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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 330 of 2006
Sarangdharsingh Shivdassing
Chavan,
aged about 51 years,
resident of Hingna Karegaon,
Tq. Khamgaon,
Distt. Buldana. .... Petitioner.
Versus
1. State of Maharashtra,
through Chief Secretary,
Mantralaya,
Mumbai-400 032.
2. State of Maharashtra,
through Secretary,
Department of Home,
Mantralaya,
Mumbai-400 032.
3. Superintendent of Police,
Buldana.
4. Collector, Buldana.
5. Gokulchand Sananda,
resident of near Khamgaon Urban
Co-perative Bank,
Khamgaon, Distt.
Buldana. .... Respondents.
*****
Mr. P.C. Madkholkar, Adv., for the petitioner.
Mr. Subodh Dharmadhikari, Senior Advocate, as Special
Public Prosecutor for respondent nos. 1 to 4.
Mr. C.S. Kaptan, Adv., for the respondent no.5.
*****
CORAM : A.H.JOSHI AND
A.B. CHAUDHARI,JJ.
Reserved on:25thFebruary,2009.
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Pronounced on: 5th March, 2009.
J U D G M E N T [Per A.H. Joshi, J]:
1. Order-sheets reveal that on 21st September,
2007, this Court had put the parties on notice that
this petition would be taken up for final hearing at
the stage of admission-hearing.
Notice of this petition was not issued to the
Respondent No.5. ig The Respondent No.5 has, however,
filed appearance voluntarily and also filed Affidavit-
in-Reply, way back in October, 2007. He has
participated in the hearing from time to time. In so
far as the affidavits of other respondents are
concerned, those are on record.
Hence Rule. Respective Advocates waive
service, and Rule is taken up for final hearing
forthwith by consent.
2. Heard learned Adv. Mr. P.C. Madkholkar for the
petitioner, learned Senior Advocate Mr. S.P.
Dharmadhikari appearing as a Special Public Prosecutor
for respondent nos. 1 to 4 and learned Adv. Mr. C.S.
Kaptan for respondent no.5.
3. Petitioner is praying for the reliefs in two
prayer clauses, however, they seem to be four reliefs
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in all, which are as follows:-
“A) [1] …by writ in the nature of
mandamus or any other appropriate
writ the telephonic message at
Annexure-E by the Secretary of
the Chief Minister be declared
illegal, null and void and it
amounts to abuse of due process
of law. ….
[2] ...the letter/order of the
Collector dated 5.6.2006 at
Annexure-C by which registration
of crime is prohibited, be
declared to be null and void and
the same be quashed and set aside
saddling cost of Rs.1 Lakh each
ig on the Collector as well as the
Government.”
“B) [1] By appropriate writ, order or
direction direct the respondents
no. 1 and 2 to reconstitute the
SIT constituted by Superintendent
of Police Shri Krushna Prakash
with the other officers, PI Ane,
PI Deorao Tiwase and PI P.K.
Daberao and direct them to
investigate the matter in
accordance with law in regard to
the complaints which are filed
against Mr. Gokulchand Sananda
vide Annexure-A and subsequent
complaints which are already gone
to the number 50. ….
[2] ….a further direction to issue
a general direction to all
concerned Ministers and Collector
and Commissioner not to interfere
in the matter and let the law
take its own course.”
[Prayers are divided and have been marked [1] and [2]
for identification as well as emphasis while quoting].
[Quoted from page no. 8 of the Writ Petition paper-
book].
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4. Facts, in brief, as narrated in the petition,
are as follows:-
[a] Petitioner seems to represent the cause of
indebted farmers in and around Khamgaon Taluka of
Buldana district, who are victims of usurious money
lending transactions by respondent no.5 and his family
members or associates.
[b] Petitioner has filed a detailed complaint
dated 23rd May,
ig 2006 which is Annexure-A to the
petition, and demanded that the entire transactions by
members of family of the respondent no.5 be
investigated.
[c] Petitioner came to know that his complaint
would not be investigated, as prohibitory directions
have been received from the Hon’ble Chief Minister
which are communicated to the Superintendent of Police,
Buldana, through :-
(i) a telephonic message from Mr. Padwal,
Personal Secretary to Hon’ble Chief
Minister, an entry in Station Diary
for this direction is taken; and;
(ii) a letter issued under the signature
of the Collector, Buldana, copy
whereof is at Annexure-C dated 6th
May, 2006 to the petition.
5. Through this letter [Annex.C], issued by
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Collector, Buldana, under orders of Hon’ble Chief
Minister, the Collector, Buldana, has directed the
Superintendent of Police not to take cognizance of any
complaint received against family members of Dilipkumar
Sananda, unless such complaint is considered by a
District-level Committee appointed for controlling the
illegal money lending and without taking opinion of the
District Govt. Pleader, since false and frivolous
complaints are being made against members of family of
Dilipkumar Sananda, the Member of Legislative Assembly.
6. It is seen from various Farad orders passed in
present petition by this Court from time to time that,
this Court had directed that the progress of
investigation of various complaints made by the farmers
against the family members and associates of the
Respondent No.5 shall be reported from time to time,
and, therefore, various affidavits have been filed.
7. The affidavit filed by Superintendent of
Police, Buldana, on 23rd April, 2007 which is pages 66
to 68 of paper-book accompanies a chart, wherein it is
shown that :-
[a] in relation to seven complaints/FIRs
registered against the members Sananda
family, charge-sheets are filed, and[b] various other complaints are disposed
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of either being matters of civil
nature or being withdrawn or settled,beyond limitation, being non-
cognizable etc.
It is then urged that the petition has become
infructuous and that no further orders are necessary.
8. During the hearing, learned Adv. for the
petitioner Mr. P.C. Madkholkar has given emphasis to
the Prayers (A) [1] and [2] to (B) [2]
ig as quoted in
foregoing Paragraph no.3.
9. It is then argued that due to orders passed by
this Court, though some investigation has been
conducted, in fact, ample protection was already given
by police to members of Sananda Family due to the
protection sought from Hon’ble Chief Minister. Due to
this protection, latitude and helping hand, these
accused were able to take protection by applying for
anticipatory bail in the matters where cognizance of
offences was taken. This has also resulted in causing
delay in taking cognizance and in permitting the
accused either to pressurize the complainants, or
otherwise influence them either to get the complaints
disposed of or illegally closed.
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10. Petitioner has urged for :-
[i] a fresh investigation of various
offences, though complaints areclosed as compromised, disposed of
being civil matters etc;
[ii] The Govt. Resolution dated 19th
October, 2005 [Annex.I to the firstaffidavit filed for and on behalf of
respondent no.4] be struck down or
read down to prevent its abuse, as in
present case.
11.
In the midst of hearing, we had called upon
the learned Special Public Prosecutor – Senior Adv. Mr.
Subodh Dharmadhikari to state as to what is the stand
of the State on the action taken by the Collector in
the form of Annexure-C, informing that no offence
should be registered in relation to family members of
respondent no.5, until the procedure prescribed therein
was followed.
12. Learned Senior Adv. Mr. Dharmadhikari informed
the Court in reply that he did not readily have the
instructions to state whether the State would like to
withdraw the said communication. He, however, expressed
that the course of action adopted in the present case
could not be a right course of action, though,
according to learned Sr. Adv. Mr. Dharmadhikari, to
avoid indiscreet use of Criminal Law and in order to
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prevent harassment of honest and innocent citizens
against false complaints, some control and restraints,
as are resorted in case at hand, to prevent hasty
cognizance may be necessary.
13. Mr. Dharmadhikari, learned Senior Advocate,
however, wanted time to secure instructions to be able
to go on record on any of these concessions, in order
that he makes a statement only after instructions. We
find that when the matter was ordered to be listed for
final disposal at admission stage, the State ought to
have taken adequate measures and care for taking due
and sufficient instructions. We, therefore, do not
propose to adjourn the hearing any further.
14. We would now deal with different grievances.
Telephonic directions
15. In so far as the telephonic message [Annex.E
to the petition] is concerned, of late, it is sought to
be disputed that any such communication was at all
made.
16. It is alleged that the statement of Mr. Padwal
has been recorded by Police Sub-Inspector, Buldana, on
14th February, 2008, in which Mr. Padwal denies to have
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made any call to Police Station and communicated the
oral direction of Hon’ble Chief Minister.
17. It is seen that since the investigation on
this point was inordinately delayed, it was but natural
that the telephone record prior to six months from the
date of demand was not available with Mahanagar
Telephone Nigam Limited.
18. We see that this fact of the matter does not
need a discussion, since the direction referred to in
said telephonic message has come on record at page 35
of paper-book as an authentic document with the
affidavit of the Respondent no.4, sworn by Tahsildar.
Said page 35 has not been marked as an Annexure to the
affidavit, however, it bears signature of said Shri
Ukanda Sakru Rathod, the Tahsildar, certifying it to be
a true copy.
19. We have no reason to disbelieve that when
Tahsildar has signed a document as a true copy, it was
meant to be a true copy.
20. Moreover, the directions of Hon’ble Chief
Minister, contained in said telephonic message are
rather proved by the communication dated 5th June,
2006, of which a typed copy is at page 19 of the
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petition [Annexure ‘C’], while its photo copy certified
to be a true copy is on record at page 36 as unmarked
Annexure to the affidavit of the Tahsildar, which is
signed as a True Copy by Shri Ukhanda Sakru Rathod, the
Tahsildar.
21. In these premises, it would be a matter of
futile exercise to waste any further energy on the
point of Annex.E. It will have to be taken that such
communication was made by or at the behest of someone
who was interested in making such communication, and
this Court holds that said telephonic communication was
made at the behest of the Respondent No.5.
Legality of Direction of Hon’ble Chief Minister
22. As we see, the attempt is made by the State to
fit Annexure-C into the authority as available through
the Govt. Resolution dated 19th October, 2005.
23. We have perused Section 13A of the Bombay
Money Lenders Act. We quote it for ready reference as
below:-
“13A.Power of authorised officer to require
production of records or documentsFor the purpose of verifying, whether
the business of money-lending is carried on
in accordance with the provisions of this
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any other officer authorised by the State
Government in this behalf may require anymoney-lender or any person in respect of
whom the Registrar, Assistant Registrar or
the officer so authorised has reason tobelieve that he is carrying on the business
of money-lending in the State to produce
any record or documents in his possession
which in his opinion is relevant for the
purpose and thereupon such money-lender or
person shall produce such record ordocuments. The Registrar, Assistant
Registrar or Officer, so authorised may
after reasonable notice at any reasonable
time enter and search without warrant any
premises where he believes such record ordocuments to be and inspect such record or
document and may ask any question necessary
for interpreting or verifying such record.”
24. The power under Section 13A of the said Act,
as referred to above, is an additional equipment and a
tool provided in the hands of the Executives to
effectively deprecate the vices sought to be remedied
by the Bombay Money Lenders Act.
25. At the most, the Govt. Resolution dated 19th
October, 2005 can be construed to be a Consultative
Committee who would guide and work to further and
advance the object of deprecating the usurious money
lending. This Committee cannot be used to dilute the
powers of police or the authorities under the Bombay
Money Lenders Act.
26. We, therefore, record our stern disapproval of
the approach of State Govt., in placing reliance on
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Govt. Resolution dated 19th October, 2005 to justify
its action taken through Annexure-C – letter dated 5th
June, 2006 – the communication of Hon’ble Chief
Minister’s directives by Collector, Buldana.
27. We wishfully hoped that the respondent no.5
would come with a plea that being harassed by police
due to false and frivolous complaints made against him
with political motive etc., and as the higher level
police officersig did not pay any attention to his
complaints, he was constrained to approach the Hon’ble
Chief Minister, and that in such higher superior
Executive power, Hon’ble Chief Minister has examined
the matter. No plea is coming forward, suggesting such
semblance. Copy of complaint submitted by respondent
no.5 to Hon’ble Chief Minister leading to communication
[Annexure ‘C’] is not placed before us.
28. Respondent no.5 is happy and content with
making certain allegations and no substantive plea of
aforesaid type or akin thereto is advanced. All that
he has said in his affidavit reads as follows:-
“…………………………………..
……….. The respondent disputes
correctness thereof. It is submitted at
the relevant time the elections to various
local authorities were to be held in the
District, hence a planned valification
campaign was undertaken by the opposition
leaders with the support of some police
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the respondent’s son by handling false and
baseless allegations against his fatherto tarnish his political prospects and
career. And raised false doubts in respect
of investigation and claimed investigationindependently without any bias.
……………”
[Quoted from page 141 of the paper-book of Writ
Petition].
29. The manner in which the petition was initially
opposed and later investigation was conducted makes it
clear that there was a meeting at the behest of the
Hon’ble Chief
respondent no.5 with the Hon’ble Chief Minister, where
Minister gave oral directions to the
Collector, Buldana, and he has then issued a letter
dated 5th June, 2006.
30. The letter dated 5th June, 2006 and telephonic
message based thereon recorded in the Station Diary,
copy whereof is at Annexure-E page 21, and at page 35
[Annexure to the affidavit of Tahsildar] are, thus, the
exhibits of gross abuse of power by the concerned.
We, therefore, hold that these two
communications [Annexures-C and E] deserve to be struck
down.
31. Considering limited prayers contained in the
petition, we find that the purpose of the petition is
substantially served, yet the issue cannot be
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considered to have reached foreclosure.
As to complaints against the Respondent No.5
32. We see from the chart annexed to the affidavit
referred to above that in the complaint filed by Mr.
Sarangdhar Chavan, i.e., the petitioner, a charge-sheet
has been filed for offences under Sections 341, 342,
363, 392, 504 read with Section 34 of Indian Penal
Code, and read with Section 32B of the Bombay Money
Lenders Act, 1946, and the criminal case is in
progress.
33. Petitioner’s grievance is that there is a
rampant money lending and it needs to be controlled in
the interest of poor farmers of Vidarbha.
34. We are of the view that whenever a grievance
against illegal lending comes to the notice of the
respondents, punctual action be taken.
35. Whenever any individual complainant against
Respondent No.5 comes forward and furnishes a grievance
that he has either not withdrawn the complaint and that
it was withdrawn due to duress etc., such grievance
should always be open for consideration, and should be
considered.
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The disposal of petition would not come in the
way of officers to investigate it.
36. We have no room of doubt in our mind that had
the petition not been filed, no investigation would
have at all been done. We, at the same time, feel that
even after filing of petition, since adequate
protection was already given to the respondent no.5 and
his family members, he had sufficient opportunity of
getting the offences
ig reported against him screened,
compounded etc. One does not know how many such
instances of illegal money lending do exist. We only
express that the superior power of the Executive is not
brought to the abuse in the manner it has been done in
the present case.
37. Coming to the point of the compensatory costs
prayed for by the petitioner, in all fairness, learned
Adv. Mr. Madkholkar, who argued that the petitioner is
representing cause as if a Public Interest Litigation.
Mr. Madkholkar, however, urges that in order to avoid
such recurrence, there must be some chastisement to
the respondents.
38. We, therefore, award token cost of Rs.25,000
[rupees twenty-five thousand only], and direct that the
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said amount be paid by the State Govt., within six
weeks from today. No extension of time should be
applied for. Cost, when deposited, be paid to Advocate
for the petitioner. The Judgment be circulated by the
Chief Secretary of the State to all Hon’ble Ministers
and their Personal Secretaries, Secretaries of
different Departments of the Government, in order that
what is deprecated does not recur.
39. With above observations, Rule is made absolute
in terms of Paras 30 and 38 above.
JUDGE JUDGE
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