Bombay High Court
Dr. B.R. Rairikar And Another vs Uday Bhalchandra Wavikar And Others on 12 March, 1980
JUDGMENT Gadgil, J.
1. Accused Nos. 1 and 2 in Criminal Case No. 36/S of 1978 of the file of the Metropolitan Magistrate, 6th Court, Mazgaon, Bombay, have filed this petition under Section 482 of the Code of Criminal Procedure for quashing the said criminal case and the order framing charge in it.
2. In order to understand the rival contentions of the parties, it will be better to give a few salient facts. There is a college known as Lala Lajpatrai College of Commerce and Economics at Bombay. Applicant No. 1 Dr. B. R. Rairikar (who is the original accused No. 1) is the Principal of that college while applicant No. 2 Professor G. M. Rajarshi (who is original accused No. 2) is the Vice-Principal. Opponent No. 2 Vinod Singh (who was a student of the college) is accused No. 3 in the lower Court while opponent No. 1 Uday Bhalchandra Wavikar is the complainant in the said criminal case. It would be convenient to refer the parties by their names and not as applicants and oppnents or accused and complainant. A function known as the college day was to be held on 27th January, 1978. Complainant Wavikar was a past student of the said college. He appeared for the Bachelor of Commerce Examination from that college in 1977. He, however, failed. He was also invited for the said function which began at about 2.00 p.m. or so, Wavikar went to the function hall and occupied a sent somewhere in the rear portion of the hall. He had carried with him a small bag popularly known as VIP bag. That bag contained some papers belonging to Wavikar. His version is that he kept the bag near his seat and went to the front portion of the hall in order to meet his friends and the staff members of the college. When he was talking with the Staff Members of the college he found that certain pamphlets were hurled in the hall. He did not pay attention to this fact. However, he suddenly went to the place where he had kept the bag and he found that the bag was missing. He made efforts to trace it but without any success.
3. Wavikar further contends that in the same evening Dr. Rairikar made a phone call to the father of Wavikar that he (Rairikar) was in the possession of the bag and that the father should come and see Rairikar in that connection. On the next day Wavikar went to the college and saw Rairikar who, however, refused to return the bag and said that the bag contained leaflets or pamphlets that were hurled in the hall. Wavikar refuted the allegation. He then left the room. However, he learned outside the room that Vinod Singh had put the said pamphlets in the bag in order to falsely involve Wavikar. Wavikar further alleged that he demanded the bag from Rairikar and Rajarshi and that their refusal to return the bag constitute an offence of theft. It is with this allegation that a private complaint under Section 379 read with Section 114 of the Indian Penal Code was filed by Wavikar against Rairikar, Rajarshi and Vinod Singh. The said complaint was numbered as criminal case No. 36/S of 1978. In the complaint, Wavikar also prayed that a search warrant be issued for attaching the said bag from the possession of Rairikar. But the Roznama of the case shows that the Magistrate did not issue such a search warrant. He, however, issued a process under Section 379 read with Section 114 against Rairikar, Rajarshi and Vinod Singh. This happened on 31st January, 1978. However, on the next day i.e. on 1st February, 1978 Wavikar again made an application (copy of which is at Annexure D to the main petition) requesting that warrant be issued for searching the room of the Principle i.e., Rairikar in order to have the bag before the Court. On this day, the case had gone to another Magistrate viz., Mr. R. D. Chandavarkar, as the allotment of the work was changed as usual. The Magistrate issued search warrant as prayed for by Wavikar. It seems that the police returned the search warrant as the bag was not with Rairikar. He had already produced the bag before the police. This production took place in the background of the intimation given by Rairikar to the police that the leaflets or pamphlets were hurled at the time of the function, that the bag of Wavikar was found in the hall and that though attempts were made a deliver the bag after seeing the contents thereof. Wavikar did not choose to open the bag on the pretext that the keys were not with him and hence the bag was produced before the police.
4. It seems that the Magistrate, therefore, sent a memorandum to the police that the bag that was with them should be produced before the Court. That memorandum was replied to by the police ad a copy of that reply is at Ex. E. It is this reply that gives the abovementioned details as to how the bag was produced by Rairikar before the police.
5. At this juncture, I would also like to state in brief the nature of the leaflet that was hurled in the hall on 27th January, 1978. A copy of the leaflet is attached to the man petition. Apart from certain minor allegation, it is stated in the leaflet that the false dealings in the accounts of the Students' funds should be stopped; that the Vice-Principal should stop exploiting students in tuitions. A query is made in the leaflet as to what was that rate of admission per student in 11th and 12 standard. There is another query as to how much the Principal and Vice-Principal earn from such collections. There is an insinuation that the question papers have been disclosed or revealed to those students who have accepted the tuition of the staff members of the college. Another suggestion is that a huge amount has been earned from the annual 11th examination in an illegal manner.
6. The reply that was sent by the police to the Magistrate has stated that the said leaflet did not bear the name of the printer and that this constituted an offence under the Press and Registration of Books Act, 1867. It is also stated in the reply that a separate application was being made to the Magistrate under Section 155 of the Code of Criminal Procedure for getting permission to investigate that offence which is a non-cognizable offence. The police, therefore, informed the Magistrate that the leaflets that were found in the bag were retained by the police and that the bag and the rest of its contents have been produced before the Magistrate.
7. The case was fixed for appearance and hearing on 23rd March 1978. On that date, Rairikar and Rajarshi made an application to the Magistrate that their personal appearance may be exempted as both of them would find it difficult to attend the Court during the months of April, May and June 1978. This was due to their duties as the Heads of the institution. A copy of that application is at Annexure G. The Magistrate passed an order that the grounds given by Rairikar and Rajarshi were not sufficient to claim exemption but a long date was given by the Magistrate.
8. In due course, the Magistrate recorded the evidence of Wavikar and his one witness Bhandari. Copy of that evidence is at Annexure H. Wavikar has given version somewhat consistent with his allegations in the complaint while Bhandari has stated that the bag that was kept by Wavikar in the hall was being attended to by Bhandari and that Vinod Singh snatched the bag. The learned Magistrate then considered the question as to whether a charge should e framed against the accused on this evidence. The Magistrate, thereafter, framed charge against Rairikar, Rajarshi and Vinod Singh for having committed an offence under Section 379 read with Section 34 of the Indian Penal Code. The applicants have come to this Court for quashing the said charge.
9. The question as to under what circumstances a charge has to be framed in a private case has been dealt with by Sections 245 and 246 of the Code of Criminal Procedure. Under Section 245, the Magistrate has to discharge an accused person if he comes to a conclusion that no case has been made out which, if unrebutted, would warrant a conviction. Section 246 lays down that the Magistrate would frame a charge if be is of the opinion that there is ground for presuming that the accused has committed offence. These provisions are practically similar to Sections 227 and 228 of the Code of Criminal Procedure which deal with the discharge and framing of a charge by the Sessions Court. Mr. Hegde for opponent No. 1 relied upon a decision of the Supreme Court in State of Bihar v. Ramesh Singh, . The relevant head-note reads as follows :
"Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction."
Mr. Rane for the applicants does not challenge the abovementioned legal position. He, however, drew our attention to the following observations of the Supreme Court in paragraph 4 of the Judgment :
"If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable ....."
Mr. Rane frankly stated that if there is prima facie evidence as contemplated by Sections 245 and 246 of the Code of Criminal Procedure, the framing of a charge would be quite legal. His grievance is that the complainant as also the evidence led by Wavikar is of such type that no conviction would be possible even if that evidence is accepted in its entirety. According to him, it is for this reason that the applicants have approached this Court with a prayer that the inherent powers under Section 482 of the Code of Criminal Procedure be exercised for quashing the proceedings.
10. The exact scope of the inherent powers of the High Court has been considered by the Supreme Court in the case of R. P. Kapur v. State of Punjab . I would like to reproduce the following relevant headnote :
"Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are :
(i) ....................
(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report of decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge ........"
The Supreme Court, in the recent case of Madhu Limaye v. State of Maharashtra, , has also held as follows :
"..... Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assaulted is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction."
It would, therefore, be necessary to find out as to whether the applicants have made out a case that the inherent powers of this Court should be exercised for quashing the proceedings including the framing of the charge.
11. Mr. Rane for the applicants contended that this is one of those specimen cases where responsible citizens, who have done nothing objectionable, have been subjected to harassment of facing a criminal trial initiated at the instance of a person who is bent upon downgrading the reputation of Rairikar and Rajarshi and of the institution to which they belong. According to him the entire episode as alleged by the complainant Wavikar would not constitute any offence even if the version given by Wavikar in the complaint and in the witness box is accepted to be true. We have already referred in a nutshell to the allegations made against Rairikar, Rajarshi and Vinod Singh. Mr. Rane contended that these allegations would not constitute any offence. As against that Mr. Hegde appearing for Wavikar argued that the allegations in the complaint as well as the evidence of Wavikar and Bhandari would give sufficient grounds for the Magistrate to frame a charge against the accused.
12. It would be desirable to briefly state the complained allegations as well as the evidence that has already been adduced before the learned Magistrate. I have already stated in para 3 above some recitals in the complaint. In addition, the following portion in para 3 of the complaint is relevant :
"The same day in the evening my father who is the Secretary of the State Transport Corporation, received a telephone call from accused No. 1, stating that he was in possession of my bag and that my father should see accused No. 1 in this connection. My father gave a telephone call to accused No. 1 when he was told that accused No. 1 was not in the college. But I personally went to see accused No. 1 and accused No. 1 was in the college ....... When I demanded my bag, accused No. 1 refused to give the same saying that it contained the pamphlets which were hurled in the hall, I told accused No. 1 that my bag was containing L.I.C. papers and other article belonging to me. I did not have any connection with the said pamphlets. Subsequently, I came to know from my friend that it was accused No. 3 who is a notorious student of the said college and having previous history with the police, put the said pamphlet in my bag in order to involve me."
Now let us see as to what Wavikar has stated in the witness box. The relevant part of his evidence reds as follows :
"........ When I went, the hall was full, hence I went and sat on the last bench. It kept my bag with my friend Vasant Bhandari and went to the front row to talk to my ex-teachers. This was at about 4 p.m. At that time one dance programme was going on and the next item was the formal function. Dr. Vasantrao Hoshing was the Chief Guest. At that time some leaflets were thrown from the first floor of the hall. I did not pay attention to the leaflets. After a quite long time I went back to my original place. I did not see my friend nor my bag. I made enquiries when some friends told me that Vasant Bhandari might have gone away. I though that he must have taken away my bag with him. Hence I went home. When I came home, my father received a telephone call from accused No. 1 My father is the Secretary of Maharashtra State Road Transport Corporation. Accused No. 1 phoned to my father that my bag was with accused No. 1 and my father should see accused No. 1 on the next day ........"
On the next day Wavikar went to the college and this is what he has deposed as to what happened there :
"I told accused No. 1 to return my bag as my L.I.C. papers were inside the bag. Accused No. 1 told me that the leaflets which were thrown in the hall on the previous day were in the bag, hence the bag could not be returned to me .......... When I came out of the chamber I met my friend Vasant Bhandari. I asked him, how my bag which I had kept with him had gone to accused No. 1. He told me that accused No. 3 went with a group of his friends and took away my bag in spite of his protests."
In the same evening the father of Wavikar and gone to accused No. 1 and Wavikar had deposed as follows in respect of that meeting :
"Accused No. 1 told my father that he wanted to open the bag in his presence. My father told accused No. 1 that the bag could be opened as the keys were with the bag. Accused No. 1 told that the keys were not there and a locksmith would be required to open the bag. My father told accused No. 1 that the bag could be opened with any VIP key of similar bag ........."
As far as the evidence of Vasant Bhandari is concerned, suffice it to say that he had made a general statement that accused No. 3 snatched the bag from Bhandari's hands in spite of Bhandari's protest.
13. It is this evidence on the basis of which the learned Magistrate has framed the charge against all the three accused under Section 379 read with Section 34 of the Indian Penal Code. The grievance of Mr. Rane is that the entire incident as deposed to by Wavikar and his friend Bhandari does not indicate he commission of any offence of theft. One of the import ingredients of the offence of theft is that there should be an element of dishonesty in taking or removing the movable property of another. Section 24 of the Indian Penal Code defines as follows the term 'dishonestly' :
"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly'."
The term wrongful loss is defined in Section 23 to mean, "loss by unlawful means of properly to which the person losing it is legally entitled." Similarly, wrongful gain means, "gain by unlawful means of property to which the person gaining is not legally entitled." Thus the important factor, as far as the present case is concerned, is that here must be a dishonest intention on the part of or any of the accused to have wrongful gain of the property viz., VIP bag to themselves or to somebody else or to cause unlawful loss of that VIP bag to the complainant Wavikar. It may be noted that Wavikar has himself alleged in the complaint as also in the witness box that accused No. 1 had given a phone message to the father of Wavikar that that the father should come and see accused No. 1 in connection with that bag. This conduct is inconsistent with the dishonest intention contemplated by Section 378 of the Indian Penal Code. That conduct itself would show that the alleged action on the part of all or any of the accused would not constitute any offence. It seems that the Principal and the Vice-Principal of the collage wanted to see the contents of the bag as they apprehended that he bag would also contain some copies of the leaflets which were hurled in the hall. This intention is so explicitly clear from the insistence on the part of the Principal that Wavikar should take away the bag after it was opened and the contents were seen. In my opinion, this insistence would be an honest desire on the part of the college authorities to find out as to whether Wavikar has any concern with the leaflets. The said action of Rairikar is nothing but he exercise of his authority as the Principal of the college in order to find out whether Wavikar had any hand in the distribution of leaflets. However, the complainant Wavikar, for no good reason, rushed to the criminal Court with an allegation that the Principal, Vice-Principal and a student has committed theft of the bag.
14. It was contended by Mr. Hegde that the bag did not contain any of the leaflets and that all the three accused had a desire to introduce or foist those leaflets in the bag with a view to make out a case that it was Wavikar who was responsible for throwing the leaflets in the hall. This submission is nothing but an imagination particularly when there was no such specific allegation in the complaint or in evidence.
15. As to how the college authorities viz., the Principal took action in connection with the bag would be another circumstance to find out as to whether there was any possibility of a dishonesty as contemplated by Section 378. I have already observed that the Magistrate had sent a memorandum to the police for producing the bag. This was done after the warrant that was issued against accused No. 1 was returned as the bag was in the meantime already forwarded by accused No. 1 to the police. By the report at Annexure E, the police officer informed the Magistrate that on 30th January 1978, Rairikar, the Principal of the college has conveyed to the police that certain leaflets were thrown in the hall and that they did not contain the name of the printer, on 31st January 1978, the Principal again informed the police that a VIP bag belonging to Wavikar was there and that Wavikar had refused to open the same on the ground that he did not have the keys. Two Sub-Inspector, Lembhe and Vaz went to the college a Wavikar had informed that his father would be visiting Principal's office at a specified time. The father did not turn up. However, Wavikar was present. He told the Principal that he did not have the keys. Principal therefore sealed the VIP bag and handed it over to the police along with a letter dated 31st January 1978. With these fats, the police officers informed the Magistrate that they intended to take cognizance of an offence under Section 3 read with Section 12 of the Press and Registration of Books Act for not printing the name of the printer on the leaflet and that necessary application for seeking the permission to investigate this non-cognizable offence was being made. The bag and the rest of the contents were produced by the police before the Magistrate. All this has happened on the same day on which Wavikar had filed complaint be for the Magistrate. I am making mentioned of this fact for the purpose of showing as to how apart from the absence of any circumstances to suggest dishonest intention on the part of the accused, there is a positive indication that the accused had an honest intention of proceeding further with the bag according to law.
16. All this incident has been made the subject matter of a complaint by Wavikar and I am constrained to observe that an honest action on the part of the college authorities is tried to be twisted by making an allegation of an offence of theft. Of course, if in law such an action would constitute theft, Wavikar would be within his rights to proceed against the college authorities or anyone else. But as discussed above, the complaint made by Wavikar as well as evidence led before the Magistrate is of such a type that even if all that material is accepted to be true still there would not be any case of theft against the accused. In fact, I am satisfied that the complainant has grossly abused the process of law by launching such type of complaint with respect to an event or incident which cannot constitute an offence by any stretch of imagination. The complainant Wavikar has not alleged in the complaint or in the evidence that any of the accused had a dishonest intention as required to constitute an offence of theft. It was rightly urged on behalf of Rairikar and Rajarshi that Wavikar had to audacity to file a complaint of theft with respect to a matter which is so innocuous that no person of ordinary prudence would have even thought of taking such an action. In my opinion, this is a fit case in which it is absolute necessary to exercise inherent powers to quash the proceedings that they constitute an abuse of legal process. I may also state that the allegations and the evidence, even if accepted, do not constitute any offence.
17. Before concluding, I may also refer to comment that is made by Mr. Rane as regards the manner in which the Magistrate has refused to grant exemption from personal attendance. Annexure G which is the copy of the application made by the Principal and the Vice-Principal that on account of their duties, they would find it very difficult to attend the Court during the months of April, May and June. They therefore prayed that their personal attendance may be exempted. The Magistrate rejected that application by holding that no sufficient grounds have been made out. I think that the Magistrate would have done well if personal exemption would have been granted to the Principal and the Vice-Principal of the college who were to be busy in their educational activities in these three months of April, May and June.
18. After we heard the arguments on behalf of both the sides and after I started delivering judgment, it was suggested to us that the matter may be closed so that the reputation of the college authorities would not be hampered and at the same time the career of the complainant Wavikar may not be spoiled. The learned Advocates for Wavikar, Rairikar, Rajarshi and Vinod Singh have filed in this Court a writing. By that writing Wavikar has expressed deep regrets and tendered an unconditional apology to Rairikar, Rajarshi and Vinod Singh and in view of that unconditional apology, then have agreed and assured to this Court that they shall not file any civil or criminal proceedings against Wavikar in respect of the allegations made in the criminal case in question. The said writing be kept on record as no separate order thereon is necessary.
19. The result is that the rule has to be made absolute. The proceedings in Criminal Case No. 36/S of 1978 before the Metropolitan Magistrate, 6th Court, Bombay, including the framing of the charge deserve to the quashed.
Mehta, J.
20. I have heard the judgment delivered by my learned brother and the order passed by him and I agree with all the conclusions and the order passed by my learned brother. I, however, wish to add a few remarks with a view to highlight the progress of this litigation in the Court of the learned Metropolitan Magistrate.
21. On 31st January 1978 the Complainant filed a Criminal Complaint in the Court of the learned Metropolitan Magistrate, 6th Court, Mazgaon, against Accused No. 1 the Principal of the Lala Lajpatrai College; Accused No. 2, the Vice-Principal of the college and Accused No. 3 a student studying in the same college. The Complainant charged all the three Accused of theft under Section 379 read with Section 114 of the Indian Penal Code. The gravamen of the charge levelled by the Complainant was that on the 27th day of January 1978 he attended the College Day function of the Lala Lajpatrai College held at the Shanmukhananda Hall. He went to the hall a little late and could find a seat only in the last row of the hall where he left a bag which he has described as the VIP bag. Leaving the bag in the care of a friend, he then went to the other parts of the hall at which time he saw certain pamphlets being hurled from the first floor gallery of the hall. He, however, paid no attention to the pamphlets. Later, when he returned to his seat. He found his bag missing. He did not find his bag near his seat and after making some search he returned home. Later, on the same evening, Accused No. 1 rang up the Complainant's father and informed him that Complainant's bag was in his possession and Accused No. 1 called upon the Complainant's father to meet him the next day. On the next day the Complainant went to the college when he came to learn that the bag was in the possession of Accused No. 1. He thereupon went to see Accused No. 1 but found Accused No. 1 closeted in his room with Accused Nos. 2 and 3. When he demanded the bag, Accused No. 1 refused to deliver the same to him, saying that the bag contained the objectionable pamphlets which had been hurled in the hall the previous day. Complainant told Accused No. 1 that the bag did not contain any objectionable matter but only papers belonging to the L.I.C. of which he was an Agent. The Complainant then stated that he came to learn from his friend that Accused No. 3, who was a notorious student, had put the pamphlets in his bag in order to involve and incriminate him. The Complainant stated that he had been demanding the return of the bag from Accused Nos. 1 and 2 and they had been denying him the same. On these facts, the Complainant filed a complainant under Section 379 read with Section 114 of the Indian Penal Code as aforesaid. The learned Metropolitan Magistrate Mr. C. V. Moholkar was pleased to issue a Writ of Summons against all the three Accused. There was also a prayer in the Complaint for a Search Warrant to be issued in respect of the Principal's room in the college. This prayer, however, was denied by the learned Magistrate. It may only be stated here that the Complainant stated in paragraph 3 of the Complaint that on the very day he found the bag missing, Accused No. 1 the Principal and telephoned his father to say that the bag was in his possession and that the Complainant's father should see him in that connection. It is difficult to understand where the element of theft crept in.
22. On the next day, i.e. on 1st February 1978 the Complainant filed another Application and repeated the prayer for a Search Warrant of the Principal's room by the police. The fresh Application was entertained by the learned Metropolitan Magistrate Mr. R. D. Chandavarkar who, thereafter, was in charge of the case till the framing of the charge. All that the Application of the Complainant stated was that the bag was lying in the custody of Accused No. 1 at Lala Lajpatrai College and he, therefor, prayed for a Search Warrant. No new or fresh grounds had been set out. Strangely enough, although this prayer had been denied only a day previously by the learned Magistrate's predecessor, the learned Magistrate Mr. Chandavarkar was pleased to order the issued of a Search Warrant as prayed for. Pursuant to this Order, two Police Offices S.I. Lambhe and S.I. Vaz visited the College premises, accompanied by the complainant, and questioned Accused No. 1. The effect of the Complainant, an ex-student of the college, accompanied by the Police Officers entering the College premises with a Search Warrant to search the room of the Principal, on the mind of the other students, can only be left of the imagination. The principal, however, informed the Police Officers that the bag had already been handed over to the Police Officers of the S.B., C.I.D. a day earlier. It may be mentioned that the fact of the bag having been opened in the presence of panchas on 2nd February 1978, and the finding of as many as 345 of the pamphlets in the said bag can be found in the Report of the Police Officer presented to the learned Metropolitan Magistrate.
23. However, to resume with progress of the complaint, on the 3rd February 1978, the Inspector of Police, S.B., C.I.D. made an Application to the same learned Magistrate under Section 155 of the Criminal Procedure Code seeking permission to investigate the source of the pamphlets, i.e. the printer, since the pamphlets did not contain the name of the printer. This Application was dismissed by the learned Magistrate with a cryptic order which is reproduced below :-
"The allegations are of political nature n a college. The offence is not of serious nature. The aggrieved party can file a private complaint if desired. Not a fit case for the Special Branch (C.I.D.) to investigate. Hence request rejected.
It may be stated for the purpose of the record that the State filed a Criminal Revision Application against the said Order of the learned Magistrate. However, the Application was dismissed in limine by this Court.
24. On 23rd of March 1978, Accused Nos. 1 and 2 filed an Application before the same learned Magistrate with a prayer that they may be exempted from personal attendance in view of the ensuing examinations to be held in the months of April, May and June. This apparently innocuous request was turned down by the learned Magistrate on the ground that these wee not sufficient grounds for claiming exemption. The learned Magistrate was pleased to grant only a longer date.
25. On 10th August 1978 and on 24th August 1978 the Complainant examined himself and one Vasant Bhandari. In his evidence the Complainant repeated most of the fact contained in his Complaint save and except one fact which was introduced in his evidence to the effect that he had been informed that Accused No. 3 had snatched the bag from the possession of his friend Vasant Bhandari. Bhandari was examined for the purpose of corroborating this fact. On the basis of the complaint referred to above and on the basis of the evidence, the learned Magistrate Mr. Chandavarkar was pleased to frame a charge. Under Section 246 of the Code of Criminal Procedure, if the learned Magistrate was of the opinion that there was ground for framing a charge that the Accused had committed an offence triable under Chapter 18, he was at liberty to frame a charge in writing against the Accused. Both on a perusal of the Complaint as well as the evidence one fact became clear and that was that Accused No. 1 was in no way involved with the disappearance of the bag from the Hall and that the bag had been handed ever to Accused No. 2 by Accused No. 3 in the Hall. Further, from the Complaint as well as the evidence of the Complainant, it was also evident that Accused No. 1 had on the very same day given a telephone message to the father of the Complainant informing him that the bag was in his possession and further that the Complainant's father should meet Accused No. 1 on the next day. It is, therefore, difficult to find any element of theft in the act of Accused Nos. 1 and 2. An act would constitute theft if a person had dishonestly moved a property out of the possession of the other person without that person's consent. Neither Accused No. 1 nor Accused No. 2 had anything to do with the removing of the bag from the premises of the Hall. Realising the difficulty in his way, the Complainant charged Accused Nos. 1 and 2 with abetment.
The learned Magistrate, however, was pleased to frame a charge under Section 379 red with Section 34. Now, it may be pointed out that for the purpose of proving common intention, there must be prior meeting of minds or a preconcert and neither the Complaint nor the evidence of the Complainant speaks anything with regard to any intention or any facts which would even remotely suggest common intention. In these circumstance, it is obvious that there is no case against the Accused which had been made out which, if unrebutted, would warrant their conviction. We are firmly of the view that there was no material whatsoever on record to warrant the framing of the charge against the Accused Mr. Hegde has argued with some vehemence that even if the Complainant had not made out a case of theft against Accused Nos. 1 and 2 or even sharing of any commons intention with Accused No. 3, a prima facie case of theft had been made out against Accused No. 3. We fail to see the reasoning behind this submission. Assuming the facts as stated in the Complainant and evidence to be true, and I have proceeded all alone on that footing, all that Accused No. 3 had done was to remove the bag from the premises of the hall and to hand the same over to Accused No. 1, the lawful authority of the College. We, therefore, fail to see any intention on the part of Accused No. 3 to cause wrongful gain to himself or wrongful loss to the Complainant. On the record. which we have scrutinized and scanned with some care, it becomes apparent that between 27th January 1978 and 31st January 1978 Accused No. 1 had on several occasions requested both Complainant and his father to produce the keys of the bag and to open the same in his presence with a view to ascertain the contents of the bag. This situation, both the Complainant and his father, appear to have avoided on one ground or the other. Ultimately, realising that Accused No. 1 had taken a serious view of the matter, and in order to forestall Accused No. 1 from approaching the Police in the matter and handing over the bag to them, the Complainant thought fit to file this Complaint involving Accused No. 1, the Principal and Accused No. 2, the Vice-Principal. It was natural for Accused Nos. 1 and 2 to take a serious view of the distribution of the scurrilous pamphlets which alleged corruption, irregularity and misappropriation in the affairs of the College by Accused No. 1 and Accused No. 2. It was equally natural for then to make efforts to find out the source from which these pamphlets emanated. In order to stay the hands of Accused Nos. 1 and 2, the Complainant filed the present Complaint involving the Principal and the Vice-Principal. I have no hesitation in coming to the conclusion that this is a mala fide Complainant, filed vexatiously in order to restrain the College Officials from carrying out their duties. It is, therefore, necessary that the inherent powers of this Court under Section 482 should be exercised and the further proceedings be quashed. I am of the view that the Complainant has grossly abused the process of this Court and the intervention of the Court at this stage is called for.
26. In this unfortunate and distressing sing episode involving the misuse of the machinery of the administration of justice there is only one redeeming feature and that is that the Complainant has at this late stage realised the error of his ways and has seen the light of reason. He has placed on record his unconditional apology to Accused Nos. 1 and 2 who have graciously accepted the same.
27. In the result, the Rule is made absolute. The charge framed by the learned Magistrate as well as the entire proceedings are quashed.
28. Order accordingly.