High Court

Legal Reasoning

(1)criwp1034.22IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1034 OF 2022BHASKAR SARJERAO DARADEVSTHE STATE OF MAHARASHTRA AND OTHERSMr. N. B. Narwade, Advocate for the petitioner Mr. R. B. Dhaware, APP for the respondents No.1Mr. A. N. Nagargoje, Advocate for respondent Nos. 2,3,5 & 6Mr. R. V. Naiknaware, Advocate for the respondent No. 4Mr. R. R. Karpe, Advocate for the respondent No. 7ANDCRIMINAL WRIT PETITION NO.1036 OF 2022BHASKAR SARJERAO DARADEVSTHE STATE OF MAHARASHTRA AND OTHERSMr. N. B. Narwade, Advocate for the petitioner Mr. R. R. Karpe, Advocate for the respondent No. 2Mr. R. B. Dhaware, APP for the respondents/StateCORAM:KISHORE C. SANT, J.RESERVED ON:18th JULY, 2025PRONOUNCED ON:18th AUGUST, 2025P. C. 1. Both these writ petitions are arising out of the sameproceedings and therefore, are taken together. Both the petitionsare filed by the same petitioner-original complainant whereaccused Vinod Garje i.e. respondent No. 2 in Cri. Writ Petition1 of 11 (2)criwp1034.22No. 1236/2022 and respondent No. 7 in writ petition No.1034/2022 are the same. The facts in short are as follows facts.2.That the present petitioner filed OMA No. 202/2016in the court of learned JMFC, Pathardi against the respondentsfor the offences punishable under Sections 420, 166, 167, 465,466, 467, 468, 471, 504, 506 read with section 34 of the IPC. Itis alleged that accused No.1 has purchased the land alongwithstructure from his mother Sundarbai Garje. It is alleged that inrespect of the said land bogus entries are taken by the accusedpersons in connivance with each other. The accused Nos. 1 to 6are the Government Officers working in the Land RecordDepartment, Pathardi and one accused No.4 i.e. Nanabhau wasthe Chief Officer, Municipal Council, Pathardi. The allegationsare that by taking entry in connivance with each other the areaof the land purchased by accused No. 1 is shown to be morethan what he purchased and thus the accused persons havecommitted an offence.2 of 11 (3)criwp1034.223.So far as Cri. Writ Petition No.1036/2022 is out ofthe same facts from another complaint. In both the matters achallenge is to the common order dated 30-05-2022 passed bythe learned Additional Sessions Judge, Ahmednagar in CriminalRevision Application No. 43/2019 & 123/2019.4.Both the revision application of the petitioner camebe dismissed. In Cri. Revision Application No.43/2019 achallenge was to the order dated 01-03-2019 in Cri. M. A.No.202/2016 passed by the learned Magistrate, Pathardi for notissuing process under sections 204 of the Cr. P. C. and dismissedthe complaint against accused No. 1 for the offences punishableunder Sections 166, 167, 504, 506 of the IPC and issuingprocess only for the offences under Sections 420, 465, 466, 467,468 and 471 of the IPC and dismissed the complaint entirelyagainst accused Nos. 2 to 6 being public servant.5.The revision application was filed by the accusedNo.1 challenging order issuing process for the offences under3 of 11 (4)criwp1034.22Sections 420, 465, 466, 467, 468 and 471 of the IPC.6.It is the case of the complainant i.e. presentpetitioner that he purchased the land adm. 190 sq. mts. fromsurvey No. 3/1 situated at Pathardi on 18-03-2016 and is inpossession of the said land. On West side of his land there is plotNo.977, adm. 2640 sq. fts. out of that land, accused No. 1purchased 1440 sq. fts. land alongwith construction on 22-11-2022 from Sundarabai Garje. Mutation entry No. 3016 came tobe recorded in favour of the complainant. However, same is notconfirmed as accused No. 1 in connivance with accused No. 2 to6 kept that entry pending. Thereafter, it is alleged that theyprepared false record in respect of the CTS No. 977 and shownthe area as 165.30 sq. mts. which was in fact 133.82 sq. mts.Accused No.4-the Chief Officer of the Municipal Councilsanctioned the permission for construction on the said plot. Thatentry is falsely taken. It is, thus, alleged that accused No. 1encroached upon the land of the complainant. Accused Nos. 5and 6 Surveyor wrongly measured the land showing excess land4 of 11 (5)criwp1034.22in favour of the accused No.1. On this complaint the learnedMagistrate issued process only against accused No.1 as statedabove and dismissed the complaint against other.7.Mr. Narwade, learned advocate for the petitionervehemently argued that in the present case it is clearly seen thataccused persons have created false and bogus record in respectof the land survey No. 977. A case was clearly made out againstall the accused persons. The learned JMFC, Aurangabad rejectedthe compliant as against accused Nos. 2 to 6 being publicservant. He submits that even against accused No. 1 the processought to have been issued for the offence alleged in the FIR. Stillhas issued the process only under sections 420, 465, 466, 467,468 & 471. He pointed the sale deeds in favour of the accusedand complainant. He submits that notice was also given to theaccused persons but still no action was taken. Total land surveyNo. 977 is 276.7 sq. mts. Out of the said land Sundarabai washaving 133.83 sq. mts. However, it was shown that the saidentry is of 22-12-2014. However, immediately on 29-12-20145 of 11 (6)criwp1034.22the area is shown to be 165.30 sq. mts. in the name ofSundarabai. Thus, it is clear that without following anyprocedure the land in possession of the Sundrabai is shown tobe more. Thus, case of cheating is clearly made out. All theentries are by the respondents. Clearly a case was made out toissue process against them as well. Still no cognizance wastaken. A report was submitted by the Investigating Officerstating that the area of the land is shown to be 165.30 sq. mts.when in fact the land was adm. 133.83 sq. mts. and stated thatoffence is made out. Still the court has failed to appreciate thesaid fact and issued process only against accused No.1 onlyunder Sections 420, 465, 466, 467, 468 & 471 and rejected thesame for the offences punishable under Sections 166, 167, 504,506 against accused No.1 and wrongly rejected the entirecomplaint against respondent Nos. 2 to 6. He submits that pointof sanction would not come at this stage as the respondents arefound to have indulged into totally legal act not connected withduty. The observations by the learned JMFC are thus, notcorrect. He invited attention to the report submitted by the6 of 11 (7)criwp1034.22office of the District Superintendent Land Record wherein it wasclearly stated that the officers & employees from his office havecooperated and encouraged the encroachment on the saidsurvey No. 3405. Report was submitted on the application of thepetitioner. The petitioner had sought a sanction from theauthorities to prosecute the respondents by filing an application.Said application was received on 24-05-2016 by the ChiefAssistant Superintendent City Survey Office. The Prevention ofFragmentation Act, Commissioner Pune, which clearly showsthat sanction was solicited. However, same is not granted. Thus,there is deemed sanction. The learned Sessions Judge failed toappreciate all these facts. He submits that revision is wronglyrejected. So far as application of mind, he submits that there isno application of mind. In the operative part of the order, itself itis seen that revision application No.43/2019 is dismissed.Revision application No. 123/2019 is allowed. However, furtherthe the order shows that though the revision is dismissed, theorder of the Judicial Magistrate is set aside. This runs contraryto each other. He submits that petitions deserves to be allowed.7 of 11 (8)criwp1034.228.The learned advocate Mr. Nagargoje vehementlysubmits that dispute is purely of civil nature. The land wasoriginally belonging to one Mohanlal who sold his 245.35 sq.mts area to one Sumatibai. Thus, the area of 31.35 sq. mts.remained with Mohanlal. While taking the entries in the land hisname was wrongly deleted from the remaining land. Sumatibaisold the land 111.52 sq. mts out of her 245.35 sq. mts land toone Abdul on 02-05-1980. Thus, remaining land was 133.83with the Sumatibai. That land of Sumatibai sold to mother ofrespondent No. 7 i.e. accused No. 1. She sold remaining 133.83sq. mts land in 2015-2016 to one Vinod and Abdul & filed anapplication for re-measurement of the land. It is thereafter land35.83 came to be added to the land of Vinod and Abdul. Saidwas never challenged by any of the parties. On 17-09-2016District Superintendent of Land Record had cancelled re-measuarement of the part of the land of CTS No. 977. Herestored entry in the name of Mohanlal to the extent of 31.35sq. mts. He cancelled PR card of 977/1 and 997/2 and directed8 of 11 (9)criwp1034.22to keep one PR card of entire survey no. 977 by well reasonedorder. The entry is taken on the basis of order. He submits thatno record of the land of the petitioner is changed. There is noloss caused to the petitioner. The officers have discharged theirduties. There was no application filed seeking sanction from thehigher authorities to file a complaint against the officers and theemployees of the Land Record. There is no record to implicatethe accused Nos. 2 to 6. It is only for the first time on 05-08-2016, a complaint was made. 9.The learned advocate for respondent No. 4- Mr.Naikware submits that the respondent No. 4 was Chief Officer ofMunicipal Council. He has taken entry on the basis ofdocuments by doing proper verification. In the verification of thecomplaint also there is no allegation made against the accusedNo. 4.10.It is submitted that accused No. 1- respondent No. 7is the Medical practitioner. The learned advocate for the9 of 11 (10)criwp1034.22respondent No.7 adopts the argument of Mr. Nagargoje. Hefurther submits that in respect of the land a civil litigation isgoing on. The petitioner has initiated the proceeding only togrant 31 Sq. mtr. land. In any case all allegations would showthat this does not fall under the criminal act and is purely a civildispute. He invited the attention to the prayer in the suit filed bythe petitioner. Thus all the respondents prayed for rejection ofthe both criminal writ petitions.11.This court has gone through the judgment passed bythe learned Sessions Court in both the revisions. From the factsstated above, it is seen that dispute is in respect of recording ofthe area of the land. It is not the case of the petitioner that byalleged entries his land is reduced or there is variation in area ofhis land, as it is civil dispute is pending.12.Considering the argument and the complaint it isseen that allegations are in respect of the measurement of theland. This court does not find any reason to interfere with the10 of 11 (11)criwp1034.22impugned order. There is no sanction obtained to prosecute theaccused Nos. 2 to 6. The learned Magistrate considering the caseagainst accused No. 1 has rightly issued process under sections420, 465, 466, 467, 468 & 471 of the IPC. This court does notfind any illegality or perversity in the order. There is no merit inboth the petitions. Therefore, both the criminal writ petitionsstand dismissed. [KISHORE C. SANT, J.]VishalK/criwp1034.2211 of 11