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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE AND K.K. SONAWANE, JJ.
Alka Udhav Khaire and Ors. - Applicants
Versus
State of Maharashtra and Ors. - Respondents
CRIMINAL APPLICATION NO. 4878, 5680 OF 2016
Decided On : 17-04-2017
The primary object of the FIR from the point of view of the informant is to set the criminal law in motion and for investigating officer is to obtain information about the alleged criminal activity, so as to enable him to trace out and book the culprit.
It is true that there has to be FIR under Section 154 of Criminal Procedure Code about the commission of cognizable offence and if the officer-in-charge of the police station refuse to record the information, the remedy is available to the aggrieved complainant to approach to the higher authority of police under Section 154(3) of Criminal Procedure Code. But, the failure to comply with the procedural formalities under Section 154(1) or 154(3) would not divest the jurisdiction of the Magistrate under Section 156(3) of Criminal Procedure Code.
In view of the peculiar facts and circumstances of the case, nature of the allegations nurtured against the applicants as well as the factual aspect that the complainant launched offensive against the applicants and appeared before this Court in person, non-compliance of the provisions of Section 154(1) and 154(3) of Criminal Procedure Code would not be an impediment for exercise of discretion under Section 156(3) of Criminal Procedure Code. 2010 (1) Mh LJ 241 (FB)-Followed.
Criminal Procedure Code, 1973 - Section 197-Indian Penal Code, 1860, Section 21-Grant of- Sanction to prosecute.-Since act or omission on part of accused, an employee of Municipal Council is not connected with discharge of official duties of public servant hence sanction to prosecute them is not necessary.
The essential requirement for sanction in terms of Section 197 of Criminal Procedure Code to prosecute the public servants is that offences levelled against public servant must have been committed while acting or purporting to act in discharge of his official duty. It is not every offence committed by public servant that requires prosecution sanction as contemplated under Section 197 of Criminal Procedure Code.
It is the quality of the act done by the public servant while discharging his official duties which is important and same is decisive factor for requirement of prior sanction to prosecute the public servant. After considering the nature of allegations, if it falls within the ambit of his official duties, the protection under Section 197 of the Criminal Procedure Code will be made available to the public servant, but, where the alleged act or omission is unconnected with the official duties of the public servant, then the shield of Section 197 cannot be extended to such public servant, who committed the act contrary to law.
The ultimate object for protection conferred under Section 197 of Criminal Procedure Code is the public interest with a view that official acts do not lead to vexatious or frivolous prosecution of public servant.
Indian Penal Code, 1860 - Sections 406, 420, 409, 468, 471 and 477-Criminal Procedure Code, 1973, Sections 156 and 482-FIR for offences under.-FIR containing allegations prima facie constituting offence against accused persons cannot be quashed and set aside.
In the above premise, Court is not inclined to nod in favour of applicants for quashing the impugned FIR filed against them. The allegations contained in the FIR, prima facie, constitute cognizable offence against the applicants. The very nature of offence lodged against the applicants would not be considered as part of the official duties of the applicants/public servants. Therefore, prior sanction in teams of Section 197 of Criminal Procedure Code is not required to initiate criminal case against the applicants/public servants. The enquiry about the correctness or veracity of the allegations is not amenable within the jurisdiction of the Court while exercising the inherent powers under Section 482 of Criminal Procedure Code. In view of the peculiar circumstances of the matter the non-compliance of the provisions of Section 154(1) or 154(3) would not divest the jurisdiction of the Magistrate to exercise powers under Section 156(3) of Criminal Procedure Code. The ultimate object of registration of crime is to collect the evidence and file report under Section 173 of Criminal Procedure Code.
In such circumstances, Court does not find any merit in the objections raised on behalf of the applicants to quash and set aside the impugned FIR. In sequel, the application being devoid of merit stands dismissed. Rule is discharged. In view of aforesaid discussion, Criminal Application No. 5680 of 2016 also stands disposed of. No orders as to costs. An observations made herein above are prima facie in nature and confined to adjudication of present application only.
Counsel appearing for the applicants, after pronouncement of judgment, prays for continuation of the ad-interim relief which was in force during pendency of this application, for further four weeks. The prayer is vehemently opposed by the A.P.P.
Since the investigation is in progress and it is not desirable to stay filing of the charge-sheet, Court is not inclined to entertain the prayer for continuation of interim relief for further four weeks. Hence said prayer stands rejected.
K.K. SONAWANE, J.
1. Rule. Rule made returnable forthwith. Heard finally with the consent of counsel appearing for both sides.
2. This application is preferred by the applicants invoking remedy under Section 482 of Cr.P.C. read with Articles 226 and 227 of the Constitution of India and thereby prayed to quash and set aside the impugned FIR bearing Crime No. 199 of 2016 registered under Sections 406, 409, 420, 468, 471, 477 r/w. 34 of IPC at police station, Partur, Dist. Jalna. The impugned FIR came to be registered pursuant to the directions of the learned Magistrate under Section 156(3) of the Cr.P.C. issued in a private criminal complaint filed under Section 200 of the Cr.P.C. by the respondent No.2 Dr. Ramprasad Mohanlal Porwal.
3. It has been alleged that the applicants being employee of the Municipal Council, Partur have indulgence in the offence of forgery for the mischief of cheating and misappropriation of public funds and thereby committed the Criminal Breach of Trust etc. According to respondent No.2/complainant, in the year 2013-14, there were two vehicles of the Municipal Council, Purtur for public utility services. The applicant No.2 Shri Manohar Tunganwar, Sanitary Inspector, used to maintain the log book of these vehicles. The applicant No.1 Smt. Alka Khaire was the Chief Officer of the Municipal Council, Partur during the relevant period of year 2013-14 and applicant Nos. 3 and 4 were the drivers deputed on these vehicles of the Municipal Council.
4. The respondent No.2/complainant ventilated the grievances that under the Right to Information Act, he procured the relevant documents of log book and the fuel purchased for the vehicles of Municipal Council as well as the amount paid to the concerned dealer for supply of fuel. It was transpired that in the year 2013-14, the Municipal Council purchased the fuel/diesel for these two vehicles of quantity 3310 liters and as per the log book, both the vehicles were shown used for a distance of 1862 Kilometers. According to respondent No.2/complainant, the quantity of fuel purchased and the distance of the vehicle being driven, indicate that these two vehicles of the municipal council consumed about 1.5 liters fuel per kilometer, throughout the year which is highly improbable and suspicious one. Moreover, the record of the Municipal Council demonstrate that the payment of Rs. 8,76,161/- was paid to Sandip Automobiles towards purchase of fuel for the two vehicles. These suspicious circumstances reflect the foul play on the part of the applicants. It has been alleged that the applicants in connivance with each other, for wrongful gain or monetary benefits, caused loss to the Government and public, by committing the mischief of cheating. Therefore, respondent No.2 Dr. Porwal approached to the learned Magistrate Partur and filed private criminal complaint under Section 200 of the Cr.P.C. bearing Criminal Misc. Application No. 172 of 2016 for requisite directions to investigate into the allegations under Section 156(3) of Cr.P.C. The learned Magistrate, verified the allegations as well as relevant documents on record and bade the police of Partur Police Station to investigate under Section 156(3) of Cr.P.C. Pursuant to the directions of the learned Magistrate, the Partur police registered the FIR bearing Crime No. 199 of 2016 and set the investigation into motion. The validity and propriety of the impugned FIR is put into controversy on behalf of applicants in the present application.
5. Mr. Ghadge, learned counsel for the applicants, vehemently submitted that the allegations nurtured on behalf of respondent No. 2/complainant are false, baseless and rest on the figment of imagination. The allegations are so absurd and inherently improbable to draw the inference of mischief of forgery and cheating on the part of the applicants. The complainant did not comply with the basic requirement of law as contemplated under Section 154 of the Cr.P.C. He had not approached to the pol
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