Sahruddin Hasanbai Rayani & Ors. vs The State Of Maharashtra & Anr.

Heard.

ADMIT. Heard finally by the consent of learned counsel for the parties.

The applicants have filed the present application praying for quashing of First Information Report No.10/2019 dated 04.01.2019 registered with the Police Station Ghatangi District Yavatmal for offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code (for short, ‘I.P.C.’).

The facts as stated in the application are as under:-

The applicants are the Executive Members of a Public Trust namely “Shikshan Prasark Mandal, Ghatanji” District Yavatmal” which runs schools and colleges under the aspices of the said Trust. It is stated in the application that the said Trust applied to the Municipal Council, Ghatanji for permission to extend the building of school situated at plot No.60 as the space was insufficient for accommodation. In the said application, it was submitted that the Municipal Council has already granted permission for ground floor, and since the said Trust was carrying out construction on first floor based on due permission as the application was not decided within the stipulated period. However, the said Municipal Council informed the Trust that the permission sought could not be granted and vide letter dated 02.01.2006, the Trust was asked to stop the construction. In response to this the said Trust made a representation on 04.01.2006 but of no use. The Trust thereafter, filed writ petition bearing No.1520/2006 through its President challenging the impugned order of rejection of the application and action of stopping of work along with the notice of demolishing of construction. It is further stated in the application that this Court while issuing notices granted an order of status quo on 27.03.2006. The non-applicant No.2 in the present matter filed an application for intervention in the said writ petition but the same came to be rejected. However, during pendency of the said writ petition a communication dated 16.10.2006 was allegedly issued by Director of Town Planning to withdraw the writ petition in question so that permission for construction can be issued. Relying on the said communication, the Trust withdrew the writ petition on 13.03.2008.

It is further stated in the application that thereafter it was realised that the communication dated 16.10.2006 is not genuine and therefore, the said Trust immediately filed Miscellaneous Civil Application bearing ST. No.15731/2008 along with Civil Application No.7995/2008 for recalling the said order or reviewing the same. This Court thereafter granted liberty to the applicants to file a fresh petition against the original cause of action vide its order dated 24.10.2008. Pursuant to the said order, the applicants also filed petition/appeal before the Hon’ble Minister, Urban Development Department, State of Maharashtra for grant of permission to construct and operate the school on the first floor of survey No.60 at Mouza Ghatanji.

However, thereafter non-applicant No.2 claiming that Director of Town Planning, Pune did not issue the said communication on the basis of which the earlier writ petition was withdrawn, filed a private Criminal Complaint Case No.14/2019 against only one Shri Sadaruddin Alibhai Gilani, the President of the Society. The said Criminal Complaint Case number was registered as 14/2009. The said case was dismissed by the Judicial Magistrate First Class, Ghatanji by its order dated 23.07.2009 in view of Section 195(b)(ii) of Criminal Procedure Code holding therein that complainant is not entitled to file the complaint. The President of the Society filed a Criminal Writ Petition bearing No.139/2018 before this Court challenging the order of Sessions Court which came to be dismissed on 23.07.2018. Thus, the complaint before the learned Judicial Magistrate First Class, Ghatanji was restored and an order was passed below Exh.25 on 01.08.2018 thereby directing non-applicant No.1 to conduct investigation under Section 156(3) of the Cr.P.C.

On the basis of the said order, non-applicant No.1 registered First Information Report on 04.01.2019 and has also made present applicants as accused therein. It is this First Information Report which is challenged in the present application on various grounds as stated in the same.

We have heard Mr. Abhay Sambre, learned counsel for the applicants, Mr. M.J. Khan, learned APP for the State along with Mr. T.S. Deshpande, learned counsel for non-applicant No.2.

Learned counsel for the applicants submits that perusal of the First Information Report clearly shows that no case is made out against the present applicants as same is lodged with malafide intention only to harass them. He further points out that in the original complaint, the complainant/non-applicant No.2 herein has only named the President of the Society and not the present applicants and in fact there were no allegation against the present applicants. He therefore, submits that no prima-facie case is made out against the present applicants and they are falsely implicated just because they are office bearers of the society. He therefore, prays for quashing the criminal proceedings against them.

Per contra, learned APP as also learned counsel for non-applicant No.2 while opposing the contentions made by learned counsel for the applicants states that non-applicant No.1 had conducted the investigation by recording the statement of the complainant and have further obtained the relevant document from the complainant which includes the alleged forged document dated 16.10.2006 submitted by the said Trust before this Court while withdrawing the petition. He further submits that they have obtained one more document dated 20.06.2008 issued by the Town Planning Department stating that the alleged fraudulent document dated 16.10.2006 was never issued by the Town Planning Department. It is further stated that perusal of the material collected by the answering non-applicant prima facie, reveals the role of the present applicants in the said crime as they were the the members of the said Society/Trust. He therefore, prays for rejection of the application.

Learned counsel for the non-applicant No.2 supports the learned APP and submits that this is not a fit case to exercise inherent powers under Section 482 of the Criminal Procedure Code.

In the backdrop of these facts, we have perused the material on record. Filing of writ petition by said Trust and its withdrawal on the basis of letter dated 16.10.2006 is not disputed. It is also not disputed that on realising that said letter was forged, the said Trust immediately filed a Review Application on which the order was passed on 24.10.2008 granting liberty to the Trust to file fresh petition against the original cause of action. In that view of the matter, the subsequent criminal complaint filed by the non-applicant No.2 leading to lodging of First Information Report is perused. As can be seen from the said criminal complaint the only non-applicant in the said complaint is erstwhile President of the Trust i.e. Sadaruddin Alibhai Gilani. Thus, the present applicants do not find place in the array of non-applicant/accused in the criminal complaint. Further more perusal of the criminal complaint would reveal that no specific role is attributed to the present applicants. Even in the First Information Report their is no role attributed to the present applicants so as to implicate them under various sections as mentioned in the First Information Report. It seems that only because the applicants were members of the Executive Committee, they are roped in as accused persons. Thus, there are no material particulars as required in law.

As far as offence under Section 420 is concerned, it is settled principle of law that for attracting the said offence necessary ingredients would be dishonest intention right at the inception i.e. beginning. No such intention, much less dishonest one is attributed to the present applicants either in the criminal complaint filed by the non-applicant No.2 or the result of First Information Report.

Further more, as far as offences under Sections 468 and 471 of the IPC are concerned, they contemplate forging of documents. It is nobody’s case that the letter which led to withdrawal of writ petition was forged by the applicants or at their behest. In fact, the applicants had no cause or occasion to forge the said letter as there was an ad interim order operating in their favour. Thus, it seems that there is some mischief played by some other persons but certainly not the applicants. The criminal prosecution based on such vague material if allowed to be continued would amount to abuse of process of Court. The situation therefore, would squarely fall within laid down parameters of State of Haryana and others vs. Bhajanlal and others reported in 1992 Supp(1) Supreme Court Cases 335 where it is stated as under:-

In that view of the matter, we therefore, pass the following order:-

The criminal application stands disposed of.

Rule accordingly.

Pending application, if any, also stands disposed of.