Samadhan Awadhut Funde vs State of Mah. Thr. Pso Malkapur Tq.Malkapur Tq.Malkapur Dist.Buldhanan

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2025:BHC-NAG:3244

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

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CRIMINAL WRIT PETITION NO.311 OF 2024

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Samadhan Awadhut Funde, Age-53 yrs, Occ. : Service, R/o. 168, New Ganesh Colony, Near Ravi Nagar, Shilangan Road, Near Sonar Mangal Karyalaya, Amravati, Tq. & Dist. Amravati.

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...Petitioner

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// VERSUS //

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State of Maharashtra, through its Police Station, Malkapur, Tq. Malkapur, Dist. Buldhana.

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... Respondent

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Mr S.V. Sirpurkar, Adv. a/w Ms Poonam Pisurde, adv. for Petitioner. Mr M.J. Khan, A.P.P. for Respondent/State. Mr R.D. Karode, Advocate for Intervenor/Applicant.

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CORAM : ANIL S. KILOR, J. DATED : 21/03/2025

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ORAL JUDGMENT

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Heard Mr. Sirpurkar, learned counsel for the petitioner, Mr.

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Khan, learned A.P.P. for the State and Mr. Karode, learned counsel for the Intervenor.

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RULE . Rule is made returnable forthwith. Heard finally by

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consent of the parties.

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The present writ petition takes exception to the judgment and order dated 16.02.2024, passed by the Additional Sessions Judge, Malkapur, in Criminal Revision Application No.09 of 2023, rejecting the revision application arising out of the order passed by the leaned Judicial Magistrate First Class, Malkapur, rejecting the application for discharge under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”).

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The brief facts of the present case are as under :-

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The petitioner was holding charge of Senior Clerk during

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the period 2009-2011 in the Education Office, Buldhana.

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In the present matter, prosecution was launched in respect of forgery committed of an order of this Court purportedly passed on 16.01.2009 on Civil Application No.45 of 2009 in Writ Petition No.3416 of 1998. It is alleged that, there were only four respondents in Civil Application No.45 of 2009, and it was for direction to the Education Officer not to grant approval to the appointment of Asif Khan Abdulla Khan and accused No.1. Tanvir Khan Shabbir Khan-accused No.2 was not party to the said Civil Application. The said Civil Application was dismissed on 16.01.2009. Thereafter, it is alleged that, a forged order was prepared showing that, directions were issued to the

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Education Officer, Buldhana, to consider the proposal of appointment of accused Nos.1 and 2 till the result of Writ Petition No.3416 of 1998.

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After revealing the same this Court directed to make necessary inquiry and further to lodge a complaint to the Police Station.

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Thereupon, a complaint came to be lodged as Crime

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No.147 of 2023 with Sadar Police Station, Nagpur, for the offences punishable under Sections 420, 468 and 471 of the Indian Penal Code (for short “IPC”).

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Thereafter, the matter was transferred to Police Station, Malkapur city, as Crime No.77 of 2013.

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After investigation, chargesheet was filed on 16.01.2020,

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against four accused persons including the present petitioner.

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The petitioner thereupon, filed an application under Section 239 of the Cr.P.C., at Exh.49 seeking his discharge on the ground that he is innocent and he has been falsely implicated in the case. The said application came to be rejected vide order dated 15.12.2022. The rejection of application for discharge was the subject matter of challenge

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before the Revisional Court in Criminal Revision Application No.9 of 2023, the same was rejected vide judgment and order dated 16.02.2024. Hence, this petition.

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Shri Sirpurkar, learned counsel for the petitioner submits the basis to implead the petitioner as an accused in this case, is a notesheet put up by the petitioner on receiving two affidavits by accused Nos.1 and 2, praying for grant of approval subject to result of Writ Petition No.3416 of 1998. He submits that, there is no mention or reference to the order dated 16.01.2009 or even there is no recommendation by the petitioner to the Education Officer to grant approval in view of the order dated 16.01.2009, which alleged to have forged. He, thus, submits that, there is no material against the petitioner even to prima facie suggest his complicity in the alleged offence.

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Shri Sirpurkar, learned counsel for the petitioner further argues that, the note put up by the petitioner was in his official capacity and therefore, it is mandatory to obtain sanction to prosecute the petitioner under Section 197 of the Cr.P.C., which has not been obtained in the present case. He, therefore, submits that, on this grounds also the petitioner needs to be discharge. He fairly points out that, this ground was not raised before both the Courts below. However, since it goes to

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the root of the jurisdiction, it is a well settled principle of law that it can be raised at any stage.

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On the other hand, Shri Khan, learned A.P.P. strongly opposed the present writ petition and submits that, the offences are very serious since the order of this Court has been forged. It is submitted that, despite the fact that, in the earlier note, another clerk Shri Prabhakar Pandit has recorded the fact that the civil application was dismissed, ignoring the same, another note was put by the petitioner recommending grant of approval. He, therefore, submits that, as the material available on record, prima facie shows the involvement of the petitioner in the alleged offence, both the Courts below have rightly rejected the application for discharge.

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In the above referred backdrop, I have perused the record and also the impugned orders passed by the learned Magistrate and the learned Sessions Judge.

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Before adverting on merits, it would be beneficial and appropriate to refer to the note put up by the petitioner which is the basis to implead the petitioner as an accused in the present matter. The note reads thus:

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^^iqUkPPk lknj ekxhy fVi.kh fnukad 31@12@2010 ps vuq”kkaxk.ks [kkyhy izek.ks lknj dj.;kr ;sr vkgs-

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laLFksyk@’kkGsyk fnukad 14@02@2011 jksth =qVhi= ns.;kr vkys vkgs- R;kuqlkj ‘kkGsus [kkyhy izek.ks [kqyklk lknj dsyk ukgh vls fnlwu ;srs- rFkkih fnukad 29@04@2011 jksth iquPp ekU;rsl izLrko lknj dsyk vkgsJh jf’kn [kku ;qlwQ [kku ;kuah Jh vkflQ [kku vCnwyk [kku ;kauh izfrKk ys[k fygwu fnyk vkgs dh] dqekjh vatwe tgkW edlqn [kku ;kauh ;k mPp U;k;kyr [kaMihB ukxiwj ;sFks nk[ky dsysyh ;kfpdk dzekad 3416@1998 pk fudky v|ki i;Zar ykxysyk ukgh rlsp dqekjh vatwe tgkW edlqn [kku ;kaph ‘kS{kf.kd ik=rkB B.A. B.PD. vlY;keqGs ;kauk fu;qDrhph dkghgh laca/k ukgh vls R;kauh izfrKkys[k fygwu fnys vkgs- ek- mPp U;k;ky; [kaMihB ukxiwj ;kauh fnysyk fudky tks ykxsy rks eyk ekU; jkghy vls izfrKkys[kkr ueqn dsys vkgs- >sM-,- mnqZ gk;- eydkiqj ek- fBdk.kh eq[;k|kfidkauh lknj dsysY;k dk;ZHkkjkuwlkj nksu ‘kkfjfjd f’k{kdkapk dk;ZHkkj vkgs- ,d f’k{kd dk;Zjr vlqu fu;qDr dsyY;k f’k{kdkpk dk;ZHkkj ¼Jh vkflQ [kku vCnwyk [kku½ 17-3 n’kZfoysyk vkgs- R;keqGs ;kfpdk dzekad 3416@98 ;k fudkykps vf/ku jkgwu fnukad iklwu ekU;rk ns.;kl gjdr ulkoh vls okVrs- vFkok ekU; vlY;kl ekxZn’kZu o vkns’kkl lknj**

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At this stage, it would be also appropriate and beneficial to refer to the original order of this Court dated 16.01.2009, and the forged

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one.

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17. Original order dated 16.01.2009 reads thus:

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“None appears on behalf of the applicant/petitioner.

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Shri S.A. Mohta, the leanred Counsel appears on behalf of the respondent No.2 and Shri A.M. Deshpande, the learned AGP appears on behalf of the respondent No.3.

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In view of the absence of the applicant and her Counsel, the application stands dismissed for non prosecution.”

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The forged order reads thus:

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“None appears on the behalf of the applicant/ petitioner.

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Shri. S.A. Mohta, the learned counsel appears on behalf of respondent Nos.4 & 5 strongly supported the appointments of respondent Nos.4 & 5. The learned counsel pointed out that the appointments of respondent Nos.4 & 5 are made by following the procedure prescribed under the MEPS Act and Rules.

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In this view of the matter, We direct the respondent No.3, Education Officer (Secondary), Buldhana to consider the proposal of appointment of respondent No.5 from 02.02.2009 till the result of W.P.3416/98.”

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The learned Magistrate while rejecting the application of the petitioner and while recording its observations to justify the rejection, has observed in paragraph 4 that, prima facie it appears that accused No.4 i.e. the petitioner and another clerk, Shri Prabhakar Pandit, have helped to insert forged order in the proposal file and to destroy evidence of the same. Further, it is observed that, in the inquiry, the constable did not receive satisfactory answer from the concerned official. And lastly it is observed that, at the relevant time, the petitioner was holding the charge of Senior Clerk.

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Whereas, the Revisional Court observed that from the note

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put up by the petitioner dated 30.04.2001, it appears that the petitioner had a similar role in the proposal to grant approval to the appointment of the accused Nos.1 and 2. Therefore, the charge against the accused cannot be said to be baseless.

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In view of the observations made by the learned Magistrate

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and the learned Sessions Judge, let us now examine whether the

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petitioner put up any note in connection with the fake order dated 16.01.2009.

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From the note put up by the petitioner, it is evident that, he did not refer the order dated 16.01.2009, passed by this Court in Civil Application No.45 of 2009. Furthermore, no recommendation was made by him to grant approval to the accused Nos.1 and 2 in light of any such order dated 16.01.2009.

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The note shows that, he received two affidavits filed by the accused Nos.1 and 2 stating therein that Writ Petition No.3416 of 1998, is pending and approval may be granted subject to final result of the said writ petition. He, accordingly, at the end of the note, stated that, there is no objection for granting approval to the accused Nos.1 and 2 subject to final result of Writ Petition No.3416 of 1998.

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Admittedly, on the date, when the said note was put up by the petitioner on 30.04.2011, the writ petition No.3416 of 1998 was pending and disposed of in 2015 i.e. after four years of note.

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Interestingly, in an approval letter issued by the Education Officer in favour of accused Tanvir Ahmed, there is a reference of order

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dated 16.01.2009, which was missing in the note put up by the petitioner. The question is, if there was no reference to order dated 16.01.2009 in a note put up by the petitioner, how a reference came to be made of it in the approval letter of Education Officer, especially when it is the case of the prosecution that the said approval was granted on the basis of note put up by the petitioner.

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In the present matter, the said Education Officer who referred the alleged fabricated order of this Court dated 16.01.2009, in the approval letter was not made an accused. The investigating agency accept his explanation that he granted approval on the basis of the note put up by the petitioner without further investigation, how the date came to be mentioned in the approval order, which was not there in the note put up by the petitioner.

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The question involved in the present matter is whether the petitioner is rightly made as an accused and whether there is prima facie material available on record to show his complicity, obviously the answer in view of the above observations is ‘No’.

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Except the above referred note of the petitioner, there is nothing against the petitioner to show that he relied upon such fabricated

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of forged order dated 16.01.2009 or he insisted or recommended to grant approval in favour of the accused Tanvir by placing reliance upon such order dated 16.01.2009 or he received any benefits or advantage by putting such note. There is no evidence available on record even to slightly suggest that the applicant is involved or has any role in the alleged offence of fabrication and forgery of the order of this Court.

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Moreover, since it is evident that the note put up by the petitioner was put up by him in his official capacity while performing his official duty, sanction under Section 197 of the Cr.P.C., is must and in absence of such sanction and in view of the above referred observations, the prayer of the petitioner for discharge cannot be denied.

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In that view of the matter, I have no hesitation to hold that both the Courts below have committed an error in rejecting the application of the petitioner for discharge. Accordingly, I pass the following order :-

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i) The writ petition is allowed .

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ii) The order dated 15.12.2012, passed by the learned Judicial Magistrate First Class, Malkapur, in Regular Criminal Case No.35 of 2020 and the judgment and order dated

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16.02.2024, passed by the learned Additional Sessions Judge, Malkapur in Criminal Revision Application No.09 of 2023, are hereby quashed and set aside and;

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iii) The application preferred by the petitioner Exh.49 for discharge under Section 239 of Cr.P.C., is allowed .

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Rule is made absolute in above terms. No costs.

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( ANIL S. KILOR, J )

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C.L.Dhakate

Samadhan Awadhut Funde v. State of Mah. Thr. Pso Malkapur Tq.Malkapur Tq.Malkapur Dist.Buldhanan

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Samadhan Awadhut Funde v. State of Mah. Thr. Pso Malkapur Tq.Malkapur Tq.Malkapur Dist.Buldhanan

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