PRAHLAD SHRINIVASRAO KULKARNI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS proceeding has been filed by original accused No. 4 challenging the order dated 7/2/1990 of the Additional Sessions Judge, Latur in Criminal Revision No. 29 of 1988, dismissing the revision and upholding the order dated 13/11/1987 of the Judicial Magistrate, First Class, Udgir in Criminal Case No. 22 of 1984, rejecting the relief of dismissal of the criminal prosecution for want of necessary authority.

(2.) RESPONDENT No. 2 to the application is Gopinath Ganpatrao Pensaiwa the complainant in the case. Anil and Rukman are the cousins of respondent No. 2. It is alleged that, on 18. 11. 1983 the present petitioner (original accused No. 4) and Devidas Sakhare (original accused No. 3), in collusion with Anil and Rukman (original accused No. 1 and 2), fabricated false evidence by preparing a mutation entry in respect of Survey No. 28/1 situated at village Malkapur in Udgir Taluka. It is further alleged that, this false evidence was fabricated for the use in a judicial proceeding, namely, Regular Civil Suit No. 267 of 1982 with a view to help original accused Nos. 1 and 2 in the said civil litigation. The concerned mutation entry No. 66 is dated 2/10/1982. Respondent No. 2, Gopinath Ganpat then filed a criminal complaint on 18/11/1983 at Police Station Udgir and offences punishable under sections 169, 193, 465 and 466 read with section 34, Indian Penal Code, were registered at Crime No. 48 of 1983. Original accused Nos. 3 and 4 are alleged to have certified the said entry in their official capacity as Naib Tahsildar and the Tahsildar.

(3.) DURING the pendency of the Criminal Prosecution in Criminal Case No. 22 of 1984 before Judicial Magistrate, First Class, Udgir, the present petitioner accused No. 4 filed an application Ext. 37 on 17/10/1986. Original accused No. 3 - Devidas also filed similar application Ext. 40 on 27/11/1986. Accused Nos. 3 and 4 alleged, by these two applications, that the criminal proceedings have been filed without obtaining the necessary prior permission of the higher authorities to prosecute accused Nos. 3 and 4 as such, accused Nos. 3 and 4 are liable to be discharged under section 197 of the Code of Criminal Procedure in the absence of the necessary sanction. It was also alleged by the accused Nos. 3 and 4 in these two applications that, the fabricated document, namely, Mutation Entry No. 66 was subject to the decision of the Civil Court and unless the Civil Court comes to a conclusion that said mutation entry was a fabricated document, the criminal prosecution was premature. Accused Nos. 3 and 4 therefore, raised a plea under section 195 (1) (b) (i) and (ii) of the Code of Criminal Procedure on the ground that, a complaint in writing has to be filed by the Civil Court. On these two ground the cognizance of the complaint filed by respondent No. 2 came to be assailed. Both the accused filed these applications prior to framing of the charge.