1. Jawaharlal Darda Education Society, Yavatmal, is a registered Society/Public Trust running educational institutions. Shri Kishor Sureshchandra Darda is the Secretary of the said society. Shri Prakash Dhanraj Chopda is the President of the society. Shri Vijay Jawaharlal Darda, the ex-President of the society and a Sitting Member of the Parliament, is now the Trustee of the Trust. Shri Rajendra Jawaharlal Darda is the Vice President of the society who was also Cabinet Minster of the State Government in the last government. Devendra s/o Vijay Darda and Rushi s/o Rajendra Darda, the sons are also the trustees of the said trust along with Kirti Dhanraj Gandhi. Ashok Shankarrao Chauhan was the then Chief Minister of the State of Maharashtra. For brevity, the criminal applications filed by them, which are being disposed of, by this common judgment, are specified as under:-

2. Criminal Application (APL) No.469/2011 is filed by

Kishor s/o Sureshchandra Darda:-

Respondent no.2 - Digamber Haribhau Pajgade resident of Yavatmal filed a complaint under various Sections i.e.120-B/34, 420/34, 468/34, 447/34, 474/34, 466/34 and 166/34 of Indian Penal Code in the Court of Chief Judicial Magistrate, Yavatmal, which was registered as Regular Criminal Case No.406/2011 and in which in all 18 accused were named including the above persons. The learned Magistrate, by making impugned order, rejected the request for issuance of direction under Section 156(3) of the Code of Criminal Procedure (“Code”) against accused no.11 Joseph Imanuil and Shri Prithviraj Chavan, the then Chief Minister but directed the investigation against others i.e. 01 to 10 and 12 to 17 arrayed as accused in the said complaint by his order dated 25.8.2011. It is that order, which is under challenge, in these various applications. Since the order is one and though the applicants are different with different criminal applications filed in this Court, they were taken up together for final disposal, particularlybecause, they have been pending since the year 2011 in this Court with interim orders operating therein.

ARGUMENTS:

3. Criminal Application (APL) No.542/2011 is filed by Ashok Shankarrao Chavan:-

Shri S.V. Manohar, the learned Advocate for the applicant in this case, made the following submissions:-

[i] In the complaint that was filed by respondent no.2 before the Magistrate, the only allegation against the applicant, who was the Ex-Chief Minister of the State of Maharashtra is that, acting as a Chief Minister, having portfolio of Urban Development Department, he made orders on 7.10.2009 and 23.06.2010, etc., for regularization, relaxation etc., in respect of alleged encroachments made by the Jawaharlal Darda Trust without any authority or in violation of the Rules and Regulations and recommendations made by the subordinate officers and in contravention to the wishes of the plot holders, who have their houses in the colony. He submitted that as a Head of the Department of the Urban Development and Minister thereof, he has had an authority and power to make the order of regularization and accordingly in exercise of that power he made those orders of regularization which was his function and duty, but the same cannot be the subject matter of a criminal case.

[ii] The orders made by the applicant, the then Chief Minister, for regularization of the alleged encroachments in the open spaces in the colony of the Housing Society by constructing the school have not been declared to be illegal or invalid or without any authority by any Competent Court of law or the authority and on the contrary even now those orders stand as they are and, therefore, there was no cause of action for setting the criminal law in motion at the instance of respondent no.2, who is busy body and a court-bird and he is having habit of filing cases after cases against many persons with ill-motives. At any rate, till the time the orders made by the applicant in the matter of regularization are not declared