Bombay High Court
Milind Eknath Awad vs The State Of Maharashtra on 5 June, 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 399 OF 2017
1. Dadasaheb Sakharamji Kshirsagar ..(Accused no.5)
Age: 59 years, Occu.: Agri. & Social Work,
R/o Saroj Colony, Ward No.19,
Amarawati, Tq. Dist. Amrawati.
2. Madhukar Gyanba Londhe ..(Accused no.3)
Age: 44 years, Occu.: Agriculture,
R/o Dhanora Road, Beed,
Tq. Dist. Beed.
3. Kalyan Dadarao Taktode, ..(Accused no.4)
Age: 42 years, Occu.: Agriculture,
R/o Akashwani Road, Beed,
Tq. Dist. Beed. ..PETITIONERS
VERSUS
1. State of Maharashtra
Through City Police Station,
Osmanabad, Dist. Osmanabad.
2. Laxman Kondiba Dhoble ..(Informant)
Age: 62 years, Occu.: Civil Service,
R/o Wagholi, Tq. Mahol,
Dist. Solapur. ..RESPONDENTS
WITH
CRIMINAL WRIT PETITION NO. 490 OF 2017
Milind Eknath Awad ..(Accused no.9)
Age: 38 years, Occu.: Service,
R/o Telgaon, Tq. Majalgaon,
Dist. Beed. ..PETITIONER
VERSUS
1. State of Maharashtra
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2. Laxman Kondiba Dhoble ..(Informant)
Age: 62 years, Occu.: Civil Service,
R/o Wagholi, Tq. Mahol,
Dist. Solapur ..RESPONDENTS
----
Mr. G.K. Thigale (Naik), Advocate for petitioners in
CRWP/399/17.
Mr. S.J. Salunke, Advocate for petitioner in CRWP/490/17.
Mr. S.D. Ghayal, A.P.P. for respondent no.1 - State.
Mr. A.S. Kale, Advocate for respondent no.2.
----
CORAM : SANGITRAO S. PATIL, J.
RESERVED ON : 23rd APRIL, 2018
PRONOUNCED ON : 05th JUNE, 2018
COMMON JUDGMENT :-
Accused nos. 3, 4 and 5 in Criminal Case No. 367
of 2004 have filed Criminal Writ Petition No. 399 of 2017,
while accused no.9 in the said case has filed Criminal
Writ Petition No. 490 of 2017, challenging the order
passed by the learned Chief Judicial Magistrate, Osmanabad
which was confirmed by the learned Additional Sessions
Judge, Osmanabad in Revision, whereby their claim for
discharge of the offences punishable under Sections 420,
465, 468, 469, 470, 471, 499, 500 read with Section 34 of
the Indian Penal Code ("I.P.C." for short) came to be
rejected.
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2. For the sake of convenience, the petitioners are
hereinafter referred to as the accused and respondent no.2
as the informant.
3. Accused no.2 - Kalpana Ramesh Narhire contested
Lok Sabha election held in April 2004 from Osmanabad
constituency no. 36 reserved for Scheduled Caste category.
The informant was the rival candidate of accused no.2.
Accused no.2 was declared as elected on 13 th May, 2004.
The informant filed F.I.R. in Police Station Osmanabad
City alleging inter-alia that accused nos. 3, 4, 5, 9 and
five others, including accused no.2 - Kalpana Narhire, in
furtherance of their common intention, at the instance of
accused no.2, convened a press conference in Hotel Samarth
at Osmanabad on 05th April, 2004 at about 08.30 p.m. and
distributed pamphlets titled as "ma>g jatIca telgI, Dao>gI l_m`a {obVVe " in
which several statements of facts were made which were
false and which they believed to be false or did not
believe to be true, relating to the personal character of
the informant. The accused persons further distributed
to the press reporters several copies of caste
certificates showing caste of the informant as "Holar
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(S.C.11)" bearing serial no. 733/1995, dated 27th March,
1995 allegedly issued by the Tahsildar and Executive
Magistrate, Solapur (North). They pretended the said
caste certificate to be genuine with a view to cheat the
voters so that the voters from the caste of the informant
should not vote in his favour, he could be defeated in the
election and further he could be defamed in the society.
On the basis of that F.I.R. a crime came to be registered
in the Police Station Osmanabad City. The investigation
followed. The statements of the witnesses were recorded.
After completion of the investigation, the present accused
and five others came to be charge-sheeted for the above
mentioned offences in the Court of the learned Chief
Judicial Magistrate at Osmanabad.
4. The informant challenged the election of accused
no.2 by filing Election Petition No. 1 of 2004 which was
decided by this Court vide judgment and order dated 16 th
October, 2008, reported as 2009(2) All M.R. 749, holding
that the informant failed to prove beyond reasonable doubt
that the caste certificate, that was circulated in the
press conference, was false and fabricated one. It was
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held that the informant failed to establish that accused
no.2 or anybody on her behalf committed any corrupt
practice under the provision of Section 99(1)(a)(ii) of
the Representation of the People Act, 1951 ("R.P. Act" for
short). Accordingly, the said election petition came to
be dismissed.
5. In view of the judgment delivered by this Court
in Election Petition No. 1 of 2004, some of the accused,
including the present petitioners, filed an application
before the learned Chief Judicial Magistrate seeking their
discharge of the above mentioned offences. The learned
Chief Judicial Magistrate rejected the application.
Accused no.2 and the present petitioners filed Criminal
Revision Application nos. 92 of 2015 and 93 of 2015 before
the Additional Sessions Judge, Osmanabad, who, in turn,
dismissed the said Revision Applications vide order dated
30th January, 2017. Being aggrieved by the said orders,
the present writ petitions have been filed.
6. The learned Counsel for the petitioners pointed
out to paragraph no. 27 of the judgment delivered by this
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Court in Election Petition No. 1 of 2004, wherein this
Court observed as under :-
"P (Petitioner) has not proved beyond reasonable
doubt that the caste certificate was fabricated
and false one. In fact, it can be said that till
25.4.2004, he himself was not certain about
falsity of the caste certificate. As such, it is
difficult to arrive at a conclusion that N1 and
N2 (Noticees) knew the statements to be false or
at least they believed the statements to be not
true. Such a knowledge/belief cannot be
attributed to them, or to R1 (Respondent no.1),
by relying upon Order VIII Rule 5 of the Code of
Civil Procedure. Taking into consideration the
reported judgments relied upon by learned counsel
for P on the point, it will have to be said that
the alleged statements are relating to personal
character of P and not about his public/political
character, since the statements allege him to
have deceived the society by false caste claim."
(amphasis supplied)
7. According to the learned Counsel for the accused,
when there is a judicial pronouncement made by the High
Court on the issue that Respondent no.2 failed to
establish that the caste certificate was false and
fabricated one, the offence of cheating and forgery would
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not survive. Consequently, the accused persons are liable
to be discharged of the said offences. The learned Counsel
further contend that in respect of prosecution for the
offence of defamation under Section 500 of the I.P.C., as
per the mandatory provisions of Section 199 of the Code of
Criminal Procedure ("the Code" for short), no Court shall
take cognizance of the said offence except upon a
complaint made by the person aggrieved by the offence.
They submit that in the present case no complaint as
contemplated under Section 199 of the I.P.C. has been
filed by the aggrieved person. The learned Chief Judicial
Magistrate had no jurisdiction to take cognizance of the
offence punishable under Section 500 of the I.P.C. on the
basis of the police report. Therefore, the accused persons
are liable to be discharged of the offence punishable
under Section 500 of the I.P.C. In support of their
contention, the learned Counsel for the petitioners cited
certain judgments which would be considered a little
later.
8. The learned Counsel for the informant fairly
concedes that the prosecution for the offence under
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Section 500 of the I.P.C. is not maintainable in the
absence of a complaint by the aggrieved person. However,
so far as other offences are concerned, he strongly
opposed the petitions. He submits that the judgment in
Election Petition No. 1 of 2004 by itself would not be
sufficient to discharge the accused persons of the said
offences. He submits that the judgment delivered in
Election Petition No. 1 of 2004 does not fall under
Sections 40 to 43 of the Evidence Act and, therefore,
would not be relevant for trial in respect of the said
offences. He submits that at the time of framing of
charges, the trial Court was required to consider only the
police report and the documents annexed thereto. It was
not permissible for the trial Court to look into the
findings recorded in Election Petition No. 1 of 2004,
because the findings of the Civil Court would not
supersede the findings of the Criminal Court.
Accordingly, the learned Chief Judicial Magistrate has
rightly kept the judgment in Election Petition No. 1 of
2004 out of consideration and has rightly rejected the
application filed by the accused persons for discharge.
He submits that the learned Additional Sessions Judge has
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rightly considered the facts of the case as well as the
legal position and has rightly confirmed the order passed
by the learned Chief Judicial Magistrate. He, therefore,
prays that the claim of the accused for their discharge of
the offences punishable under Sections 420, 465, 468, 469,
470 and 471 read with Section 34 of the I.P.C. may be
rejected. In support of his contention, the learned
Counsel for Respondent no.2 also cited certain judgments.
Maintainability of prosecution for the offence of
defamation.
9. Chapter XIV (Sections 190 to 199) of the Code
enumerates conditions requisite for initiation of
proceedings. Section 199 pertains to prosecution for the
offence of defamation. As per sub-section (1) of Section
199, no Court shall take cognizance of an offence
punishable under Chapter XXI (Section 499 to 502), except
upon a complaint made by some person aggrieved by the
offence. As per Section 2(d) of the Code, "complaint"
means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown, has
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committed an offence, but does not include a police
report. As defined under Section 2(r) of the Code,
"police report" means a report forwarded by a police
officer to a Magistrate under sub-section (2) of Section
173 of the I.P.C. In the present case, the informant is
an aggrieved person. If he wanted to prosecute the
accused for the offence of defamation punishable under
Section 500 of the I.P.C., it was necessary for him to
file a complaint as defined in Section 2(d) of the Code
before the Magistrate as contemplated under Section 199.
As held in the case of Abdul Rehman Mahomed Yusuff Vs.
Mahomed Haji Ahmad Agbotwala and Anr. AIR 1960 SC 82,
cited by the learned Counsel for the accused, the
provision of Section 198 (old) (S.199 new) of the Code is
mandatory. In the present case, admittedly, no complaint
was filed by the informant before the learned Magistrate
for the offence of defamation punishable under Section 500
of the I.P.C. Therefore, there was a legal bar under
Section 199 of the Code for the learned Chief Judicial
Magistrate for taking cognizance of the offence punishable
under Section 500 of the I.P.C. The learned Chief
Judicial Magistrate wrongly took cognizance of the said
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offence against the accused ignoring the bar under Section
199 of the Code. He had no jurisdiction to take
cognizance of the said offence. As such, the prosecution
against the accused for the offence under Section 499
punishable under Section 500 of the I.P.C., being not
maintainable, is liable to be vitiated. They are entitled
to get discharge of the said offence.
Maintainability of prosecution for the offences
under Sections 420, 465, 468, 469, 470 and 471 of
the I.P.C.
10. The learned Counsel for the accused contend that
in view of the above referred paragraph no. 27 of the
judgment in Election Petition no. 1 of 2004, the accused
cannot be said to have fabricated false caste certificate
of the informant. Therefore, they are liable to be
discharged of the offences punishable under Sections 420,
465, 468, 469, 470 and 471 read with Section 34 of the
I.P.C.
11. The learned Counsel for the accused relying on
the judgment in the case of Pradip Buragohain Vs. Pranati
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Phukan (2010) 11 SCC 108 submit that the charge of corrupt
practice, like criminal charge, must be proved beyond
reasonable doubt on the basis of credible evidence. They
submit that when the High Court, in Election Petition no.
1 of 2004 between the same parties, has recorded the
finding that Respondent no.2 has not proved beyond
reasonable doubt that the caste certificate is false and
fabricated one, the prosecution against the accused for
the offences punishable under Sections 420, 465, 468, 469,
470 and 471 read with Section 34 of the I.P.C. would not
be maintainable.
12. As against this, the learned Counsel for the
informant submits that the judgment in Election Petition
no. 1 of 2004 cannot be taken into consideration by the
Criminal Court since it does not fall under either of
Sections 40 to 43 of the Evidence Act. On the basis of
the judgments in the cases of State Anti Corruption
Bureau, Hyderabad and Anr. Vs. P. Suryaprakasham 1999 SCC
(Cri.) 373, State of Orissa Vs. Debendranath Padhi AIR
2005 SC 359 and Amit Kapoor Vs. Ramesh Chander and Another
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(2012) 9 SCC 460, the learned Counsel for the informant
submits that at the time of framing of charges, the Chief
Judicial Magistrate was required to consider only the
police report and the documents annexed thereto. The
trial Court can consider only the material produced by the
prosecution to find out whether sufficient grounds exist
or not for the purpose of proceeding with the trial and no
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or
not. He further submits that the High Court cannot
examine the facts, evidence and material on the basis of
which, it would end in conviction. He submits that the
learned Chief Judicial Magistrate and the learned
Additional Sessions Judge have rightly rejected the claim
of the accused for discharge of the offences punishable
under Sections 420, 465, 468, 469, 470 and 471 read with
Section 34 of the I.P.C.
13. Here, a reference may be made to an unreported
judgment of this Court in the case of Amit Bhanudas Ujgare
and Anr. Vs. State of Maharashtra and Anr. Criminal
Application No. 1990 of 2007 decided on 07th October, 2016,
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wherein the original accused nos. 1 and 2 had filed the
application for quashing of the order passed by the
learned Chief Judicial Magistrate issuing process against
them for the offences punishable under Sections 171-G,
193, 196, 197 read with Section 34 of the I.P.C. In that
case, the complainant and accused no.1 contested the
elections of Zilla Parishad, Beed from Wadwani
constituency which was reserved for Scheduled Caste (male)
candidate. Accused no.1 got elected by defeating the
complainant. The complainant filed a complaint before the
Judicial Magistrate First Class against the elected
candidate and three others, alleging therein that the
elected candidate was disqualified for the said election,
however, by submitting false information and affidavits,
he contested the election and as such committed the above
mentioned offences. The Judicial Magistrate issued
process against the elected candidate and three others for
the said offences. The said order was challenged by the
elected candidate and one of the accused. It was submitted
on behalf of the elected candidate that the complainant
had challenged the election result by filing Election
Petition no. 4 of 2007 before the learned District Judge,
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Majalgaon and the said election petition was dismissed by
the learned District Judge - 1 with a finding that the
complainant failed to prove that the elected candidate
made false declaration and as such, was disqualified to
contest the election. In view of these observations and
the findings it was contended that the prosecution against
the elected candidate and three others for the above
mentioned offences was liable to be quashed and set aside
since the findings of the Civil Court would get precedence
over the criminal proceedings.
14. By referring the case of K.G. Premshankar Vs.
Inspector of Police and Anr. 2002 Cri. L.J. 4343 (S.C.),
this Court held that if the criminal case and the civil
proceedings are for the same cause, the judgment of Civil
Court would be relevant, if the conditions of Sections 40
to 43 of the Evidence Act are satisfied. It was observed
that it cannot be said that the judgment rendered by the
Civil Court would be conclusive and would terminate the
criminal proceedings. Ultimately, the application to the
extent of the claim of the elected candidate for quashing
and setting aside the order of issuance of process passed
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against him for the above mentioned offences came to be
rejected and the order passed by the Judicial Magistrate
came to be confirmed to that extent.
15. It would be worthwhile to reproduce here the
observations of the Hon'ble Apex Court made in paragraph
30 of the judgment in the case of K.G. Premshankar
(supra):-
"30. What emerges from the aforesaid
discussion is - (1) the previous judgment which
is final can be relied upon as provided under
Sections 40 to 43 of the Evidence Act; (2) in
civil suits between the same parties, principle
of res judicta may apply; (3) in a criminal case,
Section 300, Cr.P.C. makes provision that once a
person is convicted or acquitted, he may not be
tried again for the same offence if the
conditions mentioned therein are satisfied; (4)
if the criminal case and the civil proceedings
are for the same cause, judgment of the civil
Court would be relevant if conditions of any of
the Sections 40 to 43 are satisfied, but it can
not be said that the same would be conclusive
except as provided in Section 41. Section 41
provides which judgment would be conclusive proof
of what is stated therein."
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16. In the present case, the judgment delivered by
this court in Election Petition no. 1 of 2004 does not
fall under either of Sections 40 to 43 of the Evidence
Act. Therefore, the findings recorded in the said
judgment would not be relevant at the stage of framing of
charges. Consequently, on the basis of the observations
made in paragraph no. 27 of the said judgment, the accused
cannot claim discharge of the offences punishable under
Sections 420, 465, 468, 469, 470 and 471 read with Section
34 of the I.P.C.
17. The learned Counsel for the accused have cited
the judgment in the case of Videocon Industries Ltd. And
Anr. Vs. State of Maharashtra and Ors. (2016) 12 SCC 315,
which pertains to the offence punishable under Section
56(1)(i) of the Foreign Exchange Regulation Act, 1973
("FERA" for short) for contravention of provisions of
Sections 18(2) and 18(3) of the said Act. The appellants
therein were prosecuted both under civil and criminal law.
The appellants were exonerated by the Tribunal by
dislodging the findings recorded by the adjudicating
authority. The Tribunal concluded that the appellants
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cannot be held guilty for Section 18(2) read with Section
18(3) of FERA. On the basis of the findings recorded by
the Tribunal, the prosecution for the offence under
Section 56(1)(i) of the Act was sought to be quashed. It
was held that if the allegation in the adjudicating
proceeding as well as the proceeding for the prosecution
is identical and the exoneration of the person concerned
in the adjudication proceeding is on merits, the trial of
the person concerned would be an abuse of process of law.
It would be unjust to permit the Enforcement Directorate
to continue with the criminal prosecution. In my view,
the said judgment would have no application to the facts
of the present case. In the present case, the judgment
delivered in Election Petition no. 1 of 2004 itself would
not be relevant at this stage of framing of charges since
it is not covered under either of Section 40 to 43 of the
Evidence Act. In paragraph 27 of the judgment in Election
Petition no. 1 of 2004 referred to above at para 5, it is
observed that the alleged statements are relating to
personal character of the informant and not about his
public/political character, since the statements allege
him to have deceived the society by false caste claim. In
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view of these observations, it was held that no corrupt
practice was committed within the meaning of Section
123(4) of the R.P. Act. The evidence required to prove
corrupt practice as contemplated under Section 123(4) of
the R.P. Act certainly would be different than that would
be required to be produced for proving the offences under
Sections 420, 465, 468, 469, 470 and 471 of the I.P.C.
The informant will have to be extended an opportunity to
adduce evidence to prove the said offences. The judgment
cited by the learned Counsel for the accused in respect of
the special statute would not be helpful for the
petitioners to claim discharge of the offences under
Sections 420, 465, 468, 469, 470 and 471 read with Section
34 of the I.P.C.
18. In view of the above facts and circumstances of
the case, I hold that the writ petitions are liable to be
allowed partly. The petitioners are liable to be
discharged of the offence under Section 499 punishable
under Section 500 of the I.P.C. They cannot claim
discharge in respect of the offences punishable under
Sections 420, 465, 468, 469, 470 and 471 read with Section
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34 of the I.P.C. The impugned orders are liable to be
quashed and set aside partly. In the result, I pass the
following order :-
ORDER
(I) Both the Criminal Writ Petitions are allowed partly.
(II) The impugned orders are partly quashed and set aside.
(III) The petitioners are discharged of the offence under Section 499 punishable under Section 500 of the I.P.C.
(IV) The prosecution shall continue against the petitioners for the rest of the offences. (V) Both the Criminal Writ Petitions are disposed of accordingly.
19. At this stage, the learned counsel for the petitioners Shri. G.K. Thigale (Naik) submits that the ::: Uploaded on - 05/06/2018 ::: Downloaded on - 08/06/2018 01:21:55 ::: 21 CRWP-399-17 petitioners wish to challenge this order before the Hon'ble Apex Court. He submits that the interim relief has been granted by this Court in favour of the petitioners restraining the trial Court from framing charges. He prays that the said relief may be continued for a period of six weeks, so as to enable the petitioners to approach the Hon'ble Apex Court. The learned counsel for respondent no.2 strongly opposed this prayer.
20. The petitioners wish to challenge this order before the Hon'ble Apex Court. They will have to be given necessary opportunity to challenge it. The interim relief granted in their favour, therefore, will have to be continued, otherwise the very purpose of approaching the Hon'ble Apex Court would be frustrated. The interim relief granted in favour of the petitioners shall continue for a period of six weeks from today.
[SANGITRAO S. PATIL] JUDGE SSD ::: Uploaded on - 05/06/2018 ::: Downloaded on - 08/06/2018 01:21:55 :::