MANOHAR ONKARAPPA MUDNAIK Vs. KUSUMKAR RAMBHAU BIDKAR

JUDGEMENT

(1.) These petitions under Articles 226 and 227 of the Constitution of India are directed against the orders passed by learned First Ad hoc Additional Sessions Judge, Nagpur, on 15-9-2004, whereby the learned Judge allowed Criminal Revision Applications No. 123 and 124 of 2003, setting aside the orders passed by learned Jludicial Magistrate First Class, nagpur, rejecting applications Exhibit 36 in Criminal Complaint No. 158 of 1995 and Exhibits 16 and 17 in Criminal Complaint No. 321 of 1996 moved by the accused.

(2.) Facts, in the context of which the petitions came to be filed, as could be gathered from the petitions, returns, voluminous documents, filed on record, and the elaborate arguments advanced by Smt. Minaxi Iyer, the learned counsel for the petitioners, and Shri J. T. Gilda, the learned counsel for respondent No. 1 are as under: both, the petitioner Manohar Onkarappa Mudnaik, and respondents-original accused A. R. Tiwari and Kusumkar Rambhau Bidkar in Criminal Writ petition No. 151 of 2005 and Kusumkar R. Bidkar, also respondent No. 1 in criminal Writ Petition No. 150 of 2005, were serving in Irrigation Department at nagpur as Sectional Engineer, Deputy Engineer and Sub-Divisional Officer respectively, at the relevant time (hereinafter referred to as "petitioner" "respondent No. 1" and "respondent No. 2" for the sake of brevity). The petitioner had not been allowed to cross efficiency bar by his department. Therefore, he approached Maharashtra Administrative Tribunal by an Original application bearing No. 766/1991, for being permitted to cross efficiency bar. By order dated 26-7-1993 the application was rejected. However, on 4-8-1993 the superintending Engineer allowed the complainant: to cross efficiency bar w. e. f. 1-2-1986, after perusing complainant's Annual Confidential Reports (ACRs). After transfer of the said Superintending Engineer, one Shri D. D. Rewatkar came to be posted as Superintending Engineer and by order dated 16-10-1993, he cancelled the order dated 4-8-1993 passed by his predecessor. The complainant therefore, again approached the Administrative Tribunal by filing Original application No. 1029/1993 on 15-12-1993. Respondents in that Original application, filed a return which was affirmed by A. R. Tiwari, leave reserve deputy Engineer, respondent No. 1 in Criminal Writ Petition No. 151 of 2005, on 25-1-1994. Respondent No. 2 therein, Bidkar, filed an abstract of ACRs of the petitioner, without any authority, wherein the respondent added a remark "political person" in ACRs for 1984-85 and also added classification 'a', 'b', 'c', etc. without any authority. Considering the contentions raised before it the administrative Tribunal dismissed this Original Application No. 1029/1993, by order dated 29-7-1994. The petitioner had preferred review application bearing no. 98 of 1994 before the Administrative Tribunal, wherein respondent No. 2, without any authority filed a return on behalf of Superintending Engineer, respondent No. 3 in the proceeding, styling himself as "assistant Superintending engineer"; when he was merely Personal Assistant to Superintending Engineer, according to the petitioner. The review application was allowed by the Tribunal by an order dated 3-6-2002, against which the State preferred Writ Petition bearing No. 445/2002, which was dismissed by this Court on 13-12-2002.

(3.) The petitioner filed two complaints before the learned Judicial magistrate First Class. In Criminal Complaint No. 158 of 1995, he alleged that respondent No. 2 had fabricated certain documents and had produced the same before the Maharashtra Administrative Tribunal and had thus, committed offences punishable under sections 191, 192, 193, 197, 200, 463, 464, 465, 499 and 500 of the Penal Code. Criminal Complaint No. 321 of 1996 was filed against both A. R. Tiwari and K. R. Bidkar (the respondents in Criminal Writ petition No. 151 of 2005) , on similar allegations for offences punishable under sections 191, 192, 193, 197, 200, 463, 464, 465, 499 and 500 of the Penal Code. In both these cases, after examining the complainant, process was issued for the offences punishable under sections 192, 196, 197, 199, 200, 463, 500 and 191, 192, 464, 465, 500 of the Penal Code respectively. The accused filed an application at Exh. 36 in Criminal Complaint No. 158 of 1995 and applications exhibits 16 and 17 in Criminal Complaint No. 321 of 1996 praying for dismissal of the complaints, presumably seeking protection of section 197 of the Code of criminal Procedure. The learned Magistrate rejected these applications by orders dated 18-2-2003 holding that as the cases are already fixed for recording evidence before charge and the allegations cannot be decided summarily, both the parties should get opportunity to prove their contentions. Aggrieved thereby the accused preferred revision application before the Court of Sessions, contending therein, that apart from absence of sanction, as required under section 197 of the Code for prosecuting the accused, the Court could not have taken cognizance of the offences, in view of bar of section 195 (l) (b) (i) of the Code of criminal Procedure. The learned additional Sessions Judge does not seem to have discussed the question of bar of section 195 of the Code, but held that in absence of sanction, the learned Magistrate could not have taken cognizance of the offences, committed by the accused in discharge of his duties as public servant, and therefore, allowed the revisions and ordered discharge of the accused. Aggrieved thereby, these petitions have been filed by the complainant.