Kailas Bhagwat Chindhe Vs the State of Maharashtra

Mr. A. S. Khedkar, Advocate for the Petitioners.
Mr. S. B. Jadhav, APP for Respondent – State in
WP/384/2023.
Mr. N. B. Patil, APP for Respondent – State in
ABA/393/2023.

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CORAM:R.M. JOSHI, J.

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DATE:DECEMBER 15, 2023

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PER COURT:

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1.Petitioners are accused in R.C.C. No. 669/2013

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pending before learned JMFC, Ahmednagar and being
aggrieved by the order dated 30.07.2022 passed below
Exh. 496 & 505 rejecting plea for discharge and order
passed by Revisional Court dated 28.09.2022 confirming
the said orders.

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2.Petitioners are arraigned as accused in
connection with FIR No. 398/2012 in connection with
offences punishable under Sections 420, 465, 468, 471,
193 read with Section 34 of the Indian Penal Code
lodged at the instance of Education Officer (Primary),
Zilla Parishad, Ahmednagar. It is alleged in the report
that in the month of May, 2012 process of general
transfers of teachers was initiated. There was
Government Resolution dated 20.04.2012 which provides
that teachers with disability would be exempted from
the process of general transfer and disability
certificates were asked to be produced. As per the said
Government Resolution number of teachers submitted
disability certificate. The said certificates were
forwarded to Civil Surgeon for verification, who in
turn, issued written communication stating that out of
total certificates submitted by the teachers 76
certificates are found to be bogus. A complaint was
lodged against those 76 teachers whose disability
certificates were alleged to be bogus. After completion
of investigation, charge-sheet came to be filed.

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3.Petitioners filed discharge application and

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also placed reliance on documents including enquiry
report exonerating Petitioners in departmental enquiry.
The said application came to be rejected on 30.07.2022.
Being aggrieved by the said order, Revision
Applications being nos. 76/2022 and 77/2022
respectively were preferred under Section 397 of Code
of Criminal Procedure, which was rejected by confirming
the order passed by learned JMFC.

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4.It is the contention of the Petitioners that
the both Courts below have failed to appreciate that
for obtainment of disability certificate, Petitioners
had approached Civil Hospital, Ahmednagar and after
their physical examination certificates in question
were issued. It is also claimed that as per the
prescribed procedure of the hospital certificates bear
stamp of the hospital. It is claimed that there is no
allegation that the stamp of the hospital is bogus on
certificates as well as on the endorsement made on the
ration card. It is claimed by the Petitioner that
Petitioner has obtained certificate on 06.04.2010 and
the Government Resolution in question was issued after
one year thereof and hence, in any case, the Petitioner

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Page 3 of 9

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cannot be said to have submitted bogus certificate for
the purpose of taking benefit of the transfer policy.
It is also claimed that Chief Executive Officer, Z.P.
had initiated departmental enquiry against the
Petitioners, on the same ground as raised in the FIR,
and by order dated 30.05.2014 Petitioners were
exonerated therefrom. It is thus contention of the
Petitioners that since the Petitioners were exonerated
on the basis of same facts and circumstances, they seek
discharge. They also sought parity on the ground that
similarly placed accused nos. 78 to 92 have been
discharged by learned JMFC, Ahmednagar.

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5.Learned Counsel for the Petitioners submitted
that allegation with regard to the bogus certificates
were submitted in order to get benefit of transfer
policy of year 2012 is not attributable to the
Petitioners as they were not covered by the transfer of
the said year. It is submitted that statement of Civil
Surgeon who claimed that 76 certificates are bogus is
not recorded during the course of investigation and as
such, even if trial is conducted the offences alleged
against Petitioners cannot be established. It is

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submitted that medical officer who has issued
certificates is also an accused and hence, said
certificates cannot be proved to be bogus as the co-
accused cannot be called upon to step into witness box
on behalf of prosecution. Without prejudice to their
submissions, it is sought to be contended that
Petitioners are entitled for discharge as they are
already exonerated in the departmental enquiry and
chances of conviction in the criminal trial involving
the same fact is bleak. To support these submissions,
reliance is placed on judgment of Hon’ble Apex Court in
case ofAshoo Surendranath Tewari Vs. Deputy
Superintendent of Police, EOW, CBI, AIR ONLINE 2020 SC
809. He also placed reliance in judgment of this Court

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in case ofRamesh Manohar Madawi Vs. State of
Maharashtra, Criminal Application No. 731/20250.

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6.Learned APP opposed the Petitions with

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contention that there is more than sufficient evidence
on record in order to frame charge against Petitioners.

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It is his contention that this is not the case where if
the evidence of prosecution goes uncontroverted it will

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not result into conviction of the accused. It is his

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further contention that allegation against the

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Petitioners is of preparation of bogus document and its
submission to department and hence, it would be
immaterial as to whether the said document was
submitted in pursuance to the Government Resolution of
2012 or otherwise. It is his submission that there are
statements of witnesses from hospital indicating that
the certificates issued by the Petitioners are not
genuine. It is submitted that even though certificate
is issued by co-accused, there could be other evidence
by which the said fact can be proved.

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7. First contention of the Petitioners is about
they being entitled for discharge for the reason that
the statement of Civil Surgeon is not recorded, does
not hold water as there are statements of other
witnesses from the District Hospital indicating that
certificates in question including certificates
submitted by the Petitioners were not issued by the
District Hospital. The said statements if go without
challenge would be sufficient to prove the charge
against the Petitioners. Thus, this Court find no
substance in the contention that merely because the

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Page 6 of 9

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statements of the Civil Surgeon is not recorded or
doctors who issued certificate are also co-accused the

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offence cannot be proved against the present
Petitioners.

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8.Second contention of the Petitioners is about
their exoneration in the departmental enquiry. No
doubt, Hon’ble Apex Court in case of Ashoo Tewari
(supra) has held that accused was exonerated by CVC in
departmental proceedings, chances of his conviction in
criminal trial involving the same facts appear to be
bleak and hence, accused were held to be entitled for
discharge. The said judgment certainly binds this
Court. The Hon’ble Apex Court has culled out the ratio
of discharge. In clause (vii) it is held that “in case
of exoneration, however, on merits where the allegation
is found to be not sustainable at all and the person
held innocent, criminal prosecution on the same set of
facts and circumstances cannot be allowed to continue,
the underlying principle being the higher standard of
proof in criminal cases”. This judgment, therefore,
clearly shows that in case of exoneration is on merits,
it is not permissible for continuation of criminal

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cases. In the instant case, however, perusal of the
report of Enquiry Officer shows that even all witnesses
whose statements forms part of the charge-sheet were
not examined in the said enquiry. Prima facie it
appears that relevant witnesses were not even called in
the enquiry. In fact the enquiry officer has not
recorded any finding that the certificate submitted by
the Petitioners is genuine. In considered view of this
Court the said exoneration being not on merit, and not
based on the same evidence which is likely to be led in
the criminal trial, Petitioners are not entitled to get
benefit of the judgment of Hon’ble Apex Court.

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9.As far as claim of the parity is concerned,
there is nothing before this Court to draw conclusion
that the findings of exoneration against the co-accused
is on merit or otherwise. Hence, their discharge cannot
become a ground for allowing Petition and discharging
present Petitioners.

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11.Consideration of material evidence in the

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charge-sheet if goes unchallenged would be justified to
prove guilt of Petitioners. There is more than enough
evidence to make out strong suspicion of commission of

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crime by Petitioners and hence, it is fit case to frame
charge against them. In view of above, this Court finds
no substance in challenge to the impugned orders.
Hence, Petitions stand dismissed. Pending application,
if any, are also disposed of.

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(R.M. JOSHI, J.)

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Malani

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Kailas Bhagwat Chindhe v. the State of Maharashtra

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Kailas Bhagwat Chindhe v. the State of Maharashtra

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