule. 3] Tukaram Namdeo Patil, Age : 64 years, Occu. : Agri., R/o Mohadi (Pra. Dangari), Tq. & Dist. Dhule ...Respondents ....... Mr. R. N. Dhorde Sr. Counsel I/b Mr. V. R. Dhorde, Advocate for Petitioners. Mr. R. V. Dasalkar, A. P. P. for Respondent Nos. 1 & 2. Mr. S. P. Shah, Advocate for Respondent No. 3. .......

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WITH

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CRIMINAL WRIT PETITION NO. 558 OF 2014

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1] Vijay Gulabrao Patil,

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 Age : 52 years, Occu. : Agri.

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3 CrWP 662-2014 558-2014

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2] Sahebrao Nimba Patil,
 Age : 55 years, Occu. : Agri.,
3] Sau. Chitrabai Vijay Patil,
 Age : 45 years,
 Occu. : Household,
4] Sau. Mandakini Rajendra Patil,
 Age : 36 years, Occu. Household,
5] Rajendra Gulabrao Patil,
 Age : 47 years, Occu. Service,
6] Shivaji Manga Patil,
 Age : 72 years, Occu. : Agri.,
7] Avchit Girdhar More,
 Age : 70 years, Occu. : Agri.,
8] Gangaram Baliram Patil,
 Age : 72 years, Occu. : Agri.,
9] Gulabrao Barku Patil,
 Age : 65 years, Occu. : Agri.,
10] Rushikesh Vijay Patil,
 Age : 22 years, Occu. : Service,
11] Pravin Shivaji Patil,
 Age : 45 years, Occu. : Service,
12] Nachiketh Rajendra Patil,
 Age : 18 years, Occu. : Nil,
13] Sharad Fakira Patil,
 Age : 48 years, Occu. : Agri.,
14] Vilas Kashinath Patil,
 Age : 54 years, Occu. : Agri.,
15] Suresh Suklal Dhangar,
 Age : 38 years, Occu. : Agri.,
16] Dhanraj Bhaurao Bhil,
 Age : 65 years, Occu. : Agri.,
17] Idarchand Damu Sonwane,

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4 CrWP 662-2014 558-2014

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 Age : 45 years, Occu. : Service,
18] Vasant Bhatu Baisane,
 Age : 65 years, Occu. : Retired,
19] Ajay Shivaji Patil,
 Age : 50 years, Occu. : Service,
20] Punju Onkar Patil,
 Age : 58 years, Occu. : Agri.,
21] Sau. Alkabai Ajay Patil,
 Age : 48 years, Occu. : Household,
22] Vilas Devaji Patil,
 Age : 38 years, Occu. : Agri.,
23] Bhikan Fakira Patil,
 Age : 55 years, Occu. : Agri.,
24] Shashikant Vijay Patil,
 Age : 25 years, Occu. : Business,
25] Shailendra Dashrath Patil,
 Age : 40 years, Occu. : Agri.,
 All R/o Mohadi (Pra. Dangari),
 Tq. & Dist. Dhule. ...Petitioners
 Versus
1] The State of Maharashtra,
2] The Investigating Officer,
 Songir Police Station, Dhule,
 Tq. & Dist. Dhule.
3] Vijas Hukumchand Gujar,
 Age : 48 years, Occu. : Agri.,
 R/o Mohadi (Pra. Dangari),
 Tq. & Dist. Dhule. ...Respondents

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5 CrWP 662-2014 558-2014

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.......

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Mr. R. N. Dhorde Sr. Counsel I/b Mr. V. R. Dhorde,
Advocate for Petitioners.

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Mr. R. V. Dasalkar, A. P. P. for Respondent Nos. 1 & 2.
Mr. D. B. Thoke, Advocate for Respondent No. 3.

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.......

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CORAM: T. V. NALAWADE &

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SMT. VIBHA KANKANWADI, JJ.
DATE : 25-10-2018.

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COMMON JUDGMENT : (Per Smt. Vibha Kankanwadi, J)

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01.Both these petitions have been filed invoking
the powers of this Court under articles 14 and 226 of
Constitution of India as well as for invoking inherent
powers of this Court under Section 482 of Cr. P. C.
Criminal Writ Petition No. 662 of 2014 has been filed for

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quashing and setting aside the order dated 22.4.2014
passed by 9th J. M. F. C., Dhule, Dist. Dhule in Criminal
Misc. Application No. 362 of 2014 under Section 156(3) of
the Code of Criminal Procedure and the F. I. R. based on
that order, bearing C. R. No. 36 of 2014 registered with
Songir Police Station, Dhule on 30.4.2014. Writ Petition
No. 558 of 2014 has been filed to challenge the order
dated 17.4.2014 passed by learned 4th J. M. F. C., Dhule,
Dist. Dhule in Criminal Misc. Application No. 274 of 2014

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6 CrWP 662-2014 558-2014

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under Section 156(3) of the Code of Criminal Procedure and
the F. I. R. bearing C. R. No. 31 of 2014 registered with
Songir Police Station. The dispute between parties and
points raised by them are same in both the cases, hence,
proposed to be disposed by this common judgment.

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02.Rule. Rule made returnable forthwith. By

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consent, heard finally.

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03.Petitioners contend that one educational

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institution/ trust by name Shikshan Prasarak Mandal,
Mohadi was established on 8.6.1961. The said institution
runs various schools, junior college at Mohadi. Elections

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were held between 1996 to 2001 and change report No. 132
of 1996 was accepted. However, the change report No. 155
of 1996 filed by respondent No. 3 came to be rejected.

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The order of the Assistant Charity Commissioner was
challenged before Joint Charity Commissioner by the group
of respondent No. 3 and appeal came to be dismissed. It
was further challenged before District Court and that
application also came to be dismissed. As per the change
report which was accepted, the applicant No. 1 is the
elected President. The elections for the term 2001 to

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2006 were held on 8.4.2001 and the change report No. 264
of 2001 came to be filed. The said elections were held as
per the old constitution. That change report was also

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7 CrWP 662-2014 558-2014

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allowed by the Assistant Charity Commissioner, Dhule on
4.12.2002. Vijay Gujar and others challenged the said
Order in Appeal No. 4 of 2003. The said appeal came to be
dismissed by Joint Charity Commissioner on 12.9.2003. The
Civil Misc. Application No. 97 of 2003 was preferred by
the said group before District Court, Dhule and the said
application also came to be dismissed on 12.10.2009.
Thus, the change report No. 264 of 2001 was also approved.
The Managing Committee which came in power after the said
election prepared new constitution and therefore, held a
general body meeting. Accordingly, agenda dated 27.4.2001

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was issued to all the members. In the general body
meeting out of 446 members, about 125 members were
present. The resolution was passed to adopt new
constitution. According to the new constitution, the
earlier members were required to make fresh application
for membership within a period of 3 months from 12.8.2001.

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Thereafter, again general body meeting was called on
16.9.2001 by taking a decision on 31.8.2001. The agenda
was issued and at that time 114 members were present.
Subject Nos. 2 and 3 were confirmed in the said meeting.
After payment of enhanced membership fees, the members

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were admitted to the institution. However, those who had
not paid the membership fees lost their right to become

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8 CrWP 662-2014 558-2014

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the member of the trust. After the new constitution,
change report No. 483 of 2001 was allowed by the Assistant
Charity Commissioner, Dhule on 7.2.2006. The said order
was challenged by respondent No. 3 by filing Appeal No. 40
of 2006. The issue of amended constitution was considered
by the learned Joint Charity Commissioner, Aurangabad and
by order dated 4.7.2007 the appeal was allowed rejecting
the change report. The present applicant No. 1 and one
Rajendra Gulabrao Patil preferred Misc. Civil Application
No. 50 of 2007 challenging the order of learned Joint
Charity Commissioner, Aurangabad to District Court Dhule
in Misc. Civil Application No. 50 of 2007. The learned
District Judge-2, Dhule rejected the said application.
Second appeal was preferred to this Court bearing No. 757
of 2005. It came to be allowed on 2.2.2010 observing that
Assistant Charity Commissioner had no power to decide the
amendment of the constitution under Section 22 of the
Bombay Public Trust Act. Therefore, orders passed by the
Assistant Charity Commissioner as well as Joint Charity
Commissioner and the District Court were held to be
improper and it was directed that they should approach the
appropriate forum. Some petitioners approached Assistant
Charity Commissioner under Section 50A of the Maharashtra
Public Trust Act, 1958 and therefore, the said issue

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9 CrWP 662-2014 558-2014

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regarding amendment of constitution is pending before the
said forum. In the meantime, elections were held in 2006

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by the earlier managing committee. Respondent No. 3 had

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filed nomination form for contesting the elections. He
got elected. Change Report No. 596 of 2006 was filed
before learned Assistant Charity Commissioner. However,

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from managing committee change report No. 810 of 2006 was
filed. Both the change reports were decided on 20.9.2013

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by allowing the same. Respondent No. 3 had not raised any
objection to the change reports and from 3.7.2006 till
20.9.2013. One Vijay Hukumchand Gujar filed two appeals

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before Joint Charity Commissioner bearing Appeal No. 19 of
2013 and 20 of 2013 challenging both the change reports.
The interim relief was granted. When the interim relief
was granted, it was challenged before this Court in Writ
Petition No. 896 of 2014. The Writ Petition was
dismissed. Without disclosing the said fact, said Vijay
Gujar filed 2 separate Writ Petition Nos. 2337 of 2014 and
2338 of 2014 challenging the orders dated 20.9.2013
regarding interim relief. Both the writ petitions were

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later on withdrawn. The elections were held in the year
2011 and the change reports bearing No. 835 of 2013 and

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894 of 2013 were filed. Respondent No. 3 was not
continued in the Managing Committee. Therefore, he felt

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10 CrWP 662-2014 558-2014

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aggrieved and he joined hands of Vijay Gujar. Complaint
was filed before the learned J. M. F. C. stating that the
writ petitioners have committed offence and it was prayed
that investigation should be directed under Section 156(3)
of Cr. P. C. The said prayer was allowed and on the basis
of the said order F. I. R. has been lodged.

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04.It has been alleged in the complaint that the
elections held in the year 2006 were not proper and the
record for the election was fabricated and bogus. It was
stated that many documents have been forged and therefore,
in all 17 accused persons have committed offence
punishable under Sections 120B, 406, 409, 420, 467, 468,
471 read with Section 34 of I. P. C. The petitioners
contend that there was total suppression of fact by the
informant that various orders have been maintained before
the proper forum. Respondent No. 2 in fact had not
challenged the change report No. 596 of 2006 and 810 of
2006. When respondent No. 3 was not continued in the
Managing Committee, in order to take revenge the complaint
has been filed. The learned Magistrate has not taken into
consideration all these facts before issuing the order
under Section 156(3) of Cr. P. C. They have therefore,

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prayed for quashment of the F. I. R.s. It will not be out
of place to mention here that Vijay Gujar is the informant

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11 CrWP 662-2014 558-2014

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in C. R. No. 31 of 2014 that is the respondent No. 3.
However, he has also raised almost similar grounds as
raised by the respondent in Criminal WP No. 662 of 2014.

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05. Affidavit-in-reply have been filed by respondent
No. 3 in both the cases and they have relied on certain
documents. The contents of their affidavit-in-reply is
nothing but the repetition of the facts, hence, not
reproduced.

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06. Heard learned Senior Counsel Mr. R. N. Dhorde
I/b Mr. V. R. Dhorde, Advocate for petitioners in both the
petitions, learned A. P. P. Mr. R. V. Dasalkar and learned
Advocate Mr. Subodh P. Shah for respondent No. 3 in
Criminal Writ Petition No. 662 of 2014 and learned
Advocate Mr. D. B. Thoke for respondent No. 3 in Criminal
Writ Petition No. 558 of 2014. All the learned Advocates
have taken us through various orders those have been
passed by Assistant Charity Commissioner, Joint Charity
Commissioner and learned District Judge whenever those
change reports have been challenged. In the nutshell, the
result is reproduced in the contention of the petitioners.

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07. In their respective complaints the original
informants have tried to contend that there are about 568
members of the trust and out of them 465 are alive and

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12 CrWP 662-2014 558-2014

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therefore, as per the constitution all those members ought
to have been informed about the election as well as notice
ought to have been given to them. It is stated that in
order to keep all others away from the process, false
proceeding book was prepared in respect of affairs those
had taken place on 10.4.2011 and 5.6.2011. It was falsely
shown that an Election Officer has been appointed. False
voters list was prepared. Accused No. 12 was not even
major, yet, he was shown as member and therefore, all of
them have committed offence by conspiring with each other.

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08. It appears that the matter pertains to two
groups in a trust. The change report filed earlier i.e.
No. 132 of 1996 came to be allowed on 30.3.2001. It became
final, though, the another change report was also filed,
it was rejected. It is a fact on record that a new
constitution was adopted by the Managing Committee in 2001
and thereafter, when the elections were held the
respondent No. 3 in Criminal W. P. No. 662 of 2014 took
part in the election and he enjoyed the post after winning
the election. Now, he can not challenge those
proceedings. Now he is coming with a case that the
nomination papers do not bear his signature. However,
prima facie it appears that he had enjoyed the post.
Further, as regards the respondent No. 3 in Writ Petition

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13 CrWP 662-2014 558-2014

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No. 558 of 2014 is concerned, his attempt to challenge the
elections after adopting the new constitution before this
Court was rejected and then when he again tried to
challenge the same, he has withdrawn those writ petitions.
The subsequent fact is also required to be considered that
change report No. 73 of 2015 was filed on 8.10.2013 with
condonation of delay came to be decided by learned
Assistant Charity Commissioner, Dhule on 18.3.2016 and it
has been rejected. However, in the present position, we
are required to consider what was the position on the date
of complaint and what is alleged in the complaint. It was

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in respect of the election that took place in the year
2006. There is definitely apparent suppression of fact by
the respondent No. 3 in Criminal Writ Petition No. 662 of
2014. It has been mentioned that he had never filled any
kind of nomination paper, but, documents to that effect

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have been falsely prepared. Important point is that he
claims to be the member of the trust and the elections are
stated to have been held in 2006 and prior to that the
constitution was prepared, proceeding book was prepared
and voters list was also stated to be prepared. Yet, the
complaint appears to have been filed in 2014 i.e. after a

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gap of about 8 years. We do not find any explanation
coming forward, explaining the delay. Thus, it can be

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14 CrWP 662-2014 558-2014

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seen that since 2001 there is dispute between the two
groups and therefore, the complaints appeared to be filed
with mala fide intention.

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09.The learned Advocate appearing for the

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petitioners relied on Tukaram Annaba Chavan and Anr. V/s
Machindra Yeshwant Patil, (AIR 2001 Supreme Court 994)

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wherein Hon’ble Supreme Court has observed that :

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“On perusal of the record we find that a
contention that in the proceedings relating to
the confirmation or otherwise of the change
report, a contention has been raised that the
documents on the basis of which the report has
been submitted have been forged and fabricated by
the appellants. When the matter is pending
before Assistant Charity Commissioner who is
competent to determine the validity of the change
report in the interest of justice and for a fair
trial, the proceedings in a criminal cases remain
suspended till the proceeding pending before the
Assistant Charity Commissioner is disposed of.”

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He had therefore prayed for stay to the criminal
proceedings also. As aforesaid, even the subsequent
change report which was filed by the petitioner came to be
rejected. It is not necessary that the proceeding should
be stayed. Further, it is also to be noted that when the

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proceedings were before the Assistant Charity

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15 CrWP 662-2014 558-2014

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Commissioner, none of the complainants / informants had
attempted to file an application asking the concerned
authority to take action in respect of forged documents.

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Therefore, it would be a futile exercise to ask the
petitioners to face the trial. Case is made out for
exercising the powers of this Court under Articles 14 and
226 of Constitution of India and under Section 482 of Code
of Criminal Procedure.

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10. Hence, following order;

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ORDER

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(i)Both the petitions are allowed.

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(ii)Relief is granted in terms of prayer clause

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(B) and (C).

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(iii)Rule made absolute in those terms.

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 [SMT. VIBHA KANKANWADI] [T. V. NALAWADE]

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 JUDGE JUDGE

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Dahibhate/-.

Vijay Gulabrao Patil and Others v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Vijay Gulabrao Patil and Others v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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