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2017 Supreme(Bom) 1879
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, MANGESH S. PATIL, JJ.
Avinash Trimbakrao Dhondage – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPLICATION NO.246, 1641, 3928 OF 2017, CRIMINAL APPLICATION NO.7063 OF 2016
Decided on : 17-11-2017
Advocate Appeared:
For the Appellant :Mr. N.B.Khandare, Advocate
For the Respondent:Mr. S.P. Deshmukh, Mr. S.S. Thombre, Advocate, Shankar Vitthalrao Totawar
Headnote:
Section 482 - Criminal Procedure Code - 156(3) - 154 - 197 - 34 IPC - 409, 420, 467, 468, 471, 166, 167 - The court discussed the application of Section 156(3) of the Cr.P.C., the requirement of compliance with Section 154, the necessity of previous sanction under Section 197 of the Cr.P.C., and the need for an affidavit in support of a complaint under Section 156(3). The court also considered the legal principles established in the cases of Lalitha Kumari, Anil Kumar, Maksud Saiyed, Priyanka Srivastava, and Bhajan Lal. The judgment emphasized the importance of application of mind by the Magistrate while passing orders under Section 156(3) and the limited scope of inquiry at the quashment stage. The court also highlighted the need for a detailed and elaborate order by the Magistrate and the requirement of prior compliance with Section 154 of the Cr.P.C. before invoking the powers under Section 156(3). The judgment further emphasized that the absence of previous sanction under Section 197 of the Cr.P.C. does not preclude prosecution of public servants for criminal acts not done in discharge of their official duties. The court also noted that the absence of an affidavit in support of a complaint under Section 156(3) does not vitiate the order if passed before the judgment in Priyanka Srivastava. The judgment cited the case of HDFC Securities Limited to support the view that the inherent powers of the court under Section 482 of the Cr.P.C. should be sparingly used.
Fact of the Case:
The applicants sought quashing of an order directing investigation under Section 156(3) of the Cr.P.C. and the FIR registered based on the order. The applicants were public servants accused of misappropriation of government funds and forgery in allocation of work contracts. The court considered the allegations, previous administrative inquiry, and the report of the Investigating Officer.
Finding of the Court:
The court found that the impugned order was passed after application of mind by the Magistrate, and there was prima facie substance in the allegations against the applicants. The court emphasized the limited scope of inquiry at the quashment stage and the need for detailed and elaborate orders by the Magistrate. The court also noted that the absence of previous sanction under Section 197 of the Cr.P.C. does not preclude prosecution of public servants for criminal acts not done in discharge of their official duties.
Issues: Application of Section 156(3) of the Cr.P.C., compliance with Section 154, necessity of previous sanction under Section 197 of the Cr.P.C., need for an affidavit in support of a complaint under Section 156(3), and the limited scope of inquiry at the quashment stage.
Ratio Decidendi: The court emphasized the importance of application of mind by the Magistrate while passing orders under Section 156(3) and the limited scope of inquiry at the quashment stage. The court also highlighted the need for a detailed and elaborate order by the Magistrate and the requirement of prior compliance with Section 154 of the Cr.P.C. before invoking the powers under Section 156(3. The court further emphasized that the absence of previous sanction under Section 197 of the Cr.P.C. does not preclude prosecution of public servants for criminal acts not done in discharge of their official duties.
Final Decision: The applications were rejected, and the rule was discharged. The court refused to continue the adinterim relief, stating that it may amount to interference in the investigation, which is the exclusive domain of the Investigating Officer.
Mangesh S. Patil, J.
Rule.
The Rule is made returnable forthwith.
With the consent of both the sides the matter is heard finally.
2. In all these applications filed under Section 482 of the Criminal Procedure Code (hereinafter referred to as 'the Cr.P.C.') the respective applicants are praying for quashing the order passed by the learned 6th Judicial Magistrate First Class, Nanded in Miscellaneous Criminal Application No.367 of 2013 filed by the present Respondent No.2 directing an inquiry to be made in pursuance of the order passed under Section 156(3) of the Cr.P.C. They are also seeking to quash and set aside the FIR bearing Crime No.157 of 2013 for the offences punishable under Sections 409, 420, 467, 468, 471, 166 and 167 read with Section 34 of Indian Penal Code registered in pursuance of such order passed by the learned Magistrate. Since by virtue of the same complaint and the same order the impugned FIR has been registered against each of these applicants, with a view to avoid repetition, as common questions of law and fact arise in all these applications we propose to decide them by this common judgment and order.
3. Shorn of unnecessary details the facts leadings to the filing of these applications may be summarized as under :
The applicant Shri. Avinash Trimbakrao Dhondage in Criminal Application No.246 of 2017 was the Executive Engineer of the Public Works Department at Nanded at the material time. Shri. Chandrashekhar Vasantrao Tunge was the Superintendent Engineer also posted in the Public Works Department at Nanded. The other applicants and few other employees of the Public Works Department were posted in the same office at Nanded on various posts. One Narayan Vitthalrao Aghav was the Deputy Registrar of Cooperative Societies posted at Nanded at the relevant time. Respondent No.2 herein filed a complaint with the learned Judicial Magistrate First Class by alleging that according to the Government norms and rules for allotment of contracts to Labour Cooperative Societies the Public Works Department has to forward the proposal to the Deputy Registrar of the Cooperative Societies. There are specific guidelines laid down by the State Government for allocation of such work. After following such procedure the Deputy Registrar of the Cooperative Societies recommends to the Executive Engineer and accordingly the Public Works Department enters into a work contract with such societies whose names are recommended. He further alleged that in utter disregard to such Government guidelines and norms the applicant Avinash Dhondage and all other applicants prepared a bogus recommendation letter dated 27.01.2010 and allocated work by executing agreement. Without their being any reference to such recommendation in the meeting of the concerned committee dated 27.01.2010 the work was allocated by fabricating the recommendation letter. Similarly, by indulging in forgery several other contracts were also allocated to few Cooperative Societies by resorting to under hand dealings. The works which were actually got done could not have been got done from such Labour Cooperative Societies and thus, he alleged that all these applicants and the proposed accused in furtherance of their common intention committed forgeries, used the forged documents and have committed criminal breach of trust.
4. The learned Magistrate apparently found substance in the allegations and by the impugned order directed an investigation into the complaint. The order reads as under :
Order below Exh.1 in Oth.Misc.Cri.Appln. No.367/2013
Date : 23.09.2013
01 - Perused the petition and documents annexed herewith. Heard the ld. advocate for the petitioner. After having perusal of the petition it appears that the petitioner has made allegation of cognizable offence against the accused. Compliance of Sec.154 is seen. The ld. Advocate for petitioner has submitted that mere application of Sec.156(3) of Cr.P.C. Is maintainable.
02 - The ld. Advocate for petitioner is relied u
