High Court
Legal Reasoning
( 1 ) cri wp 811.18IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 811 OF 2018Keshav s/o Rama Muddewad,Age: 40 years, Occu: Councilor,R/o Samtanagar, Ward No.19,Bhokar, Tq. Bhokar, Dist. Nanded....PETITIONERV/s.1.The State of MaharashtraThrough Police Station Bhokar,Tq. Bhokar, Dist. Nanded.2.Ashutosh s/o Digambarrao Chinchalkar,Age: 42 years, Occ: CEO,R/o Devrai Nivas, Near Bhrmakumari,Rampur Road, Deglur, Tq. Deglur,Dist. Nanded3.Harikalyan s/o Janardhan Yalgatte,Age: 35 years, Occ: CEO,R/o Nagar Parishad, Bhokar, Tq. Bhokar, Dist. Nanded.4.Swati Kshatriy,Age: 40 years, Occ: Accountant,R/o Nagar Panchayat Ardhapur,Tq. Ardhapur, Dist. Nanded.5.Raju Sheshrao Padade,Age: 29 years, Occ: Engineer,R/o Nagar Parishad, Bhokar, Tq. Bhokar, Dist. Nanded.6.Suwarnabai w/o Sambjhaji Waghmare,Age: 40 years, Occ: Councilor,R/o Nagar Parishad, Bhokar, Tq. Bhokar, Dist. Nanded.
Legal Reasoning
( 2 ) cri wp 811.187.Sambhaji s/o Manika Waghmare,Age: 42 years, Occ: Contractor,R/o In front of Court, Bhokar, Tq. Bhokar, Dist. Nanded.8.Sahebrao s/o Hari Gaikwad,Age: 35 years, Occ: President,Saibaba Society Bhokar,R/o Nagar Parishad, Bhokar, Tq. Bhokar, Dist. Nanded....RESPONDENTS.....Mr. Santosh Bhosale, Advocate for the PetitionerMr. V.M. Chate, APP for the Respondent-StateMr. Shriram Deshmukh & Rakshanda Jaikswal h/f. Devang Deshmukh,Advocate for the Resp. Nos.6 & 7Ms. Akanksha Pawar h/f. Ram Shinde, Advocate for the Resp. Nos.3 to 5..…CORAM : Y.G. KHOBRAGADE, J.RESERVED ON :13.11.2024 PRONOUNCED ON :22.11.2024JUDGMENT:-1.Rule. Rule made returnable forthwith. Heard finally with theconsent of both the sides.2.By the present petition under Article 226, 227 read with Section482 of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.), thePetitioner/Original Complainant takes exception to the order dated 12.06.2018passed by the learned Sessions Judge, Bhokar in Criminal RevisionNo.11/2018, whereby the Bhokar Police Station was directed to register acrime against the Respondent No.2-Ashutosh Digambarro Chinchalkar, ( 3 ) cri wp 811.18Respondent No.3-Harikalyan Janardhan Yalgatte and Respondent No.8-Sahebrao Hari Gaikwad and to make inquiry whether they have committedcognizable offence as alleged by the present Petitioner and partly set aside theorder dated 17.04.2018 passed by the learned J.M.F.C. Bhokar in Misc.Criminal Application No.51/2018.3.In nutshell the facts giving rise to the present petition is that thePetitioner was Councilor of Bhokar Municipal Council. The Accused No.1-Ashuthosh Digambarrao Chinchalkar was the C.E.O. of the then BhokarMunicipal Council. Accused Nos. 2, 3 and 4 are the Chief Officer, Accountantand Engineer of Bhokar Municipal Council. Accused No.5 is a Member ofMunicipal Council. Accused No.6 was Mukadam. The Municipal CouncilBhokar had allotted tender for collection of garbage in favour of SaibabaSevabhavi Sanstha and Accused No.7 is the President of said Sanstha.According to the Petitioner/Complainant on 13.06.2017, the Municipal Councilhad flouted a tender for collection and disposal of garbage. In response to thesaid tender, the Sanstha through its President and other two associatessubmitted their tender. While submitting the tender the Accused No.7 disclosedabout having 5 vehicles, however, 5-6 vehicles are of Municipal Council Bhokar.The Accused No.1 in collusion with the Accused Nos. 5, 6 and 7 allotted thetender to the said Sanstha to misappropriate the public funds. The AccusedNo.7 is the relative of Accused Nos. 5 and 6 and without obtaining any bond ( 4 ) cri wp 811.18provided under Section 16 and 44 of the Maharashtra Municipal Councils,Nagar Panchayats and Industrial Townships Act, 1965, said tender was allottedin favour of the Accused No. 7. So also, the Accused No. 6 sanctioned the billof lakhs of rupees. Similarly, the Accused No.3 – Accountant has not takenproper care while releasing the bill. Further the Gram Panchayat, Ritha hadallotted land in the year 2012 to Municipal Council Bhokar for dumping ofgarbage, but said land was not acquired by the Municipal Council, therefore, nocenter for dumping the garbage and destruction of it was operating. However,the Accused No. 7 submitted false and fabricated bills thereby showing that hehas disposed and destructed the garbage.4.The Petitioner/Complainant further alleged that the Accused No.1-C.E.O. accepted the lowest amount of e-tender of Saibaba Sevabhavi Sansthawho had no previous experience of such work and still the tender wasaccepted. It is further alleged that initially one Smt. Suwarnabai SambhajiWaghmare was the Councilor of Municipal Council and she was the Presidentof said Sanstha. On 15.02.2016, said Suwarnabai had resigned from the postof President of said Sanstha. The Accused No.4 - City Engineer was givenresponsibility to look into the matter and control the entire process of cleaningthe Bhokar city and destruction of garbage at the dumping ground. Though,the Accused No.7 was not having his own vehicle, he has shown 5 to 6 vehiclesfor carrying the garbage at the dumping ground, said vehicles are owned by ( 5 ) cri wp 811.18Municipal Council and on the basis of false and manufactured bills, the accusedpersons misappropriated the public fund. Therefore, the Petitioner/Complainant had submitted a representation to the Principal Secretary, Stateof Maharashtra, so also on 31.03.2018, he has lodged a report with the PoliceStation Bhokar, but no action was taken. Thereafter, on 03.04.2018, thePetitioner/Complainant submitted an application with the Superintendent ofPolice, Nanded, but no action was taken. Therefore, the Petitioner filed aprivate complaint bearing Misc. Criminal Application No. 51/2018 and prayedfor inquiry under Section 156 (3) of the Cr.P.C. for the offences punishableunder Sections 420, 465, 467, 468, 471, 406, 409, 414, 120-B, 166-A read withSection 34 of the Indian Penal Code, 1860 (for brevity I.P.C.).5.On 17.04.2018, the learned J.M.F.C. passed an order holding thatthough it is presumed that the allegations leveled in the complaint are based onthe documentary evidence and the Court itself can inquire into theallegations/charges by invoking Section 202 to 204 of the Cr.P.C., however, thePetitioner/Complainant is not willing for the said inquiry. Since, thePetitioner/Complainant has not obtained the sanction under Section 197 of theCr.P.C. as against the Accused No.1–C.E.O., therefore, Ld. J.M.F.C. declined todirect to register the offence. Being aggrieved by the said order thePetitioner/Complainant filed Criminal Revision Application No. 11/2018 underSection 397 of the Cr.P.C. before the learned Additional Sessions Judge, Bhokar, ( 6 ) cri wp 811.18Dist. Nanded. On 12.06.2018, the learned Sessions Judge passed theimpugned order and directed to register the crime against the Respondent No.2-Ashutosh Chinchalkar, Respondent No.3-Harikalyan Yalgatte and RespondentNo.8- Sahebrao Hari Gaikwad and directed to inquire as to whether they havecommitted cognizable offence as alleged by the Petitioner.6.The learned counsel appearing for the Petitioner canvassed that allthe accused persons/Respondents in collusion with each other have committedillegal activities and prepared false and bogus documents and cheated theGovernment as well as the Municipal Council, however, both the Courts belowhave failed to consider the averments made in the complaint and passed theorder. Therefore, both the orders passed by the Courts below are notsustainable in the eyes of law.7.It is further canvassed that the learned JMFC, Bhokar passed theorder on 17.04.2018 only on the ground that no sanction was obtained fromthe Competent Authority to prosecute the Accused No.1, however, all theaccused in collusion with each other have committed a fraud and cheated thepublic authority by releasing the bills in favour of the Accused No.7 on the basisof false and fabricated documents and had withdrawn huge amount anddeceived the State as well as the Municipal Council Bhokar. Therefore, theaccused persons have committed offences punishable under Sections 420, 465, ( 7 ) cri wp 811.18467, 468, 471, 406, 409, 414, 120-B, 166-A read with Section 34 of the I.P.C.,however, the learned JMFC as well as the learned Additional Session Judge,Bhokar ignored the said fact and passed the orders which are not sustainable inthe eyes of law. The learned counsel appearing for the Petitioner furthercanvassed that both the Courts below ignored the fact that allegations leveledagainst the Respondents-Accused are very much clear about committing theoffences. Therefore, it is necessary to register the offences as against all theaccused persons. The learned counsel appearing for the Petitioner furthercanvassed that 5 – 6 vehicles which have been shown by the Respondent No.7are registered in the name of Bhokar Municipal Council, but those vehicleswere shown to be owned by the Respondent No.7 and the same were used forpicking up garbage from the city and transporting the same for destruction.Therefore, the Accused No.7 in connivance with other accused used thevehicles of Municipal Council and had drawn the bills, which caused loss to thepublic funds. Therefore, the accused persons by preparing bogus bills anddocuments committed the offences punishable under Section 420, 465, 467,468, 471, 406, 409, 414, 120-B, 166-A read with Section 34 of the I.P.C.8.The learned counsel appearing for the Petitioner further canvassedthat both the Courts below ignored the fact that dumping site of MunicipalCouncil is situated at village Ritha and as per the certificate issued by theAccused No.4-Engineer, there is no other dumping site. Despite this, the ( 8 ) cri wp 811.18Respondents-Accused submitted report about management of waste regularly,though, the Gram Panchayat Ritha issued a certificate certifying that theproposed dumping site has never been used by the Municipal Council. In spiteof said fact, the Respondents-Accused have shown that they are using the saiddumping ground and had withdrawn huge amount and committed fraud,however, both the Courts below have failed to consider the said fact and passedthe impugned orders, hence prayed for quashing and setting aside the same.9.Per contra, the learned APP canvassed that the learned JMFC,Bhokar passed an order dated 17.04.2018 and turned down prayer of thePetitioner/Complainant for inquiry under Section 156(3) of the Cr.P.C. on theground that the Accused Nos.1 to 4 and 6 are public servants, however, nosanction was obtained under Section 197 of the Cr.P.C. to prosecute them. Soalso, the Accused No.5 is a Councilor, however, no any specific allegations aremade against him regarding preparation of false and fabricated documents andcheating the Municipal Council, therefore, the learned JMFC, Bhokar refusedfor an inquiry under Section 156 (3). The learned APP further canvassed thaton 12.06.2018, the learned Sessions Judge passed an order holding that underSection 79-A of the Maharashtra Municipal Councils, Nagar Panchayats andIndustrial Townships Act, 1965 prior permission from Competent Authority i.e.the C.E.O. is necessary to file a criminal complaint against the employees of theMunicipal Council. The Accused/Respondent Nos. 3 to 6 are the employees of ( 9 ) cri wp 811.18the Municipal Council and no such permission under Section 79-A of the Actwas taken to proceed against them. So also, all the employees/servants haveno authority to take any decision. The Accused Nos.1 and 2 are Govt. Servantsas they are appointed by the State Govt. and an inquiry under Section 156 (3)of the Cr.P.C. is not maintainable for want of sanction under Section 197 of theCr.P.C. Though, the Petitioner/Complainant submitted a letter dated29.12.2017 seeking permission under Section 197 of the Cr.P.C. for prosecutingthe former C.E.O./ Accused No.1- Ashutosh Chinchalkar and the present C.E.O.– Harikalyan Yalgatte, but no sanction was granted. However, the learnedSessions Court considered the proviso to Section 190 and presumed aboutdeemed sanction as the proposal for sanction has not been decided for a periodof 90 days. So also, after considering the material available on record thelearned Sessions Court directed preliminary inquiry to find out whethercognizable offence as alleged by the complainant is made out against theRespondent Nos. 1, 2 and 7 only. Therefore, the impugned judgment and orderdated 12.06.2018 is just and proper and no interference is called at the handsof this Court. Hence, prayed for dismissal of the petition.10.Mr. Deshmukh, the learned counsel appearing for the RespondentNos. 6 and 7 and advocate Ms. Akanksha Pawar h/f. Ram Shinde, the learnedcounsel appearing for the Respondent Nos. 3 to 5 supported the findings of thelearned Sessions Court. Advocate Deshmukh canvassed that the Respondent ( 10 ) cri wp 811.18Nos. 6 and 7 are the Councilors and they are not directly or indirectly involvedwhile allotting the tender for collection and disposal of the garbage. However,the Petitioner is having political rivalry with Respondent Nos.6 and 7,therefore, on the false assumption and presumption, the Petitioner hasimpleaded both these accused though they have not committed any suchoffence, so also, they are not directly or indirectly involved in preparation anddisbursement of bills. Advocate Ms. Akanksha Pawar, the learned counselappearing for the Respondent Nos.3 to 5 canvassed that the Respondent Nos. 3to 5 are the public servants appointed by the Municipal Council Bhokar,therefore, necessary sanction for their prosecution is required under Section197 of the Cr.P.C. and in absence of such sanction the Respondent Nos. 3 to 5are not liable for the prosecution. However, the Petitioner/Complainant hasnot obtained the sanction to prosecute the Respondent Nos. 3 to 5. Therefore,the complaint as against the Respondent Nos. 3 to 5 itself is not tenable in theeyes of law. The learned JMFC as well as the learned Sessions Court, Bhokarrightly declined to direct an inquiry under Section 156 (3) of the Cr.P.C.11.Having regard to the submissions canvassed on behalf of both thesides, I have gone through the record. Indeed, the Petitioner and theRespondent Nos. 6 and 7 are the Councilors of the Municipal Council. ThePetitioner and the Respondent Nos. 6 and 7 are having political rivalry. TheRespondent No.2/Ooriginal Accused No.1 is erstwhile C.E.O. of the Municipal ( 11 ) cri wp 811.18Council. The Respondent No. 3/Original Accused No.2 is the then C.E.O. of theMunicipal Council, whereas, the Respondent No. 4- Swati Kshatriy andRespondent No.5- Raju Sheshrao Padade are the employees of the MunicipalCouncil. On the face of record, it appears that on 13.06.2017, the MunicipalCouncil published an advertisement calling upon online tender till 20.06.2017,the terms and conditions and other details of the tender was made available onthe website i.e. http://mahatenders.gov.in. So also, said tender was to bedownloaded w.e.f. 13.06.2017 to 20.06.2017 till 3.00 p.m. The Petitioner hasnot produced the copy of tender showing the terms and conditions of thetender from the website so also, who are eligible to submit the tender. Nodoubt, the Respondent No.7 is the President of Saibaba Sevabhavi Sanstha,Bhokar, ii) Mahatma Jyotiba Pule Sanstha and iii) Ramrao Devrao Narwadesubmitted their tenders and since the tenders of Respondent No. 7 was foundlowest (L1), the Accused No.1 had allotted the tender in favour of theRespondent No. 7. Thereafter, on 08.09.2017, the Respondent No.1 issuedwork order in favour of Saibaba Sevabhavi Sanstha. The Sanstha is aregistered trust under the provisions of the Bombay Public Trusts Act, 1950.On 07.10.2016, the Assistant Charity Commissioner, Nanded passed an order ininquiry report No. 411/2016. The Respondent No.6- Suwarnabai SambhajiWaghmare resigned from the post of President of said Sanstha and SahebraoHari Gaikwad, Accused No.7 was elected as the President of the said Sanstha. ( 12 ) cri wp 811.18Therefore, the said change report was accepted. Needless to say that thoughthe Petitioner/Complainant alleged that all the Respondents in collusion haveaccepted the tender of the Saibaba Sevabhavi Sanstha for collection anddestruction of garbage at the dumping ground, so also, the Respondent No. 7was shown as the owner of 5 – 6 vehicles, but in fact those vehicles are ownedby the Municipal Council. The Respondent No.7 allegedly used those vehiclesfor collection and destruction of garbage at the dumping ground and on basisof the same, false and bogus bills were drawn which caused heavy financial lossto the Municipal Council.12.Indeed, on 17.04.2018, the learned JMFC, Bhokar passed an orderholding that though the Court can make an inquiry under Section 200 to 204 ofthe Cr.P.C., but the complainant is not willing for the said inquiry. So also, nosanction to prosecute public servants has been produced, hence it declined togrant the application. On 12.06.2018, the learned Sessions Court passed theimpugned judgment and order by holding that as per the provisions of Section79-A of the Act, prior permission of Competent Authority i.e. C.E.O. isnecessary to file any criminal case against the public servant working with theMunicipal Council. Though, the Accused-Respondent Nos. 3 to 6 are publicservants and working with the Municipal Council, but no such permission wastaken to proceed against them for their illegal activities while discharging theirduties. So also, the Respondent Nos.1 and 2 are Govt. Servants and no ( 13 ) cri wp 811.18necessary permission was obtained to prosecute them. Though, the Petitionersubmitted a letter dated 29.12.2017 and prayed for permission under Section197 of the Cr.P.C. to prosecute the Accused No.1- Ashutosh Chinchalkar andAccused No. 2-Harikalyan Yalgatte, so also, neither the sanction was grantednor it was rejected for a period of 90 days, hence it is deemed to have beenaccorded by the sanctioning authority considering the nature of allegationsmade in the complaint, preliminary enquiry was directed for commission ofcognizable offences against Accused Nos.1, 2 and 7 only. On perusal ofallegations leveled in the complaint, it does not reveal that the complainant hasobtained sanction to prosecute the Accused No.3- Swati Kshatriy, Accountant,Accused No.4 - Raju Sheshrao Padade, Engineer and Accused No.6- SambhajiManika Waghmare, Contractor.13.No doubt, the Petitioner/Complainant had submitted anapplication / letter dated 29.12.2017 seeking permission under Section 197 ofthe Cr.P.C. with the appointing authority to prosecute the Accused No.1-Ashutosh Chinchalkar and Accused No.2- Harikalyan Yalgatte but there was nointention either to accord or reject the sanction for prosecuting them.Therefore, the learned Sessions Court considered about deemed sanction forthe prosecution and directed the preliminary inquiry to find out whethercommission of cognizable offence is made out against the Respondents-AccusedNos. 1, 2 and 7 only. ( 14 ) cri wp 811.1814.Further the Petitioner/Complainant has specifically allegedregarding allotment of tender in favour of Saibaba Sevabhavi Sanstha of whichthe Accused No. 7 is the President, however, the Petitioner/Complainant hasnot impleaded the Sanstha in whose favour the tender was allotted. Not onlythis, but the Petitioner also failed to produce the tender copy on record to showwhat are the terms and conditions prescribed in the tender form. ThePetitioner/Complainant only relied on the advertisement published in thenewspapers for floating of tender on website of State Government for collectionand disposal of waste within the Bhokar Municipal Council. Therefore,whether the use of vehicles owned by the Municipal Council was prescribed isnot clear or whether the condition was essential that the person who gets thetender must own and possess the vehicles. There may be a possibility that theperson who gets the tender can use the vehicles of Municipal Council and paythe necessary transportation charges / freight. Since, the allegations made inthe complaint are against the Accused Nos.1, 2 and 7 only, therefore thelearned Sessions Court directed preliminary inquiry against them which doesnot appear to be illegal and bad in law.15.In view of the above, the findings does not appear to be perverseand no grounds have been set out to interfere with the same, hence, thepetition is liable to be dismissed. Hence, it is dismissed. ( 15 ) cri wp 811.1816.Accordingly, the Rule is discharged. [Y.G. KHOBRAGADE, J.]mub