Bombay High Court
Prabhakar S/O Kerba Dubbewar vs The State Of Maharashtra on 15 April, 2009
Author: S.S. Shinde
Bench: S.S. Shinde
1
//REPORTABLE//
CRIMINAL APPLICATION NO.2126 OF 2001.
2001
Date of decision : 15th APRIL, 2009.
For approval and signature.
THE HONOURABLE SHRI JUSTICE S.S. SHINDE.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? } Yes.
2. To be referred to the Reporter or not? } Yes.
3.
Whether Their Lordships wish to see
the fair copy of the judgment? } No.
4. Whether this case involves a substantial }
question of law as to the interpretation }
of the Constitution of India, 1950 or }
any Order made thereunder? } No.
5. Whether it is to be circulated to the }
Civil Judges? } No.
6. Whether the case involves an important }
question of law and whether a copy of }
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? } No.
[Prakash Kadam]
Private Secretary to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO.2126 OF 2001.
Prabhakar s/o Kerba Dubbewar,
age 40 years, occu. business,
R/o Hadgaon, Dist. Nanded,
Near Bus Stand Hadgaon. .... APPLICANT.
VERSUS
1. The State of Maharashtra.
2. Prabhakar s/o Girmaji Bhalerao,
Assistant Regional Transport Officer,
Nanded, now at Yavatmal, Dist.
Yavatmal.
3. Ganesh s/o Arvind More,
Sub Inspector, Akhada Balapur,
Tq.Kalamnuri, Dist. Parbhani,
at present Latur, Police Control
Room, Latur.
4. Rajendra s/o Jawaharlal Darda,
Editor, Daily Lokmat, Aurangabad,
Lokmat Bhavan, Jalna Road,
Aurangabad.
5. Sudhakarrao Doiphode,
Editor, Daily Prajawani,
Nanded.
6. Krishna s/o Chandidasrao Shewadikar,
Editor, Shramik Ekjut, Nanded.
7. Ravindra Devidas Rasal,
Daily Godateer Samachar,
Nanded, Shivajinagar, Nanded.
8. A.D. Potnis, Daily Ajintha,
Editor, Kokadpura, Aurangabad. .... RESPONDENTS.
RESPONDENTS
...
Shri G.A. Gadhe, Advocate holding for
Shri P.R. Katneshwarkar, Advocate for applicant.
Shri N.H. Borade, A.P.P. for R.No.1 - State.
Shri P.V. Mandlik, Sr. Counsel for R.No.2.
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2
...
CORAM: S.S. SHINDE, J.
Date of reserving
the Judgment. : 20.02.2009.
Date of pronouncing
the Judgment. : 15.04.2009.
JUDGMENT:
1. This application is filed seeking appropriate writ, order or direction for quashing and setting aside the order dated 28th September, 2001 passed by the Addl. Sessions Judge, Nanded in Criminal Revision No.112 of 2000.
2. It is the case of the applicant that the respondent no.2 herein was the Assistant Regional Transport Officer at the time of registration of the vehicle of one Sandeep s/o Suryakantrao Amilkantwar. Now the said officer is Deputy Regional Transport Officer at Yawatmal. The applicant herein is the maternal uncle of Sandeep Amilkantwar and he is power of attorney holder of vehicle No.MH-26-B-326 and he made the payment of Rs.15,840/- as tax of the said vehicle for registration and issue of permit and other certificates of the said vehicle on 26.11.1997 under receipt No.TM-5410/72 DATED 20.11.1997 as per the provisions of the Bombay Motor Vehicles ::: Downloaded on - 09/06/2013 14:30:48 ::: 3 Tax Act.
. It is the case of the applicant that the provisional vehicle no.MH-26-B-326 was given by the office of respondent no.2 and respondent no.2 himself made an endorsement that the tax is accepted for the sitting capacity of the said vehicle 18+1+1 on the application of registration filed by the applicant. It is the case of the applicant that the payment of tax was made for a period of three months under Section 4-A of the Bombay Motor Vehicles Tax Act (for short, referred to as the said Act) and acceptance of the said tax by respondent no.2 arises under Section 4-A of the said Act.
3. It is further case of the applicant that the said vehicle was stopped by Police Inspector on 25.5.1998 for inspection of its certificates.
The name of the said Inspector is Ganesh More who is respondent no.3 herein. Respondent no.2 had given information under his letter dated 1.6.1998.
4. The letter dated 22.12.1997 states that Bus No.709 Engine No.497 D-22 KSO-885 Chessis No.386-25 KSO-72-8921 is owned by Sandeep ::: Downloaded on - 09/06/2013 14:30:48 ::: 4 Amilkanthwar and its certificates are pending for consideration for the office. It is the case of the applicant that respondent no.2 in its letter dated 1.6.1998 did not mention the facts which are mentioned in earlier letter dated 22.12.1997 and respondent no.2 had given false information to respondent no.3 in letter dated 1.6.1998 stating therein that the vehicle was not registered and no number is allotted and no fact regarding sitting capacity of the vehicle Mh-26-B-326 was mentioned in the letter dated 1.6.1998.
5. It is the case of the applicant that the prosecution was launched by respondent no.3 against Sandeep and he wanted to implead the present applicant in the said case without adding applicant as co-accused as per procedure under Section 319 of Criminal Procedure Code. According to the applicant, respondent no.3 acted on the basis of information supplied by respondent no.2 in his letter dated 1.6.1998 and the information given in the said letter by respondent no.2 facilitated respondent no.3 to arrest the applicant and make him as co-accused in pending case against Sandeep and others.
::: Downloaded on - 09/06/2013 14:30:48 ::: 56. It is the case of the applicant that the letter issued by respondent no.2 to respondent no.3 on 1.6.1998 was criminal conspiracy between respondents 2 and 3 to prosecute the present applicant. According to the applicant, the order passed by the revisional Court is contrary to the evidence brought on record. Respondent No.2 was bound to give correct information about vehicle Mh-26-B-326. However, respondent no.2 had given false information and therefore, his act to give false information is not part of his official work or duty and as such, no sanction to prosecute respondent no.2 is necessary. It is the case of the applicant that the revisional court made error in law to make such observation that to prosecute respondent no.2 sanction of the State is necessary.
7. Further case of the applicant is that the process was rightly issued against respondent no.2 and the revisional Court, without application of mind, held that the point of sanction has not been considered by the lower Court at the time of issue of process against respondent no.2. It is further case of the applicant that the revisional Court did not consider as to whether the correspondence ::: Downloaded on - 09/06/2013 14:30:48 ::: 6 between respondents 2 and 3 is as per the requirement of law and in furtherance of prosecution of applicant, whether an offence of cheating should been registered against him. It is further case of the applicant that revision petitioner / respondent no.2 had not raised the point of sanction even in his application.
Therefore, according to the applicant, the revisional court has not properly considered the case in proper perspective and quashed the process issued against respondent no.2.
8. The learned Counsel for the applicant submitted that the Sessions Judge, Nanded, without condoning the delay in filing Criminal Revision, allowed the revision contrary to the procedure of law. The Criminal Revision No.112 of 2000 was not accompanied by application for condonation of delay and, therefore, the revisional court should not have condoned the delay.
. It is further submitted that in the case of
Ballumal A. Jaisingh vs. M/s J.J. Builders and
others [2003(3) Mh.L.J. 238],
238] this Court has held
that in absence of proper application for
condonation of delay, Court has no jurisdiction to ::: Downloaded on - 09/06/2013 14:30:48 ::: 7 condone delay.
. The learned Counsel further submitted that the order to issue process is an interlocutory order and cannot be challenged in revision under Section 397(2) of Cr.P.C. Section 397(2) contemplates that the revisional court shall not exercise its powers in relation to an interlocutory order passed in any appeal, enquiry, trial or other proceedings. The learned Counsel further submitted that the Apex Court in the case of Subramanium ig Sethuraman vs. State of Maharashtra and another [(2004) 13 SCC 324] in paragraph 14 held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter 20 Cr.P.C.
and such an order made at a preliminary stage being an interlocutory order, the same cannot be reviewed or reconsidered. According to the learned Counsel for the applicant, revision against order of issuance of process by the Magistrate was not maintainable. The learned Counsel restricted his arguments to only two points though many grounds are taken in application. Firstly, the Court allowed the revision application in absence of condonation of ::: Downloaded on - 09/06/2013 14:30:49 ::: 8 delay application; secondly, as per the section 397(2) of Cr.P.C., the Court has no power to deal with the interlocutory order and, therefore, the Counsel would submit that the order passed by the revisional Court may be quashed and set aside.
9. On the contrary, the learned Senior Counsel appearing for the respondent Respondent no.2 submitted that the learned Sessions Court has considered the facts on record and the provisions of law in its proper perspective. There is no illegality or irregularity in the order passed by the Sessions Court. It is further submitted that respondent no.2 is a Government Servant and he has acted in official capacity while discharging his duties and, therefore, he is protected being a public servant as per the section 197 of Cr.P.C.
He further submitted that admittedly, the complainant has not obtained prior sanction for initiating criminal case against the public servant as provided in Section 197 of Cr.P.C. The learned Counsel further submitted that as per the story narrated by the complainant, when the vehicle was stopped by Shri More, admittedly, tax was not paid for the said vehicle, the vehicle was not having registration number. There is nothing ::: Downloaded on - 09/06/2013 14:30:49 ::: 9 placed on record to show that the accused / respondent no.2 has committed the alleged offence.
The learned Counsel further submitted that on the date of incident or on the day of correspondence between the revision petitioner / respondent no.2 and respondent no.3, the complainant did not pay tax and even according to the complainant the tax paid was for the period from 26.11.1997 till 31.1.1998 and the information was given by respondent no.2 on 1.6.1998. The information which was supplied by the revision petitioner -
respondent no.2 was to the effect that vehicle was not registered till that date and therefore, registration number was not given. He also could not inform as to whether the vehicle was having passing certificate. He could not produce copy of the R.C. Book, tax book, insurance etc. as it was not applicable. According to the learned Senior Counsel, PSI More had initiated criminal proceedings against owner of the vehicle i.e. Sandeep. According to the complainant, the letter dated 1.6.1998 was the basis for prosecution by respondent no.3 against the applicant and said fact was reported in newspaper and, therefore, according to the complainant, respondent no.2 had intention to defame him. The learned Senior ::: Downloaded on - 09/06/2013 14:30:49 ::: 10 Counsel submitted that the story of the complainant is totally false. The letter date 1.6.1998 had given correct information to respondent no.3 as per office record.
. It is further argued that the issuance of letter dated 1.6.1998 by respondent no.2 to the respondent no.3 herein can at the most be linked with giving of a false information to the public authority on which he has relied upon. The same cannot be said to be a part of alleged defamation by way of publication in the news paper. If it was a false declaration then the remedy is different. The revisional court has considered whether this document i.e. letter dated 1.6.1998 is sufficient to link respondent no.2 with any sort of alleged defamation. It is further submitted that the recitals in the complaint would clearly show that the tax was paid till January, 1998 and on the date of incident the same was not paid. According to the learned Counsel, the complainant had failed to demonstrate that the information given by respondent no.2 by letter dated 1.6.1998 to the respondent No.3 was with an intention to defame the complainant and, therefore, there was no case against the the ::: Downloaded on - 09/06/2013 14:30:49 ::: 11 revision petitioner / respondent no.2 for issuance of process. The sum and substance of the argument of the learned Senior Counsel for respondent no.2 is that firstly, the letter dated 1.6.1998 issued by respondent no.2 to respondent no.3 was in his official capacity. Therefore, to prosecute respondent no.2 sanction of Government was necessary. By any stretch of imagination the contents of letter dt.1.6.1998 cannot be said to be with an intention to defame the complainant.
Respondent no.2 had disclosed true and correct
facts in the
letter dated 1.6.1998 as per the
record maintained by the office. Therefore, there
was no any case of defamation and issuance of
process by the J.M.F.C. against respondent no.2
was unwanted and revisional court has rightly set
aside the order passed by the J.M.F.C. issuing
process against respondent no.2. Therefore, the
learned Senior Counsel would submit that the
application being devoid of any merits, the same
may be dismissed. The learned Senior Counsel
placed reliance on the reported judgment of Kerala High Court in the case of Ranadevan v. State (1987 CRI.L.J.13) and submitted that in paragraph 5 of the said judgment, the Kerala High Court has observed that when there are materials before the ::: Downloaded on - 09/06/2013 14:30:49 ::: 12 court to come to the conclusion that the delay was not occasioned by the purposeful laches of the appellant, but due to reasons beyond his control, the court ought to have considered that aspect of the matter instead of dismissing the appeal on the ground that a formal application has not been filed. Therefore,the learned Senior Counsel would submit that for condonation of delay, separate application is not necessary. The revision petitioner i.e. respondent no.2 herein in his application before the revisional court has explained that there is no delay in filing the revision petition since the same was filed within limitation from the date of knowledge to respondent no.2. It is further submitted that in the revision petition itself the prayer was incorporated for condonation of delay. Therefore, the technical objection raised by the applicant herein that there was no application for condonation of delay is required to be rejected.
. The learned Senior Counsel further placed reliance on the decision in the case of Manganese Ore (India) Ltd. through its Manager and Mine Manager, Manganese Ore (India) Ltd. vs. Municipal Council through its Chief Officer, Shri ::: Downloaded on - 09/06/2013 14:30:49 ::: 13 Vasant s/o Bandoppo Uttarwar (2003 BomCR(Cri) 1980) and submitted that as this Court in the said judgment in paragraph 18 has considered that limitation would start from the date of knowledge of the commission of offence to the concerned officer. Therefore, the learned Counsel submitted that for all these reasons the application filed by the applicant deserves to be rejected.
10. After hearing the learned Counsel for the applicant and the learned Senior Counsel for the contesting respondent no.2 and the learned A.P.P. for the State, I am of the considered view that this application deserves to be rejected. The revisional Court has given elaborate reasons for entertaining the revision application of respondent no.2 herein and it is not necessary to go into the details. Suffice it to say that the respondent no.2, at the relevant time when he had issued letter dated 1.6.1998 to respondent no.3, was discharging his duties as a public servant.
It appears from the evidence brought on record that he acted in his official capacity in due discharge of his duties and, therefore, even before issuing the process, sanction should have been taken to prosecute the respondent no.2 ::: Downloaded on - 09/06/2013 14:30:49 ::: 14 herein. The complaint itself shows that the complainant had paid the taxes on 26.11.1997 for the period till 31st January, 1998 and the information was given by respondent no.2 to respondent no.3 on 1.6.1998. The information was given that the vehicle was not registered till 1.6.1998 and, therefore, registration number was not given. He also could not inform whether the vehicle was having passing certificate etc. The contents of the letter would not attract any criminal proceedings and if at all respondent no.2 is to be prosecuted, it is necessary to obtain sanction from the State Government or from the appointing authority, to prosecute respondent no.2.
. The second point which is raised by the Counsel for the applicant is that there was delay in filing criminal revision and the same is condoned without having separate application for condonation of delay by the respondent no.2 herein. In that regard, it is relevant to refer to paragraph 11 of the Criminal Revision No.112/2000 filed by the respondent no.2 herein before the Sessions Judge, Nanded. Paragraph 11 of the said revision reads thus:
::: Downloaded on - 09/06/2013 14:30:49 ::: 15"11. That, the summons were issued to revision petitioner i.e. accused No.1, they were served on 13.3.2000, therefore from the date 13.3.2000 instant revision is within limitation. 13.3.2000 is the date of knowledge for revision petitioner to seek the remedy before the Hon'ble Court."
. On reading paragraph 11 it is clear that summons was served on him on 13.3.2000 and from the date of knowledge, the revision is within limitation. The learned revisional Court has discussed about the point of limitation in paragraph 9 of its judgment. It is not necessary to repeat what is stated by the revisional Court in para 9. There is no reason to disagree with the reason given in paragraph 9. Therefore, there is no substance in the contention of the learned Counsel for the applicant that the revision was not within limitation and it was necessary to have separate application for condonation of delay.
11. Third contention of the Counsel for the applicant that the order to issue process is an interlocutory order and, therefore, revision ::: Downloaded on - 09/06/2013 14:30:49 ::: 16 before the Sessions Court was not maintainable, is required to be rejected in view of the decision of this Court in the case of V.K. Jain & others v.
Pratap V. Padode & another (2005(2) BomCR(Cri)
738) in which it is clearly held that the revision before the Sessions Court challenging order of issuance of process by the Magistrate is maintainable. In that judgment, this Court on careful scrutiny of the judgment of the Apex Court in the cases of (1) Adalat Prasad v. Rooplal Jindal [2004(2) Bom.C.R.(Cri) (S.C.) 857]; (2) Subramanium Sethuraman v. State of Maharashtra [2005(1) Bom.C.R.(Cri) (S.C.)189 : 2005(1) Mh.L.J. 626]; (3) K.M. Mathew v. State of Kerala [1992(1) S.C.C. 217 and (4) Commissioner of Income Tax v. Sun Engineering Works (P) Ltd., [1992(4) S.C.C.363], has come to the conclusion that revision petition is maintainable against the order passed by the Magistrate issuing process.
Therefore, there is no substance in the criminal application. Hence, the same deserves to be rejected.
12. In the result, Criminal Application is rejected. Rule is discharged. Interim relief, if any, stands vacated.
::: Downloaded on - 09/06/2013 14:30:49 ::: 17[ S.S. SHINDE ] Judge.
PLK/ ::: Downloaded on - 09/06/2013 14:30:49 :::