Bombay High Court
Suhas S/O. Navnath Suryawanshi vs The State Of Maharashtra And Anr on 9 April, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:13200-DB
appln-1996, 1047, 1048 and 1669 of 2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1996 OF 2020
Amir s/o Mohammad Shaikh
Age: 58 years, Occu.: Serving as
Nimtandar (Supervisor)
(under suspension, H.Q. at. Dy. S.L.R.,
Majalgaon, District Beed),
R/o. Sanja Chowk Near Masjid Osmanabad,
Tq. And Dist. Osmanabad. .. Applicant
Versus
1. The State of Maharashtra
Through Police Station Tuljapur,
Tq. Tuljapur, District Osmanabad.
2. Pandit s/o Tukaram Doiphode,
Age: 51 years, Occu.: Serving as
Dy.S.L.R. Tuljapur, Tq. Tuljapur,
District Osmanabad,
R/o. S. T. Colony, Tuljapur,
Tq. Tuljapur, District Osmanabad. .. Respondents
...
WITH
CRIMINAL APPLICATION NO.1047 OF 2020
Suhas s/o Navnath Suryawanshi
Age: 55 years, Occu.: Serving as
Officer Superintendent
(under suspension, H.Q. at Dy.S.L.R.,
Ashti, District Beed)
R/o. Sanja Chowk Osmanabad,
Tq. And District Osmanabad. .. Applicant
Versus
1. The State of Maharashtra
Through Police Station Tuljapur,
Tq. Tuljapur, District Osmanabad.
2. Pandit s/o Tukaram Doiphode,
Age: 51 years, Occu.: Serving as
Dy.S.L.R. Tuljapur, Tq. Tuljapur,
District Osmanabad, .. Respondents
[1]
appln-1996, 1047, 1048 and 1669 of 2020.odt
...
WITH
CRIMINAL WRIT PETITION NO.1048 OF 2020
Shriram s/o Shankarrao Dhole
Age: 50 years, Occu.: Serving as Supervisor,
(Un. Suspension, H.Q. at Dy.S.L.R. Mahur,
District Nanded),
R/o. A/P Jalkot, Tq. Jalkot, District Latur. .. Petitioner
Versus
1. The State of Maharashtra
Through Police Station Tuljapur,
Tq. Tuljapur, District Osmanabad.
2. Pandit s/o Tukaram Doiphode,
Age: 51 years, Occu.: Serving as
Dy.S.L.R. Tuljapur, Tq. Tuljapur,
District Osmanabad .. Respondents
...
WITH
CRIMINAL WRIT PETITION NO.1669 OF 2020
Chaya Tukaram Bhoi,
Age: 52 years, Occu.: Service,
As Maintenance Surveyor,
(Under Suspension, Hq. At Dy. S.L.R.
Office Devni, Tq. Devni, District Latur)
R/o. Presently residing at Osmanabad,
Tq. And Dist. Osmanabad. .. Petitioner
Versus
1. The State of Maharashtra
Through Police Station Tuljapur,
Tq. Tuljapur, District Osmanabad.
2. Pandit s/o Tukaram Doiphode,
Age: 51 years, Occu.: Serving as
Dy.S.L.R. Tuljapur, Tq. Tuljapur,
District Osmanabad. .. Respondents
[2]
appln-1996, 1047, 1048 and 1669 of 2020.odt
...
Mr. B. A. Darak, Advocate for the applicants in Criminal Application
Nos.1996 of 2020, 1047 of 2020 and for petitioner in Criminal Writ
Petition No.1048 of 2020.
Mr. S. V. Deshmukh, Advocate h/f Mr. R. A. Deshmukh, Advocate for the
petitioner in Criminal Writ Petition No.1669 of 2020.
Mr. A. R. Kale, APP for respondent No.1 in all the matters.
Mr. P. V. Ambade, Advocate for respondent No.2 in all the matters.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 09 APRIL 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :
–
. Present Criminal Applications and Criminal Writ Petitions are
arising out of the same proceedings and the FIR and therefore, taken up
together. Present applications and writ petitions were filed initially for
quashing the FIR vide Crime No.06 of 2020 dated 04.01.2020 registered
with Tuljapur Police Station, District Osmanabad and later on, by way of
amendment, for quashing the proceedings in Regular Criminal Case
No.19 of 2022 pending before the learned Judicial Magistrate First
Class, Tuljapur, District Osmanabad for the offences punishable under
Sections 420, 468, 471 read with Section 34 of Indian Penal Code.
2. Heard learned Advocate Mr. B. A. Darak for the applicants in
Criminal Application Nos.1996 of 2020, 1047 of 2020 and for petitioner in
Criminal Writ Petition No.1048 of 2020, learned Advocate Mr. S. V.
[3]
appln-1996, 1047, 1048 and 1669 of 2020.odt
Deshmukh holding for learned Advocate Mr. R. A. Deshmukh for the
petitioner in Criminal Writ Petition No.1669 of 2020, learned APP Mr. A.
R. Kale for respondent No.1/State in all the matters and learned
Advocate Mr. P. V. Ambade for respondent No.2 in all the matters.
3. Learned Advocates for the applicants/petitioners vehemently
submit that all the applicants and petitioners are government servants,
who were employed at the relevant time in the office of Land Records at
Tuljapur. FIR came to be lodged by one Pandit Tukaram Doiphode, who
was the Deputy Superintendent of Land Records, Tuljapur, District
Osmanabad. It was stated that the present applicants and petitioners,
who were serving in different capacities, have forged the documents and
certified various mutation entries, though the act was not within the duty
of the applicants and the petitioners. The informant has stated that he
resumed his office since 01.11.2017, but he had not received the charge
till the date of FIR i.e. 04.01.2020 from applicant Suhas Navnath
Suryawanshi, however, all the applicants and petitioners with their
common intention had certified the mutation entries illegally. He has
given the details of those mutation entries. It is to be noted from the FIR
that though the said informant had taken the charge of his office on
01.11.2017, he had not come to know about the alleged offence, but he
came to know about the same only after the inspection that was carried
out on 02.01.2020 by Superintendent of Land Records, Osmanabad. As
[4]
appln-1996, 1047, 1048 and 1669 of 2020.odt
per the Maharashtra Land Revenue Code in fact none of the applicants
and petitioners have authority, but the mutation entries will have to be
confirmed by Superintendent. Those mutation entries were not of prior to
01.11.2017. Rather informant himself had certified those entries, yet he
has lodged the report. Even Departmental Enquiry was initiated against
the informant by order dated 16.09.2020. He was held guilty and
punished under the Maharashtra Civil Services (Discipline and Appeal)
Rules, 1979 (hereinafter referred to as the “MCSR Rules”) by order
dated 01.12.2020. The salaries of the informant were suspended for two
years. After receiving the order of punishment, the informant had
committed suicide on 04.01.2021 in his rental residence at Tuljapur.
Applicant – Amir Mohammad Shaikh stood retired during the pendency of
the investigation. Applicant – Chaya Tukaram Bhoi was in fact entered in
the service as a Peon in 1995, at that time, she was posted with the
office of Taluka Inspector of Land Records, Mantha, District Jalna,
however, she came to be transferred in 2006 at Omerga, District
Osmanabad. She was promoted from post of Class-IV to Class-III
employees as Maintenance Surveyor at Tamalwadi by order dated
22.09.2019. She has not certified any entries, rather she had forwarded
the mutation entries for confirmation to the informant, who has then
certified the mutation entries.
[5]
appln-1996, 1047, 1048 and 1669 of 2020.odt
4. He has further submitted that though all the applicants and
petitioners are government servants, respondent No.2 has not obtained
sanction to prosecute them. In fact, Section 197 of the Code of Criminal
Procedure protects government servants, however, the charge-sheet
does not say that any such order was taken from appropriate authority.
Under this circumstance, it would be unjust to ask the applicants to face
the trial.
5. Per contra, the learned APP for respondent No.1/State and
learned Advocate for original respondent No.2 strongly opposed the
applications and writ petitions. The affidavit-in-reply appears to have
been filed by the informant on 09.12.2020. The death certificate of the
informant has not been placed on record as it is contended that he
committed suicide on 04.01.2021. Learned APP submits that by
communication dated 06.12.2021, the investigating officer had requested
Superintendent of Police, Osmanabad to get the sanction for prosecution
under Section 197 of the Code of Criminal Procedure. Thereafter, the
communications were made at the higher level and by order dated
09.02.2022, the sanction was accorded under Section 197 of the Code
of Criminal Procedure. The higher authority during the inspection had
arrived at a conclusion that many mutation entries as stated in the FIR
were got done by the applicants and petitioners. In fact, they were not
even entitled to get the entry as per the law. The documents have been
[6]
appln-1996, 1047, 1048 and 1669 of 2020.odt
seized and sent for analysis of the handwriting, but as there was
sufficient evidence for proceeding, the charge-sheet has been filed.
6. In the beginning itself, we would like to take the point of sanction.
The purpose of Section 197 of the Code of Criminal Procedure is to
protect a public servant against institution of possibly vexatious criminal
proceedings for any offence alleged to have been committed by them
while they are acting or purporting to act as public servants. In D. T.
Virupakshappa Vs. C. Subash, [(2015) 12 SCC 231], it has been held
relying upon the earlier decision in Om Prakash Vs. State of
Jharkhand, [(2012) 12 SCC 72] that the question whether sanction is
necessary or not has to be decided from stage to stage. In a given case,
it may arise at the inception. There may be unassailable and
unimpeachable circumstances on record which may establish that the
police officer or public servant was acting in performance of his official
duty and is entitled to protection given under Section 197 of the Code. It
was held that the true test as to whether a public servant was acting or
purporting to act in discharge of his duties would be whether the act
complained of was directly connected with his official duties or it was
done in the discharge of his official duties or it was so integrally
connected with or attached to his office as to be inseparable from it.
Recently, in G. C. Manjunath and others Vs. Seetaram, [Criminal Appeal
No.1759 of 2025 (arising out of Special Leave Petition (Criminal) Nos.6053
[7]
appln-1996, 1047, 1048 and 1669 of 2020.odt
of 2021) decided on 03.04.2025] again overall law involved was
considered and the earlier decisions were also considered. In the said
case, it was also the point of police excuses and, therefore, Section 170
of Karnataka Police Act was also considered, however, for our purposes,
the facts are then required to be considered. In respect of Section 197 of
the Code of Criminal Procedure, it has been observed thus :-
“30. A careful reading of Section 197 of the CrPC
unequivocally delineates a statutory bar on the Court’s
jurisdiction to take cognisance of offences alleged against
public servants, save without the prior sanction of the
appropriate government. The essential precondition for the
applicability of this provision is that the alleged offence must
have been committed by the public servant while acting in
the discharge of, or purported discharge of, their official
duties. The protective mantle of Section 197 of the CrPC,
however, is not absolute; it does not extend to acts that are
manifestly beyond the scope of official duty or wholly
unconnected thereto. Acts bereft of any reasonable nexus to
official functions fall outside the ambit of this safeguard and
do not attract the bar imposed under Section 197 of the
CrPC.
31. ………
32. ………
33. This Court in Amod Kumar Kanth Vs.
Association of Victim of Uphaar Tragedy, (2023) 16 SCC
239 held that the State performs its obligations through its
officers/public servants and every function performed by a[8]
appln-1996, 1047, 1048 and 1669 of 2020.odtpublic servant is ultimately aimed at achieving public welfare.
Often, their roles involve a degree of discretion. But the
exercise of such discretion cannot be separated from the
circumstances and timing in which it is exercised or, in cases
of omission, when the omission occurs. In such
circumstances, the courts must address, whether the officer
was acting in the discharge of official duties. It was observed
that even when an officer acts under the purported exercise
of official powers, they are entitled to protection under
Section 197 of the CrPC. This protection exists for a valid
reason so that the public servants can perform their duties
fearlessly, without constant apprehension of legal action, as
long as they act in good faith. While Section 197 of the CrPC
does not explicitly mention the requirement of good faith,
such a condition is implied and is expressly included in
several other statutes that offer protection to public servants
from civil and criminal liability.”
7. After taking note of the legal position, it is to be noted that till filing
of charge-sheet in the matter on 18.12.2021, there was no move by the
investigating officer to get the sanction under Section 197 of the Code of
Criminal Procedure. It is not the case of the prosecution now that the
investigating agency was of the opinion that whatever the acts have
been done by the present applicants and petitioners was not forming
part of official duty. If that would have been so, then after filing of the
charge-sheet, there was no necessity to the investigating officer to apply
for sanction. The investigating officer then by communication dated
26.12.2021 to Superintendent of Police, Osmanabad prayed that
[9]
appln-1996, 1047, 1048 and 1669 of 2020.odt
sanction under Section 197 of the Code of Criminal Procedure be
obtained. Thereafter, it appears that the office of Superintendent of
Police, Osmanabad made communication with the higher authority on
24.02.2022 for sanction under Section 197 of the Code of Criminal
procedure. Such order has been passed by the Deputy Director of Land
Records, Aurangabad Division, Aurangabad on 09.02.2022. Thereafter
on 28.02.2022, the office of Superintendent of Police, Osmanabad
appears to have forwarded the said order to investigating officer for its
production before the Magistrate. The exact date of production of order
before the Magistrate is not coming forward, but suffice it to say that the
sanctions have been obtained after the charge-sheet was filed and even
after the case was numbered on 10.01.2022. The copy of the order
below Exhibit-01 passed on 10.01.2022 by learned Judicial Magistrate
First Class, Tuljapur has been produced which in clear terms states that
process has been issued against the accused persons on that day and it
was made returnable on 01.04.2022. That means, this order of taking
cognizance cannot be said to be a legal order in view of the fact that the
sanction under Section 197 of the Code of Criminal Procedure was not
placed before the learned Magistrate (in fact it was not even issued on
that day) when the said order was passed. Only on this count, the
applications and the writ petitions are required to be allowed.
[10]
appln-1996, 1047, 1048 and 1669 of 2020.odt
8. On merits, it appears that though the applicants and the
petitioners had taken the entries, but unless those entries were certified,
those entries cannot take the final shape and that final shape was given
by the informant himself. He is the authority who could certify those
entries. The documents in respect of his Departmental Enquiry have
been produced, wherein he was held guilty and punished under the
MCSR Rules. Another fact to be noted is that in order to prove these
offences it ought to have been even prima facie shown by the
investigating agency or the prosecution that the applicants and the
petitioners allegedly acted with common intention, though they were
working at different places, in a sense they were holding the charge of
different places. Mere taking wrong entries or even illegal entries will not
give rise to criminal prosecution, unless it is shown that the said act has
been done with a criminal intent. There is absolutely no document on
record produced in the charge-sheet, nor the investigating officer
appears to have made inquiry with those persons, who were affected by
those entries, as to whether they had ever challenged those entries
before the appropriate forum. Therefore, even on merits of the case also,
there is no such evidence in the entire charge-sheet which would attract
even the prima facie ingredients of the offences punishable under
Sections 420, 468, 471 read with Section 34 of Indian Penal Code and,
therefore, the proceedings are required to be quashed and set aside.
[11]
appln-1996, 1047, 1048 and 1669 of 2020.odt
Hence, the following order :-
ORDER
I) Criminal Application Nos.1996 of 2020 and 1047 of 2020 as
well as Criminal Writ Petition Nos.1048 of 2020 and 1669 of 2020
are hereby allowed.
II) The FIR vide Crime No.06 of 2020 dated 04.01.2020
registered with Tuljapur Police Station, District Osmanabad as well
as the proceedings in Regular Criminal Case No.19 of 2022
pending before the learned Judicial Magistrate First Class,
Tuljapur, District Osmanabad for the offences punishable under
Sections 420, 468, 471 read with Section 34 of Indian Penal Code,
stand quashed and set aside, as against the applicant in Criminal
Application No.1996 of 2020 – Amir s/o Mohammad Shaikh,
applicant in Criminal Application No.1047 of 2020 – Suhas s/o
Navnath Suryawanshi, petitioner in Criminal Writ Petition No.1048
of 2020 – Shriram s/o Shankarrao Dhole and petitioner in Criminal
Writ Petition No.1669 of 2020 – Chaya Tukaram Bhoi.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
[12]
[ad_1]
Source link