Bombay High Court
Vivek Narendrakumar Choure And Another vs State Of Maharashtra Through Pso ... on 7 August, 2015
Bench: A. B. Chaudhari, P. N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.446/2012
1. Vivek Narendrakumar Choure,
aged 51 years, Occ. Business,
R/o Choure Line, Karanja Lad,
Dist. Washim.
2. Uday shishupal Choure,
aged 48 years, Occ. Business,
r/o Bhagwan Mahavir Chouk,
Mahavir Marg, Karanja lad,
Dist. Washim. ig .....APPLICANTS
...V E R S U S...
1. State of Maharashtra, through
Police Station Officer, Karanja,
Dist. Washim.
2. Vilas Sudhakar Raut,
aged about 37 years, occ. Nil,
r/o Goutam Nagar, Ramai Colony,
Karanja (Lad), Dist. Washim. ...NON APPLICANTS
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Mr. S. G. Joshi, Advocate for applicant.
Mr. H. D. Dubey, A.P.P. for non applicant no.1.
Dr. Anjan De, Advocate for non applicant no.2.
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AND
CRIMINAL APPLICATION (APL) NO.642/2012
Avinash Indarjit Mudhodkar,
aged 56 years, Occ. Service,
R/o Karanja, Tq. Karanja,
Dist. Washim. .....APPLICANT
...V E R S U S...
1. State of Maharashtra, through
Police Station Officer, Karanja,
Dist. Washim.
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2. Vilas Sudhakar Raut,
aged about 37 years, occ. Nil,
r/o Goutam Nagar, Ramai Colony,
Karanja (Lad), Dist. Washim. ...NON APPLICANTS
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Mr. Amit Band, Advocate for applicant.
Mr. H. D. Dubey, A.P.P. for non applicant no.1.
Dr. Anjan De, Advocate for non applicant no.2.
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CORAM:- A. B. CHAUDHARI & P. N. DESHMUKH, JJ.
DATED :- 07.08.2015
J U D G M E N T
1. Both these applications have been filed by the respective applicants with the following prayers:
Criminal Application No.446/2012
(i) To quash and set aside the F.I.R. No.2/2012 dated 27.06.2012 registered by the non applicant Police Station, Karanja, Dist. Washim for offence under Sections 389, 420, 504, 506, 341 read with Section 34 of the I.P.C.
and Section 3 (8) (x) and 3 (2) (v) under the Prevention of Atrocities act and the complaint/application under Section 156 (3) of Cr.P.C. filed by the non applicant no.2 and the order dated 25.06.2012 passed by the learned J.M.F.C. in CC No.56/2012 in the interest of justice.
Criminal Application No.642/2012
(i) Quash the impugned First Information Report No.2/2012 dated 27.06.2012 registered with Police Station, Karanja (non-applicant no.1) for the offence punishable u/s 389, 420, 504, 506 r/w 34 of Indian Penal ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:17 ::: 3 apl446.642.12.odt Code and 3(8)(x), 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and the complaint under section 156 (3) of Cr.P.C. filed by non-
applicant no.2 and order dated 25.06.2012."
2. The applicants in both these applications have invoked powers of this Court under Section 482 of the Cr. P. C. particularly in the light of decision in the case of State of Haryana and others ..vs.. Bhajanlal and others, 1992 AIR 604 as argued before us.
FACTS:
3. The applicants are the members of the Choure family of Karanja Lad and as contended by non applicant no.2-complainant they are very rich landlords of that area. The applicants are running J. D. Choure High School and the applicant-Avinash Mudhodkar is working as Head Master in that school run by the applicant as trustees. A Gruha Niraman society namely; J. D. Choure Vidyamandir Gruha Nirman Sanstha was floated and in that society, the applicant Avinash owns a plot. The applicant Avinash is an "Adarsha Shikshak" awardee of the year 2011 and is known as social and religious figure in the area. Non applicant no.2-complainant is a private contractor having no concern ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:17 ::: 4 apl446.642.12.odt whatsoever with the applicant or Gruha Nirman Sanstha or the School or the trust. He is not concerned with any plot in the society or with the School and is a rank stranger insofar as the housing society or the school is concerned. He, however, started filing complaints after complaints to the revenue department so also the police department, stating therein that the applicants have indulged in irregularities in sale and distribution of the plots in the housing society. He also complained that son of the applicant no.2 has also taken a plot though he is not a member of the housing society. Non applicant no.2, therefore, filed a complaint with the Police Station concerned and the PSO, on 02.02.2012 intimated him that his complaint was non cognizable. Having realized that he had made a complaint of non cognizable offence, he filed a private complaint case before the Magistrate under Section 156 (3) of the Cr. P. C. and the learned Magistrate passed the impugned order by ordering investigation. According to the applicant, non applicant no.2 having no concern with the applicants, has only intention to trouble the applicants and not only that, the alleged commission of offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act on the ground that he belongs to the Scheduled Caste.
::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:17 :::5 apl446.642.12.odt ARGUMENTS:
4. In support of the applications, learned counsel for the applicants in both these applications have invited our attention to the FIR or the complaint that was filed before the Magistrate under Section 156 (3) Cr. P. C. so also order made by the learned Magistrate for police investigation. The learned counsel for the applicants in both these applications have contended that the learned Magistrate, at least ought to have made an enquiry as to even remote connection of non applicant no.2 with the housing society or the School of the applicants. The learned Magistrate could have definitely found that he is a busybody in Karanja town indulging in troubling the applicants and the non applicant no.2 know that the Choureys are landlords of Karanja Lad, obviously, for extraneous consideration. Learned counsel for the applicants invited our attention to the FIR, registered with Police Station pursuant to the order made by the Magistrate, to contend that reading of the entire complaint nowhere shows that a Single offence is made out against the applicants and on the contrary, the tenor of the complaint shows that motive of the filing of the complaint is something different. The allegation about caste is ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:17 :::
6 apl446.642.12.odt made in the letter dated 20.10.2011, allegedly issued by the applicants in both these applications to the Education Officer (Secondary), Zilla Parishad, Akola, saying that non applicant no.2 was political worker and Engineer-Contractor belonging to the backward class and, therefore, saying so would amount to an offence under Section 3(8)(X) and 2(2)(v) of the SC & ST (Prevention of Atrocities) Act. Insofar as the allegations about other offences are concerned, there is absolutely no material whatsoever in the complaint itself to suggest that any offence is made out. The learned counsel for the applicants, therefore, prayed for quashing of the FIR.
5. Learned A.P.P. for non applicant no.1 filed reply and the same is in general terms except for one fact that though 17 plots were available as per the sanctioned plan, the society marked 20 plots and sold the same, which is not permissible. As regards commission of the offence, there is no specific reply given by the non applicant-State.
6. Non applicant no.2 has filed reply opposing the applications and also refuting the allegation made. The learned ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:17 ::: 7 apl446.642.12.odt counsel for non applicant no.2 prayed for dismissal of the application.
CONSIDERATION:
7. We have perused the entire FIR carefully. We have perused the complaint under Section 156 (3) of the Cr. P. C. filed by non applicant no.2 before the Magistrate so also the order impugned on the basis of which the FIR came to be registered for offences under Section 3 (1) (viii), 3 (1) (x), 3 (2) (v) of The SC and ST (Prevention of Atrocities) Act and Sections 389, 504, 506, 420 and 341 of the Indian Penal Code. Perusal of the complaint nowhere shows that non applicant no.2-complainant is a member of any backward class or caste or that there was any intention on the part of the applicants to practice untouchability or commit any offence under the SC & ST (Prevention of Atrocities) Act. The only allegation in the entire complaint, so far as provisions of the SC & ST (Prevention of Atrocities) Act are concerned, is that vide letter dated 20.10.2011 non applicant no.2-complainant was described as an Engineer/Contractor belonging to the backward class (Magasvargiya) and nothing more. The term 'Magasvargiya' is used in en number of correspondences, Government Circulars ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:17 :::
8 apl446.642.12.odt and Resolutions and so on and so forth. There is no averment anywhere in the complaint that the applicants had addressed the said letter to non applicant no.2 with a view to insult him. In fact, it is his case that the letter was not addressed to him but it was addressed to the Education Officer. It is also not clear whether he is a member of Scheduled Caste or Scheduled Tribe and the word 'Magasvargiya' is used in what context in the letter allegedly sent to the Education Officer. Secondly, taking into account, contents of the said letter, merely saying that non applicant no.2 is an Engineer/Contractor belonging to the Backward Class, does not attract any offence under any of the provisions of the SC & ST (Prevention of Atrocities) Act. There are en number Backward Classes notified so also Other Backward Classes. It is not the case of non applicant no.2 in the complaint or anywhere that he was referred as the person belonging to the Scheduled Caste, Scheduled Tribe and Other Backward Classes or any other particular backward class or that he was referred as the person belonging to the Scheduled Caste. It, therefore, clearly appears that non applicant no.2 realized that the police understood his intention to trouble the applicants for extraneous consideration particularly since for offence under Section 506 Part-I of the IPC, ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:18 ::: 9 apl446.642.12.odt he was given NC receipt. He, with his indefatigable spirit to abuse the process of Court, chose the way of filing of private complaint under section 156 (3) Cr.P.C. by filing complaint to the Magistrate. It is not his case that in a particular place, within public view or on a particular date and time, the applicants in both these applications have met non applicant no.2, conversed with him or addressed to him as a person belonging to backward class.
Reliance is placed by him only on the letter (not on record) allegedly addressed to the Education Officer, which is not even referred in the impugned order. This is the sum and substance of the entire complaint which we have carefully read. We, however, find from the impugned order that the learned trial Judge has not given any reason whatsoever as to why he ordered enquiry under Section 156 (3) of the Cr.P.C. The only reason recorded is in paragraph 4 of the order, which reads as under:
"4) Considering the ratio laid down in the above cited case law & the entire facts and circumstances it reveals that the complaint enquire detail investigation by police machinery to take cognizance of offence. Hence complaint be sent to the police authority of Karanja Police Station for investigation U/sec. 156 (3) Cr. P. C."::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:18 :::
10 apl446.642.12.odt It would be apt to quote hereunder the terse observations made by the apex Court in the case of Mrs. Priyanka Srivastava and another..vs..State of U. P. and others; 2015 (4) SCALE 120. Paragraphs 24, 25 and 26 of the said judgment read thus:
"24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order...
25. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees...
.....We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:18 :::
11 apl446.642.12.odt to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency....."
26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power.
It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."
8. We are surprised to see the order impugned, which does not at all show any application of mind. The learned Magistrate was expected to examine the complaint and documents and to see as to which offence was really made out. The learned Magistrate could not have passed such an absurd order in a casual manner. At any rate, the complaint itself shows that non applicant no.2 does not have any connection with the applicants, the Education Trust or housing society or the School but appears to be a busybody in the town of Karanja (Lad). He having found that ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 20:00:18 ::: 12 apl446.642.12.odt that the applicants are landlords and rich persons, non applicant no.2 appears to have set criminal law in motion only to trouble them by making use of the Act of 1989. Insofar as the alleged illegality in the allotment or sale or purchase of the plots in the housing society is concerned, it is the Government authorities or society or plot owners and not non applicant no.2 who could have grievance, if any, in respect of the alleged offence of cheating or as the case may be. Upon reading of the allegations regarding 'Magasvargiya' in the complaint, we are fully satisfied that non applicant no.2 has given colour to the allegations which he wanted to buttress for fulfilling his foul intentions. He, therefore, wanted to have the applicants criminally prosecuted in such serious offences. On reading of the entire complaint, again we find that not a single offence is made out and, therefore, this is a case clearly falling within the parameters of the guidelines fixed by the apex Court in the case of Bhajanlal.
We further find from the applications that the applicants were required to rush to the High Court for obtaining anticipatory bail since the offence was registered under the provisions of the SC & ST (Prevention of Atrocities) Act, 1989.
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9. We have carefully considered the entire matter to find out whether the complaint made by non applicant no.2 was mala fide and with an ill motive to extract something and we are satisfied that he having no connection with the housing society, school or trust or the applicants, the only consideration for filing of the complaint was that the applicants are rich landlords of Karanja (Lad) town. That is quite disturbing and alarming. We also find that he has not even alleged in the complaint that the allegations pertaining to the provisions of the SC & ST (Prevention of Atrocities) Act spring from even a single meeting of non applicant no.2 with applicants and thus even without any face to face encounter or otherwise, non applicant no.2 made adventure to set the criminal law in motion. In our opinion, looking to the above factual background, non applicant no.2 has fully abused the process of law and it is the duty of this Court to interdict and stop such types of misuse of law by such selfish and disgruntled elements like non applicant no.2 indulging in such nefarious activities.
To conclude, non applicant no.2 must be saddled with costs by way of deterrence.
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10. That being so, we make the following order.
ORDER
(i) Criminal Application Nos.446/2012 and
642/2012 are allowed in terms of prayer clauses (i) of the applications.
(ii) Non applicant no.2 shall pay costs of Rs.10,000/- (Rs. Ten Thousand Only) to each of applicants in both these applications within a period of four weeks from today, failing which the Collector of the District shall recover the same as arrears of land revenue and pay the same to the applicants within a further period of six months.
JUDGE JUDGE
kahale
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