Bombay High Court
Uday Sajjan Thool And Another vs Rekchand Tulsiram Taksande And Another on 20 January, 2017
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Application (APL) No. 266 of 2014
Applicants : 1) Uday Sajjan Thool, aged about 48 years,
Occ: service, resident of "Gulmohar", Near
Workshop, Tukum, Chandrapur
ig 2) Maheshchandra Radhelalji Sharma, aged
about 39 years, occ: service, resident of c/o
Bharti Poglani, Professor Colony, Balaji Ward,
Ballarpur, District Chandrapur
versus
Respondents : 1) Rekchand Tulsiram Taksande, aged about
48 years, Gorakshan Ward, Ballarpur,
District Chandrapur
2) State of Maharashtra, through P. S. O.,
Ballarpur, District Chandrapur
Dr R. S. Sundram, Advocate for applicants
Shri A. R. Wagh, Advocate for non-applicant no. 1
Shri I. J. Damle, APP for non-applicant no. 2
Coram : Indira Jain, J
Dated : 20th January 2017
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2
JUDGMENT
By this application under Section 482 of the Code of Criminal Procedure, applicants are seeking quashing of the order dated 14.2.2014 passed by the learned Sessions Judge, Chandrapur in Criminal Revision No. 46 of 2013 and setting aside the Criminal Complaint Case No. 200 of 2012 pending before the learned Judicial Magistrate, First Class, Ballarpur.
2. The facts giving rise to the application may be stated in brief as under:
Respondent no. 1, an employee of Gurunanak College of Science at Ballarpur filed an application under Section 156 (3) of the Code of Criminal Procedure for issuance of direction to police to investigate into the offences allegedly committed by the applicants under Sections 420, 468 and 471 of the Indian Penal Code. At the relevant time, applicant no. 1 was working as a probationary Principal and applicant no. 2 was a Physical Training Instructor. The grievance of respondent no. 1 was that the details sent by applicants to the higher authority for grant of scholarship to students of the backward class community were wrongly sent and the strength of the students was wrongly shown to the Education Department and the University. He alleged that the documents were fabricated; false documents were ::: Uploaded on - 21/01/2017 ::: Downloaded on - 24/01/2017 01:04:14 ::: 3 prepared by applicants and thereby they committed the offences, as alleged, in the application under Section 156 (3) of Cr. P. C.
3. The learned Magistrate rejected the application vide order dated 11.12.2012. However, liberty was granted to respondent no. 1 to examine himself on oath as per the provisions of Section 200 Cr. P. C. The verification of complainant was then recorded and process was issued against the applicants for the offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code.
Applicants appeared in the proceedings and moved an application for recalling of process. The said application was rejected.
4. Being aggrieved by the order of rejection of recalling process, Criminal Revision No. 46 of 2013 was preferred before the Sessions Court, Chandrapur on 14.2.2014, revision application was dismissed. Hence, the applicants have invoked the extraordinary jurisdiction of this Court under Section 482 Cr. P. C.
5. Heard Dr R. S. Sunderam, learned counsel for applicants and Shri A. R. Wagh, learned counsel for respondent no. 1. Dr Sunderam submits that having rejected the application under Section 156 (3) Cr. P. C., the learned Magistrate ought not to have proceeded under ::: Uploaded on - 21/01/2017 ::: Downloaded on - 24/01/2017 01:04:14 ::: 4 Section 200 Cr. P. C. particularly, in the absence of complaint to that effect. It is submitted that the liberty granted to the complainant to record his statement is unknown to the procedural law and no reason whatsoever is assigned by the learned Magistrate to grant such liberty.
In short, the submission is that the impugned order is per se illegal and needs to be interfered with.
6. Shri A. R. Wagh, learned counsel for respondent no. 1 strongly supports the order. He placed reliance on the decisions of the Honourable Supreme Court in Joseph Mathuri @ Vishveshwarananda & anr v. Swami Sachidanand Harisakshi & anr reported in 2001 (3) Crimes 384 (SC) and Mona Panwar v. High Court of Judicature of Allahabad, through its Registrar and ors reported in (2011) 3 SCC 496 and submits that when an application was presented before the learned Magistrate, two options were available - one was to pass an order under Section 156 (3) Cr. P. C. and another was to direct examination of complainant on oath and the witnesses present. It is submitted that the learned Magistrate thought it proper to adopt second option and accordingly directed examination of complainant which was permissible in law. So far as the decisions of the Hon'ble Supreme Court are concerned, they reiterate well-settled proposition of law.
::: Uploaded on - 21/01/2017 ::: Downloaded on - 24/01/2017 01:04:14 ::: 57. In the case on hand, it is significant to note that respondent no. 1 moved an application for issuance of direction to Police Station Officer, Ballarsha for investigation under Section 156 (3) Cr. P. C. The said application was rejected by speaking order dated 11.12.2012. While rejecting the application, liberty came to be granted to the complainant to examine himself under Section 200 Cr. P. C. No where in the order the learned Magistrate records reasons for granting such liberty, particularly when an application seeking direction under Section 156 (3) Cr. P. C. was rejected. The order granting liberty is cryptic and in clear defiance of the mandatory requirements of law. In the above premise, impugned orders would be unsustainable in law. Hence, the following order.
(i) Criminal Application (APL) No. 266 of 2014 is accordingly allowed.
(ii) Rule is made absolute in terms of prayer clause (a).
(iii) No order as to costs.
Indira Jain, J
joshi
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