Criminal Application No. 2368 of 2022 · Bombaybench High Court
Case Details
2024:BHC-AUG:20122 1 Cri.Appln.2368-22+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2368 OF 2022Atul Ashok Mundada,Age : 45 years, Occu. Agriculture & Business,R/o Plot No.52, Mundada Nagar, Jalgaon,Taluka & District Jalgaon.… Applicant. Versus1.The State of Maharashtra,2.Kailas Pandurang Bagul,Age 57 years, Occu. Service,Presently Town Planner,Valuation Department, Nashik.R/o 3rd Floor, N.D.A. Tower,Sambhaji Chowk, Untwadi,Nashik, Taluka & Dist. Nashik.Now R/o A.D.T.P. Jalgaon City Municipal Corporation,Office of Jalgaon City Municipal Corporation,Jalgaon, Dist. Jalgaon.3.Nitin Balmukund Laddha,Age : 56 years, Occu. Business,R/o Laddha Farm House, Near Ajintha Square,Jalgaon, Tal. & Dist. Jalgaon.… Respondents.ANDCRIMINAL APPLICATION NO.2383 OF 2022Atul Ashok Mundada,Age : 45 years, Occu. Agriculture & Business,R/o Plot No.52, Mundada Nagar, Jalgaon,Taluka & District Jalgaon.… Applicant. Versus1.The State of Maharashtra,2.Nitin Balmukund Laddha,Age : 56 years, Occu. Business,
Legal Reasoning
2 Cri.Appln.2368-22+1.odtR/o Laddha Farm House, Near Ajintha Square,Jalgaon, Tal. & Dist. Jalgaon.… Respondents....Advocate for Applicant in both application : Mr. Girish S. Rane.APP for Respondent-State in both applications : Mr. D. J. Patil.Advocate for Respondent No.2 in Appln/2368/2022 : Mr. P. R.Katneshwarkar (Senior Advocate) i/b Mr. A. R. Syed.Advocate for Respondent No.3 in Appln/2368/2022 & Res.No.2 in Appln/2383/2022 : Mr. M. S. Deshmukh i/b Mr. S. H.Tripathi.…CORAM : S. G. MEHARE, J.RESERVED ON : 25.07.2024PRONOUNCED ON : 02.09.2024JUDGMENT :- 1.Heard the learned counsels for the respective parties.2.The same applicant, by two separate applications underSection 156(3) of the Code of Criminal Procedure (“Cr.P.C.” forshort) approached this Court under Section 482 of theCriminal Procedure Code against the orders of the learnedJudicial Magistrate First Class and the learned AdditionalSessions Judge rejecting his prayer to issue directions underSection 156(3) of the Cr.P.C. to order the investigation of thecrime by the police against the respondents, who were the thenMayor of the Corporation and the Assistant Director, TownPlanning of the Municipal Corporation, Jalgaon. 3 Cri.Appln.2368-22+1.odt3.Before adverting to the issues raised in these applicationshow the applicant got the title is essential to know the natureof the property. One Tulshiram Krushna Bari as shown in thesale deed 20.04.2015, was the tenant of Gut No.97/3measuring 56 R. of Mauza Pimprala. The recital of the said saledeed further reveals that he was holding the land under section43 of the Tenancy Act. He paid the Nazrana to the Tahasildarand released the conditions. He took the Mutation Entry in hisname. On, 20.04.2015, he sold it to the petitioner and othersfor Rs.21,00,000/- (Twenty One Lakhs). The sale deed of FieldGut 115/4 of Mouza Pimprala dated 30.12.2013 shows thatDevidas Hari Bari sold it to the petitioner and one another(who was vendor cum purchaser) for Rs 15,00,000/- (FifteenLakhs). The applicant, Atul Mundada, took that land fordevelopment. The consent of Sou. Sonal Vivekanand Kulkarniwas obtained for the registered sale deed. However, why Sou.Sonal Vivekanand Kulkarni, was consenting party to thedocument is not clear. The columns of the class of land in 7/12extract of both fields attached to the sale deeds were blank. Itdoes not reflect, whether it was a class I or Class II land. Itseems that it was the tenanted land. However, everything issilent about it. The record reveals that applicant Atul, waspersuading a Court proceeding since 2011. One of the petitions 4 Cri.Appln.2368-22+1.odtunder Section 127 of the Maharashtra Regional Town PlanningAct was filed under his Power of Attorney. He secured theorders from this Court, that the Municipal Corporation wouldacquire both these lands. The Municipal Corporationaccordingly consented to acquire the lands. Then, theproceeding under the Land Acquisition Act (new) was initiated.Both properties were purchased for Rs.36,00,000/- (Thirty SixLakhs). The compensation for Rs.5,98,27,436/- (Rupees FiveCrore Ninety Eight Lakhs Twenty Seven Thousand Four ThirtySix) was valued just within a year of the purchase of GutNo.97/3 and three years of purchasing Gut No.115/4. Such ahuge profit was made. After passing the award, the LandAcquisition Officer communicated to the MunicipalCommissioner to deposit the compensation amount determinedby him. 4.The applicant has further case that the Commissioner ofthe Municipal Corporation approved the office not put by thePlanning Department on 31.01.2017 for releasing thecompensation amount. However, instead of sending the saidbill to the Finance Department, accused Nos.1 and 2 hatching aconspiracy and deliberately forwarded it to the office of theMayor i.e. accused No.2. Subsequently the office notes and
Decision
5 Cri.Appln.2368-22+1.odtother files were illegally disposed of by accused No.1.Respondent No.2 has no role to call the note sheets and therelevant papers approving the bill to deposit the money withthe Land Acquisition Officer. In a nutshell, the applicant has agrievance that only with a view to put him to the loss,respondent No.2 took the officers of the Corporation intoconfidence and deprived him of the compensation and todeprive him, he destroyed the record and passed a forged andfabricated resolution in a meeting having no subject. 5.The applicant had lodged the report to theSuperintendent of Police, Jalgaon. It was made over to theMunicipal Corporation for inquiry. The inquiry was entrustedto the Deputy Commissioner, M.N.C (Administration). Then theapplicant had submitted all relevant documents to him.However, he did not make an inquiry seriously. He lodged thecomplaint to S.P. Jalgaon on 03.03.2020. The police did notregister crime. Hence, he made the complaint to theSuperintendent of police. Then, he filed two separateapplications under Section 156(3) of the Cr.P.C. for an order todirect the Police to investigate the crime for the offencespunishable under Sections 166, 167, 177, 201, 202, 204, 218, 6 Cri.Appln.2368-22+1.odt120-B read with Section 34 of the IPC and Sections 8 and 9 ofthe Maharashtra Public Records Act.6.Both the learned Judicial Magistrate First Class as wellas the learned Additional Sessions Judge declined to issue thedirection under Section 156(3) of the Cr.P.C. LearnedMagistrate kept the option open to the applicant to treat hisapplication as a complaint under Section 2(d) of the Cr.P.C. Hedirected the applicant to intimate whether he would continuethe proceeding as a complaint case on the next date. Since theapplicant did not intimate, the Court of Judicial MagistrateFirst Class disposed of the case by subsequent order. 7.Learned counsel Mr. Rane for the applicant hasvehemently argued that both the Courts have erred in law innot exercising the powers under Section 156(3) where primafacie cognizable offence is made out. He has vehementlyargued that once the material placed before the Magistrate issufficient to believe that the cognizable offences made out, theCourt has no option except to issue the direction under Section156(3) of the Cr.P.C. He has vehemently argued that thelearned Additional Sessions Judge has passed the mechanicalorder and did not apply his mind. In a cut and paste practice, 7 Cri.Appln.2368-22+1.odthe has interchanged the facts of one case with the other case.He did not even deal with the grounds of the objection and thefacts pleaded in the complaint. He would submit that the actsof the accused/respondents were intentional and deliberate.The applicant had a good case on merit for an order underSection 156(3) of the Cr.P.C. He also went on to argue that theSessions Court was so negligent while passing the impugnedorder that could be seen from his observation referring toSection 18 of the old Acquisition Act. He took this Courtthrough the facts pleaded in the complaints. He relied on thebunch of case laws and argued that both orders are liable to bequashed and set aside and directions to be issued underSection 156(3) of the Cr.P.C. In alternative, he prayed forremitting the matter to the Sessions Court for passing areasoned order. 8.Per contra, learned counsel Mr. Katneshwarkar,appearing for respondent No.2 in Criminal ApplicationNo.2368 of 2022, has strongly opposed the applicationprimarily on the ground of tenability of the petition impugningtwo orders. He would submit that the subsequent ordersdisposing of the application on failure to intimate the Court tocontinue or treat the application as a complaint could not be 8 Cri.Appln.2368-22+1.odtconsidered here, and if it is considered there will be conflictingopinion of the Court. He would submit that these are the twodistinct orders. Hence, the applications are not tenable. 9.The tone of his argument was that the respondents werepublic servants. Section 486 of the Maharashtra MunicipalCorporation Act protects the acts done by the public servant ingood faith. They had performed their official duties. He hasreferred to the amended provisions of Section 156(3) of theCr.P.C of the State of Maharashtra and argued that since thesanction was not obtained, the Magistrate was not empoweredto pass an order under Section 156(3) directing theinvestigation by police. Respondent No.2 did not commit anoffence. Therefore, no offence is made out. That apart his rolewas only to place the office notes before the meeting. None ofthe grounds raised in the application constitute a cognizableoffence. Since a cognizable offence is not made out to orderinvestigation under Section 156 (3) of Cr.P.C. Relying on thefew case laws, he prayed to dismiss the applications. 10.Learned counsel Mr. Karpe, appearing for Mayor in bothcases, adopted the arguments on law points advanced bylearned counsel Mr. Katneshwarkar. He added that as per 9 Cri.Appln.2368-22+1.odtSection 48 Clause (B) of the Municipal Corporation Act, theCorporation Secretary is a custodian of the papers anddocuments. The mayor is not the custodian of the documents.Therefore, he cannot be blamed for destroying the record. He,being the Mayor had to sign the papers placed for his approvalor sanction. The applicant did not join all 48 Corporators, whohad passed the resolution unanimously. That goes to show thatthe petitioner has a personal grievance against the mayor. Theview taken by the Magistrate is a possible view. In every case,powers under Section 156(3) of the Cr.P.C. shall not beexercised. The order of the Sessions Judge indicates theapplication of mind. He also relied on certain case laws. Hewould submit that filing such false and frivolous complaintsdeterring the public servants in discharging their duties is anabuse of the process of law. 11. Both learned counsels for the respondents would submitthat the applicant is barely interested in compensation. Thelegal remedy is available to him. He cannot apply such acoercive method to recover the compensation. They againprayed to dismiss the applications. 10 Cri.Appln.2368-22+1.odt12.In reply, learned counsel Mr. Rane has argued that in thecase of Sanjay relied upon by him, it has been clarified whenthe sanction is required for taking cognizance against thepublic servant. The sole exception under the amendedprovisions of Section 156(3) is that the public servant mustdischarge or commit the act in his official capacity. Whiledealing with the issue of sanction, the nature of the act allegedis important. He would submit that the judgment of Nikhilrelied upon by the respondent has been redundant in view ofthe case of XYZ relied upon by him wherein the word “may”used in Section 156(3) has been read as “shall” by theSupreme Court. Therefore, on an application under Section156(3) if the cognizable offence is made out, the Magistrate isbound to direct the investigation. He relied on the case ofSindhu Janak Nagargoje Vs. State of Maharashtra and othersin Criminal Appeal No.2351 2023 (arising out of SLP (Cri.)No.5883 of 2020). In that case, the case of Lalita Kumari Vs.State of Uttar Pradesh and others ; (2014) 2 SCC 1 wasconsidered, and it has been observed that in view of the ratiolaid down in such cases the registration of FIR is mandatoryunder Section 154 of the Cr.P.C. if the information disclosescommission of cognizable offence. He further relied on the caseof Shadakshari Vs. State of Karnataka and others ; MANU 11 Cri.Appln.2368-22+1.odtSupreme Court 0042 of 2024. A complaint was filed againstthe applicant for irregularly creating the documents of propertyin the name of the deceased person despite knowing that thosewere fake documents, such as the death certificate, family treeof the original successor of the land of the appellate etc., forillegal gain. The accused/respondent No.2 had filed a petitionunder Section 482 of the Cr.P.C. for quashing of the FIRregistered on the above allegations. The High Court recordedthe findings that there were specific and serious allegationsagainst respondent No.2, even as to the creation of the deathcertificate of a living person. A reading of the FIR made out acase for investigation, and it was too premature to interferewith such FIR. Adverting to the case of Lalita Kumari, the Highdid not interfere, though granted liberty to respondent No.2 toseek his legal remedy in the event of any adverse report ismade. Subsequently, a report under Section 173 of Cr.P.C. wassubmitted for the offences punishable under Sections 471, 468,467, 465, 420, 409, 409, 466 and 423, read with Section 34 ofthe IPC. Again, respondent No.2 approached the High Courtunder Section 482 of the Cr.P.C. for quashing the complaintdated 19.12.2016. The question before the Court was whethersanction was required to prosecute respondent No.2 (publicservant), who faces accusation, amongst others, of creating 12 Cri.Appln.2368-22+1.odtfake documents by misusing his official position as a VillageAccountant, thus the public servant?13.The expression of “official duty” defined in the case ofState of Orissa Vs. Ganesh Chandra Jew; (2004) 8 SCC 40 wasreferred to, which means the act or omission must have beendone by the public servant in the course of his service and thatit should have been done in discharge of his duty. Section 197of the Code of Criminal Procedure does not extend itsprotective cover to every act or omission done by a publicservant while in service but restricts its scope of operation toonly those acts or omissions which are done by a public servantin discharge of official duty. Further, it was held that a view canbe taken that manufacturing of such documents or fabricationof records cannot be a part of the official duty of a publicservant. If that be the position, the High Court was not justifiedin quashing the complaint as well as the charge sheet in itsentirety, more so when there are two other accused personsbesides respondent No.2.14.He further relied on the case of Sanjay Nathmal Jain andothers Vs. The State of Maharashtra and others;MANU/MH/4412/2023. The facts of that case, were that the 13 Cri.Appln.2368-22+1.odtlandlord was interested in seeking possession of the premiseslet out to tenants. The tenants had filed the suit for injunctionagainst the landlord and subsequent purchasers restrainingthem from obstructing their possession over the property. Thelandlord committed suicide. The deceased left the suicide note.However, no offence was registered. Tenants were called tothe Police Station, and they were detained for more than 24hours. While they were in police custody, the premises weredemolished. The documents were executed from them in thepresence of the police personnel. The contents of the documentwere approved by PI of Police Station. The documents were tothe effect that the tenants were voluntarily surrenderingtenancy rights in favour of the landlord. The landlord had filedan application under Section 156(3) of the Cr.P.C. The learnedMagistrate after verification of the complaint, directed theinquiry under Section 202 of the Code of Criminal Procedure.However, dissatisfied with the said order, the revision waspreferred before the learned Sessions Court. The learnedSessions Court, by its order, directed that his application beforwarded to the concerned Police Station for investigationunder Section 156(3) of the Cr.P.C. That order was impugnedbefore the High Court. The High Court observed that primafacie perusal of the facts on record indicates that the 14 Cri.Appln.2368-22+1.odtcognizable offences were committed, and in suchcircumstances, it was not open for the Magistrate to refuseinvestigation under Section 156(3) of the Cr.P.C. Thus, oncecognizable offence is made out, it is duty of the Magistrate toexercise powers under Section 156(3) and direct investigationtherein. 15.He further relied on the case of Kisan Baliram Rathodand others Vs. State of Maharashtra ; MANU/MH/4486/2023.In this case, the question was regarding the sanction underSection 197 of the Cr.P.C. The case of Station House Officer,CBI/ACB/Banglore Vs. B. A. Shrinivasan and another; 2020ALL SCR (Cri.) 163, was referred. In the said case, the Hon’bleSupreme Court held that the protection under Section 197 ofthe Cr.P.C. is available to the public servants when an offence issaid to have been committed ‘while acting or purporting to actin discharge of their official duty’, but where the acts areperformed using the office as a mere cloak for unlawful gains,such acts are not protected. In order to come to the conclusionwhether the claim of the accused that the act he did in thecourse of the performance of his official duty was a reasonableone and neither pretended nor fanciful, can be examinedduring the course of trial by giving opportunity to the defence 15 Cri.Appln.2368-22+1.odtto establish it. The question of sanction should be left open tobe decided in the main judgment which may be delivered uponthe conclusion of the trial.16.Further, he relied on the case of XYZ Vs. State of MadhyaPradesh and others ; 2022 SCC OnLine SC 1002. The facts ofthis case were that the victim/appellant was working as a YogaInstructor at some institute. Respondent No.2, at the relevanttime, was the Vice Chancellor of the institute. It was allegedagainst him that he touched the victim inappropriately at theinstitute, upon which she disengaged herself and shouted athim. She lodged a complaint with the police station,apprehending that the police had not taken any action. Shefound that no action had been taken on her complaint. Sheagain filed another complaint to the Superintendent of Policeand both the Superintendent and to the P.S. Gole Ka Mandiragain on 24.02.2020. Eventually, the appellant moved to theJudicial Magistrate First Class, Gwalior, under Section 156(3)of the Cr.P.C. on 26.02.2020. The JMFC directed the police tofile a status report. It appears that the proceedings before theJMFC were delayed due to the onset of the Covid-19 pandemic.The Internal Complaints Committee was constituted. Again thecase of Lalita Kumari was considered in this case. 16 Cri.Appln.2368-22+1.odt17.The learned counsel Mr. Katneshwarkar relied on thecase of this Bench in Criminal Application No.2816 of 2018Nikhil s/o Dhondiram Katke Vs. The State of Maharashtra andothers, dated 25.04.2019. In that case, an application underSection 156(3) of the Cr.P.C. was filed. However, instead ofdirecting the investigation, the learned Magistrate grantedliberty to the applicant to adopt the later course under Section200 of the Code by treating the application filed by theapplicant as a complaint under Section 2(d) of the Code. Inthat case, various pronouncements of the different HighCourts, and Hon’ble Supreme Court were placed before theCourt. The Court considered those judicial pronouncements.The case of Dhariwal Tobacco Products Ltd. and others Vs.State of Maharashtra and another; AIR 2009 SC 1032 was alsoreferred to. In that case, it was held that there is noimpediment entertaining the present petition (under Section482 of the Cr.P.C.) even after efficacious remedy is available tothe petitioner.18.In Nikhil’s case (supra), this Court referred to the case ofPanchbhai Popatbhai Butani and others Vs. State ofMaharashtra and others; 2010(1) B. Bom.C.R.(Cri.) 1, in which 17 Cri.Appln.2368-22+1.odtthe Full Bench held that reference to the provision of Section190 in Section 156(3) of the Code is merely to determine thejurisdiction of the Magistrate to whom the application has tobe made by the aggrieved person or the complainant. It doesnot controls the powers of the Court to direct registrationand/or investigation as contemplated under Section 156(3) ofthe Code. It has also been observed that the detail factualallegations are not necessary for an application under Section156(3) Cr.P.C. nor any format has been prescribed for the same,including the prayer clause. It is for the complainant or theaggrieved person to decide, whether he wishes the matter to beinvested under Section 156(3) of the Code, or whether hisapplication is to be treated as a regular “complaint” undersection 200 of the Code. It is for the complainant or aggrievedperson to bring it to the notice of the Court under Section156(3) of the Code that despite intimation to police, it hasfailed to act and investigate into a cognizable offence inaccordance with law. In the aforesaid Panchabhai's case, thethen Lordship further elucidated that once such a petitionunder Section 156(3) is presented, the learned Magistrate isfree to exercise appropriate jurisdiction in accordance with lawand at the request of the complainant. But, it cannot berejected by the Court merely on the ground that it does not 18 Cri.Appln.2368-22+1.odtcontain the proper prayer clause insofar as it discloses thecommission of a cognizable offence. In paragraph No.55 of theaforesaid Panchbhai'’s case, has observed thus:“55...............… Even in Criminal jurisprudence, the lawof pleading is applicable to certain extent. Thus, where aperson files a complaint under section 200 of the Code ofCriminal Procedure, he is expected to state the facts, givingdetails and correct versions which would amount tocommitting of an offence alleged. It has to satisfy the basicingredients of such an offence and it is expected of thecomplainant to make a proper complaint as contemplatedunder section 2(d) of the Code with appropriate prayers.In contradistinction to this, such strict rule of pleadingscannot be made applicable to the provisions of section 156(3) of the Code as it is result of a default and evenintimation in appropriate format may suffice the purposein some cases. That certainly does not mean that undersection 156 (3) properly drafted petition cannot be moved.Rather if a petition with complete facts, stating detailedand definite events essential to constitute the offencealleged to have been committed is presented and theprayers have been made, discretion of the Magistratewould be much wider than merely directing investigationin terms of section 156(3) and the Court even could takecognizance of the offence if the complaint is filed undersection 200 of the Code. If a complaint does not disclose acognizable offence with proper facts, it may be liable to bedismissed and/or rejected by the Magistrate.” 19 Cri.Appln.2368-22+1.odt19.The learned counsel Mr. Katneshwarkar also referred tothe case of Ramdeo Food Products Vs. State Gujarat; AIR 2015SC 1742. It has been observed in paragraph No.22 as follows;“22. Thus, we answer the first question by holding thatthe direction under Section 156(3) is to be issued, onlyafter application of mind by the Magistrate. When theMagistrate does not take cognizance and does not find itnecessary to postpone issuance of process and finds acase made out to proceed forthwith, direction under thesaid provision is issued. In other words, where onaccount of credibility of information available, orweighing the interest of justice, it is consideredappropriate to straightway direct investigation, such adirection is issued. Cases where Magistrate takescognizance and postpones issuance of process are caseswhere the Magistrate has yet to determine "existence ofsufficient ground to proceed" Category of cases fallingunder Para.120.6 in Lalita Kumari (supra) may fall underSection 202. Subject to these broad guidelines availablefrom the scheme of the Code, exercise of discretion bythe Magistrate is guided by interest of justice from case tocase.”20.In Nikhil'’s case (supra), it has also been observed thatthe application under Section 156(3) would fall within thecategory of such applications cannot be turned as a ‘complaint’under Section 2(d) of the Code. Moreover, as described above,there is a distinction between the application under Section 20 Cri.Appln.2368-22+1.odt156(3) and a complaint defined under Section 2(d) of theCode. But it cannot be overlooked that the powers underSection 156(3) warrants application of judicious mind, and theapplicant or aggrieved person, on its own whim, invoke theauthority of the Magistrate. It is to be borne in mind that theuse of word “may” in Section 156(3) instead of “shall” is verysignificant and clearly indicates the discretion to be exercisedby the Magistrate in the matter, and he can, in appropriatecases, refuse to order an investigation. Therefore, it isfallacious to appreciate that, after receiving the applicationunder Section 156(3), the Magistrate is duty-bound to pass anorder to register the case and investigate if the cognizableoffice is disclosed. 21.He further relied on the case of Sainath RamraoThombre Vs. State of Maharashtra and another ; 2018 ALL MR(Cri.) 2151. In that case, it has been held that the complaintfiled after 01.11.2016 (Amendment to Section 156(3)Maharashtra), without obtaining sanction, when the amendedprovision was in force, Magistrate, had no jurisdiction to issuedirection for the investigation without sanction. 21 Cri.Appln.2368-22+1.odt22.The arguments of the learned counsel ofrespondent/Mayor were also the same that in view of Section482 of the Maharashtra Municipal Corporation Act, andSection 21 of the IPC and 197 of the Cr.P.C., Magistrate had nojurisdiction to issue direction for investigation withoutsanction. He referred to Section 197 of Cr.P.C. and raised thepoint that only action against the public servant could be takenif not done in discharge of the official duty. However, if theofficial duties were discharged or acts purported to be done indischarge of official duties, the public servants are protectedunder Section 197 of the Cr.P.C. He reiterate similar argumentsof learned counsel Mr. Katneshwarkar about the powers of theMagistrate under Section 156(3) and pointed out that it cannotbe mechanically exercised. There must be satisfaction of theMagistrate.23.He also raised the point that the order dismissing thepetition for default is not maintainable in the presentapplications. The learned Magistrate had refused to issuedirection under Section 156(3) but granted liberty to thecomplainant to keep the said application as complaint underSection 2(d), the time was granted to intimate the Court by thenext date. That order was assailed in revision. The learned 22 Cri.Appln.2368-22+1.odtSessions Court also dismissed the said revision. Accordingly,on 17.09.2021, learned Magistrate pleased to dispose of thecomplaint in view of non-compliance of the order dated07.02.2021. Therefore, that order could not be challenged inthese applications. He also challenged the locus of theapplicant, and submits that the allegations that the accusedcounter file the noting of the office of Jalgaon City MunicipalCorporation in that event, the Commissioner or Officerappointed by him through the proper person to raise and lodgethe complaint. The Commissioner of the Corporation by itsletter dated 26.12.2019, specifically stated that in this matter,no criminal act causing financial loss to the MunicipalCorporation occurred. Therefore, the applicant had no locus tofile the applications.24.Learned counsel for the respondents also argued that itis not the rule of law to issue the investigation under Section156(3). Magistrate has to pass the appropriate orders afterapplication of mind. If the Magistrate does not find it necessaryto take cognizance, he may postpone the issuance of theprocess. The law laid down in Lalita Kumari relied upon by theapplicant was also considered in the case of Ramdeo FoodProducts (Supra). 23 Cri.Appln.2368-22+1.odt25.The law is settled on the powers under Section 156(3) ofCr.P.C., the Court does not find substance in the complaint theMagistrate is not bound to direct the investigation underSection 156(3). The Magistrate has the discretion to exercisethe powers under that section. Granting an opportunity to treatthe application under Section 156(3) as a complaint underSection 200 of the Cr.P.C. is not illegal.26.The question has been raised can the petitioner seek toquash the order of disposing of the case since he did notinform the Court to treat the application as a complaint. 27.The facts reveal that the applicant did not opt to treatthe application as a complaint. Hence, the learned Magistratedispose of the application as he did not exercise the powersunder Section 156 (3) of the Cr.P.C. In the circumstances, itwould be difficult to accept the case of the applicant that orderdisposing of the application finally could be impugned beforethis Court. He can not play hot and cold at a time.28.The burden was on the petitioner to satisfy the Courtthat there was a material to direct investigation under Section156(3) of the Cr.P.C. The learned Magistrate, after discussing 24 Cri.Appln.2368-22+1.odtthe facts and some case laws, passed the order rejecting theprayer under Section 156(3) of the Cr.P.C. The reasons havealso been recorded that there is no actual necessity of anyinvestigation for the collection of the evidence as the complaintwas based upon documentary evidence. There was nopossibility of destroying or tampering with the evidence. Itwould be a drastic step to give directions to lodge an FIRagainst an individual, specially, when the documentaryevidence is available on record. Therefore, it would not beproper to issue directions for investigation under Section156(3) of the Cr.P.C. The application squarely falls within theambit of definition of complaint under Section 2(d) of Cr.P.C.The order was speaking. It reflects that the Court has appliedthe mind.29.Learned revisional Court also passed the order in detail,considering the facts of the case and after hearing therespective learned counsels. The learned revisional Courtdiscussed the procedure for the recovery of the compensationpassed under the Land Acquisition Act. The revisional Courtobserved that the dispute is with respect to the disbursing ofthe amount by the Municipal Council, Jalgaon, to thepetitioner. It is further observed that it appears from the record 25 Cri.Appln.2368-22+1.odtthat there was a correspondence with the Municipal Council bythe petitioner himself as well as through the Land AcquisitionOfficer for compensation. If it is a fact, then instead of gettingthe execution of the award through proper forum, it appearsthat petitioner is saddling the responsibilities over respondentNos.2 and 3. The revisional Court has specifically observed thatit appears that the petitioner failed to follow the statutoryprocedure or requirement strictly under the Land AcquisitionAct. Instead of following the procedure to get thecompensation for his acquired lands, it appears that thepetitioner was bent upon targeting respondents Nos.2 and 3.Respondent Nos.2 and 3 were neither interested parties to theaward nor part of any dispute that arises to have theapportionment of the award or any part thereof. Therefore, theCourt expressed the opinion that it is not the case to issuedirections to the police under Section 156(3) of the Cr.P.C. toinvestigate the matter. It has upheld the order of the learnedJudicial Magistrate First Class. 30.Both orders impugned before this Court were passedafter applying mind. Both Courts have exercised the discretionto exercise powers under Section 156 (3). They did not 26 Cri.Appln.2368-22+1.odtmechanically pass the orders as prayed. Hence, there is noreason to interfere with the impugned orders. 31.The objection has been raised that the respondents werepublic servants. Therefore, the sanction under Section 197 isessential. The learned counsels for the respondents haveadvanced the arguments and relied upon the case laws.However, the learned Judicial Magistrate First Class did nottouch the issue. 32.Section 197 of the Cr.P.C. provides that when theprosecution is against the public servant, the Court shall nottake cognizance of such offences, except with the previoussanction of his employer. The State of Maharashtra added twoprovision to Section 156(3) of the Cr.P.C., which provides thatno Magistrate shall order an investigation under that Sectionagainst the public servant as defined under any other law forthe time being in force, in respect of the acts done by suchpublic officer, while acting or purporting to act in discharge ofhis official duties, except with previous sanction under Section197 of the Cr.P.C. or under any law for the time in force.Admittedly, the petitioner did not produce any such applicationaddressed to the competent authority. The allegations levelled 27 Cri.Appln.2368-22+1.odtagainst the respondents purporting to act in the discharge oftheir official duties. There was nothing to believe thatrespondents exceeded their powers and does an extraneous actwhich was not their official duty. Therefore, the Court acceptsthe arguments of the learned counsel for respondent Nos.2 and3 that the application was bad for no previous sanction as perSection 197 of the Cr.P.C. (Maharashtra Amendment).33.The applicants were interested in getting compensationfor the acquisition of land. It also smells foul from the natureof the allegation. The dispute might have probably arosebetween the then Mayor and the applicant. Therefore, thecompensation was not paid even though the MunicipalCommissioner had put the note.34.The question is whether changing the administrativedecision is an offence?35.The financial decisions in Administration are flexible,and depend on the situation demands. Their decision does notbind them if the expenses over the different head are notfeasible. It’s a policy decision of the institutions. Here, therewas no case that the respondent Nos.2 and 3 denied thepassing of the award. Mere misplacing or missing the papers 28 Cri.Appln.2368-22+1.odtdid not affect the rights of the petitioner nor it is an offence.However, the reasons best known to the applicant, why he wasinsisting on recovering the amount without taking properrecourse from the Court of law. The allegations do not reflectthat the respondents had ill intentions in not implementing theoffice notes. The acquiring body has a right to verify the facts.The contents of the complainant do not make out a cognizableoffence against the respondents. Filing such a complaint seemsto be a sheer pressurizing tactic on the public servants. Theimpugned orders are legal and proper. 36.For the above reasons, both criminal applications standdismissed with costs of Rs.25,000/- each to be paid to therespondent Nos.2 and 3, respectively.37.R and P be returned to the learned Trial Court. (S. G. MEHARE, J.)...vmk/-