V.S. Kotwal, J.
1. A sinner gets a prick to his conscience, becomes restless and even prays to the Almighty to forgive him for committing sin of falsely involving someone and then knocks the doors of the Court though after along period of two years to case the burden taking a complete summersault vis-a-vis his previous conduct and statements solemnly made on the earlier occasion. At the other terminus the Court equally in a receptive mood to assist a retentive person, not only readily allowed the said move and accepted the same but admitted it treating as if it is evidence, which is really in the shape of an affidavit and ultimately relied on it so much that it has been made the foundation of throwing the prosecution case over board at the threshold. In that process the learned Magistrate has to undergo a very unusual exercise wherein there is an apparent endeavour almost to re-write the Code of Criminal Procedure, adopting such a stance which makes the existing procedure topsy turvy and allowing such a move on the part of a person, who is just a witness, almost making its entry by the back-door with the impact of unceremoniously condemning the prosecution evidence and throwing out all the prospective witnesses through the front door. The amalgam is that all these features are rolled up in a bundle, which makes the impugned order wholly vulnerable as also un-sustainable casting a disturbing shadow over the settled norms of a criminal trial. The net result is that the witness gets the burden on his conscience eased out with the satisfaction that he could now be forgiven even by the Almighty, that the accused earned the order of discharge in a problematic but obviously an unsustainable manner while the prosecution are left in bewildered state, whereas the impugned order sheds out every tinge of credibility of a lawful, order which is expected from judicial forum. These four landmarks project a very disturbing and unsatisfactory picture in this proceeding lingering behind an unpleasant taste. There is enough provocative material in the impugned order, which need not be probed in details, since sobriety is claimed to be the virtue of a judgment.
2. The scene is mostly enacted in the offices of the Dock's officials. It all commenced in the month of June 1982. The Bombay Port Trust invited tenders for the issue of license for removal of Oil Sludge from the basin at Haji Bunder Fish Wharf, Sewree, Bombay. The last date for acceptance was June 21, 1982 by 12 noon. About 19 tenders were received up to the scheduled date and time and which were opened on that day at about 2-30 p.m. after observing formalities, in the presence of the concerned officials as also the representatives of the tenderers. As statement in form 'B' was filed in except non-mentioning the amounts of the tenders given by each tenderer. As per the procedure, the concerned official Shri Kulkarni, who was then working as Assistant Docks Manager, announced the name of each tenderer as well as the amount offered by him and which used to be noted down in the said statement 'B'. Following this pattern that formality was completed. It was noticed that one Khas Mohammad had offered an amount of Rs. 3,60,000/- which is reflected at Sl. No. 4 in the said statement, while at Sr. No. 8 one Roshanali Ismail Khan who offered an amount of Rs. 1,01,000/-. One Shri Mohammed Jafar at Sr. No. 19 had offered an amount of Rs. 35,581/- which was per month while the other two amounts were per annum, though in terms of yearly span his offer would tune to Rs. 4,26,044/-. Similarly the tenderer at Sr. No. 15 M/s. Timber Trading Company had offered an amount of Rs. 25,587/- which was also monthly, which may tune to Rs. 3,07,044/- per annum. Thus examined on the basis of annual span, the offer of Khas Mohammed at Sr. No. 4 was obviously higher and if all are considered together than that of Mohammed Zaffar would exceed. It also appears that the offer tendered by the said two persons, which were on monthly basis had appended certain conditions and which is clarified in the report of Shri Kulkarni dated June 23, 1982. To elaborate, he had catalogued three tenderers at Sr. Nos. 19, 4 and 15 respectively in order of amount offered by them. Though Shri Mohammad Zaffar appeared to be the first highest offeror, still it was only on the monthly basis and it is accompanied by conditions that he will lodge only one month's license fees as security deposit and license fee will be payable one in every month. It was, therefore, felt that he would be paying only a meagre amount monthly and it was further apprehended that if he did not get sufficient outcome then he may wash his hands. This was also in contrast to the conditions and stipulations as the tenderer was to pay full amount of the license feed of the year, and he was also under an obligation to lodge with the Dock Manager an amount equivalent to 6 months license fees as security deposit carrying no interest. These conditions were obviously not acceptable to the said tenderer and therefore, his tender was not recommended. More or less same deficiencies were annexed to the third tenderer viz. M/s. Timber Trading Company. It was a monthly offer and it was very much conditional when they stated that they would deposit only two months license fees and the license fees will be paid every month. This was again not in consonance with the stipulations and conditions and it was also revealed that the said Company was essentially dealing in timber. This, therefore, justifiably resulted in not accepting the tender of these two persons. Then left in the field the tender of Khas Mohammad at Sr. No. 4 Rs. 3,60,000/- per annum which did not carry any condition whatsoever and was agreeable to comply with all the stipulations. Consequently it was decided to accept that tender as being the highest one and there was no other impediment in accepting the same, through Roshanali Ismail Khan, who figured at Sr. No. 8 offered disproportionately lesser amount of Rs. 1,01,000/- and thus was obviously liable to be rejected and wiped out from the field, still in view of further developments be very much remained active making his tender also quite alive though for that purpose crude mode had to be adopted by changing the amount in the said tender from Rs. 1,01,000/- to Rs. 4,01,000/- with an obvious object that it should be more than Rs. 3,60,000/- to earn highest place in the list. The entire controversy generated revolving around this item.
3. The first respondent herein was at the material time working as Docks Manager while the second respondent in the companion matter claimed to be the representative and vitally interested person in the said tenderer Shri Roshanali Ismail Khan and thus he and Roshanali stand on the same footing vis-a-vis interested in getting roshanali's tender sanctioned. In the hierarchy of the structure of the Port Trust one Shri Uppal was working as Chairman while Shri Srinivasan was the Vice-Chairman, who acted a Chairman for a short duration during the absence of Shri Uppal. Shri Kulkarni was Assistant Docks Manager while one Shri Deshmukh was Assistant Manager, Bunder (North District). One Shri Todur was also colleague of Shri Deshmukh. One Shri Sathe was working as Additional Docks Manager at the relevant time. In addition one Shri Rub was working as Deputy Docks Managers, though he had officiated as Docks Manager for some time between 22nd July, 1982 and 24th August, 1982 as the first respondent was on leave at that time. One Shri Gomes was working a Typist with the Docks Manager while one Shri Nagraj was working as Personal Assistant to the Dock Manager. Some of the peons attached to the said office as also clerks figure in the arena.
4. In so far as the factual aspect is concerned the material witnesses who figure in that category and who ex facie at least tend to corroborate each other on all material particulars are Shri Kulkarni, who is perhaps the most vital witness and who is supported by his colleague Shri Deshmukh, who had witnessed personally some of the material happenings. He also has initialed the writing on the envelop immediately after the incident. The other witnesses are Smt. Sudha Patil a Clerk referring to the manipulation of the document subsequent to those being given custody of accused No. 1 P.W. Nagraj who was acting as Personal Assistant and who refers to the handwriting of accused No. 1 on the draft. Peon Solanki also figures in that behalf referring to handing over of envelopes being sent with accused No. 2 to Shri Kulkarni. The other official are P.W. Rub, Gadgil and Todur while P.W. Shri Shrinivasan, Deputy Chairman, who was officiating as Chairman for some time affords further corroboration and who carried his own enquiry being suspicious about the astronomical jump in the license fees offered by the accused No. 3 with the reasonable probability of there being any 'catch' in that, which made certain revelation about the credential of accused No. 3 and anxiety on his part to be on the scene to furnish an opportunity for other acts. There is also a statement and opinion of Hand-Writing Expert involving accused No. 2 as the author of forgery.
5. The outcome of the statement of all these witnesses as also documents as collected by the police during investigation can harmonioulsy lead to prescribing a catalogue of events, which have been squeezed in between 21st June, 1982 and lodging of the complaint on August 25, 1982, which started the ball in motion commencing the investigation against three accused persons. It may be observed that according to the complainant the complaint though in the name of Khas Mohammed was lodged by him i.e. Mohammed Hassan as according to him he was working with Khas Mohammad for number of years and he was holding Power of Attorney to look after all these aspects. He has filled in tender as Khas Mohammed was to go abroad while Khas Mohammad stated that the tender was filled in as per his instructions and though he may not have put his formal signature it was done with his consent. He has thus supported the complainant. The investigation thus commenced though apparently parallel to that Shri Srinivasan also had his discreet enquires, which made certain revelation as indicated. Instead of referring to all the statement in detail, the chronological order can be placed in the structure of catalogue giving necessary thrust of the allegations in the context of several events :---
(1) The tenders were examined by the officials concerned in the presence of the representative of the tenderers on 21st June at 2-30 p.m.
(2) The tender of Khas Mohammed was highest and was conforming with the rules and regulations and was unconditional.
(3) In contrast, the tender of Mohammed Zaffar, though apparently highest could not be recommended as it was conditional and not adhering to the prescribed rules. Similar was the case with that of the tender of M/s. Timer Trading Company.
(4) Roshanali Ismail Khan had filed in tender for Rs. 1,01,000/-.
(5) These figures were announced in open and those were noted in statement Exh. 'B' in the presence of everyone and that statement is signed by the concerned officials.
(6) On the same evening these papers were placed before accused No. 1, who was working as Docks Manager and who asked Shri Kulkarni to prepare a tabular statement and which was prepared as statement 'C' in consonance with the tender form and statement 'B' giving out these very figures viz. Rs. 1,01,000/- regarding Roshanali and Rs. 3,60,000/- regarding Khas Mohammed.
(7) All these documents including the reports as also statement 'B' and 'C' were given to accused No. 1 and remained in his possession all throughout till further developments occurred.
(8) On 24th June accused No 2 handed over two sealed covers to Shri Kulkarni. These covers were of Bombay Port Trust Envelopes but did not bear the particulars of addresses.
(9) Accused No. 2 informed Shri Kulkarni that these were given to him by accused No. 1 for being handing over the Shri Kulkarni with instruction to complete the formalities and sending back the file.
(10) The two envelopes were opened by Shri Kulkarni. Small one contained a draft with corrections in the hand of accused No. 1, wherein accused No. 1 wanted Shri Kulkarni to prepare a letter or report made under his signature and address to the Docks Manager recommending Roshanali's tender, which is to the tune of Rs. 4,01,000/-. This was obviously false according to Shri Kulkarni. The correction indicate that it was first addressed by the secretary to the Docks Manager and then scored to Assistant Docks Manager. Thus it was indicate by accused No. 1 to Kulkarni to make a report on those lines and thereby accepting Roshnali 's tender for Rs. 4,01,000/- and not Rs. 1,01,000/-
(11) The large envelope contains various documents and copies of statement 'B' and 'C' in which there was corresponding change in words and figures from Rs. 1,01,000/- to Rs. 4,01,000/- though in the second copy of statement 'C' figures remained unchanged. Similarly manipulation was made in this original tender from of Roshanali.
(12) The other manipulation is extremely apparent incapable of entertaining any contest.
(13) Shri Nagraj also say that those letter were placed on his table brought by peon Solanki and he had seen those changes and figures and the corrections in the drafts were in the hands of accused No. 1.
(14) These letters had no access with any one except accused No. 1 as the peon had not touched the paper and those were sealed under the supervision of Nagraj.
(15) Kulkarni asked accused No. 2 about interest when the letter said that he has partnership interest with Roshnali and he has also told him accused No. 1 wanted to favour the party.
(16) Accused No. 2 also assured Shri Kulkarni inspite of these manipulation that everything was alright and there was nothing wrong.
(17) Kulkarni immediately reacted, called Shri Deshmukh and showed him all the documents. Deshmukh 's re-action was sharp who snubbed accused No. 2 and asked him to go away.
(18) Soon thereafter Deshmukh and Kulkarni went to the office of accused No. 1 though Deshmukh waited outside.
(19) At that time accused No. 2 was sitting in the chamber of accused No. 1.
(20) Shri Kulkarni told accused No. 1 clearly told him suggesting that he should change Roshanali 's figure in statement 'B' to Rs. 4,01,000/- and for that he offered a ball pen to make the said changes.
(21) Accused No. 2 supported accused No. 1 in that move.
(22) Shri Kulkarni protested suggestion that everything was done in the presence of other official and such manipulation cannot be encouraged when accused No. 1 suggestion that there was no need top call Shri Gadgil from the Audit Department.
(23) At this point, accused No. 1 on his own stated that Shri Gadgil did not have the copy of statement 'B'.
(24) Disgusted Kulkarni want away, informed everything to Deshmukh.
(25) In view of this experience to protect his position Kulkarni got copy of the said draft typed from Gomes-typist to retain the proof.
(26) Soon thereafter in the cabin of accused No. 1 Shri Kulkarni protested to accused No. 1 that this would amount to criminal offence when accused No. 2 refuted that there was nothing criminal about it. Still the suggestion of Kulkarni was not accepted by accused No. 1.
(27) At that point of time in the presence of Kulkarni and Deshmukh peon brought the draft and copies when accused No. 1 retained the original draft, tore it into pieces and threw the away the same in the waste paper basket and handed over the other paper to Kulkarni asking him to see him on the next day.
(28) Re-action of the two officials was so critical that in the same mood, going back to their office, Kulkarni wrote down the crux of the matter envelopes that were brought by accused No. 2 and those were signed by both of them which land corroboration and is a piece of immediate conduct, the necessary detail are reflected therein.
(29) Kulkarni prepared one report and the same also corroborates him substantially.
(30) On 25th June in view of repeated telephonic calls from accused No. 1, Shri Kulkarni attended the office of accused No. 1 where accused No. 2 was also present thought he was asked to go out.
(31) Accused No. 1 did not peruse the report of Shri Kulkarni but gave instructions on few points to prepare report which was prepared by Kulkarni exclusively at the instance of accused No. 1 wherein alternatively it was suggested that either fresh tenders be called for or public auction be made on which accused No. 1 endorsed accepting the recommendation of public auction.
(32) Significantly, this auction was taken by accused No. 1 without any reference to the Chairman on his own and it was actually invited at his dictate, normally otherwise it would have been the Chairman who would have taken this decision.
(33) As a result the tenders were cancelled and public auction was held in which the same Roshanali was highest bidder to the tune of Rs. Six lakh when his initial tenders was for Rs. 1,01,000/- only.
(34) Shri Srinivasan, Deputy Chairman was perplexed with the situation and about the astronomical rise in the tender amount realising that the output was not in proportion and enquiries revealed a career of nefarious activities of accused No. 3 in pilfering oil, both mercantile and edible, from the Oil Tankers. A veiled suggestion is that any how and at any cost accused No. 3 wanted an access which could serve as on ostensible camouflage for the other activities and for which purpose every one interested in him was moving in that direction.
(35) Within two days, on 28th June accused No. 1 went abroad on leave.
(36) On his return on 25th August he expressed an anxiety about the developments and tried to project himself as an innocent person and to extract statement of the person on those lines.
(37) The documents thus unequivocally make out a case of forgery since manipulation is apparent even to the naked eyes. All the witnesses categorically say that this was subsequent to the document having been given to accused No. 1, who was in exclusive possession thereof.
(38) It is suggested by the prosecution that accused No. 1 himself could not made the said change since it was necessary for tenderer himself to make the change in his own hand that is the only reason white was accused No. 2 's hand that made the manipulations, though it is suggest to be product of the said conspiracy.
(39) Persistent and liberal visits of accused No. 2 in the chamber of accused No. 1 even during his absence ex facie indicate intimacy within sincere implication which is further reinforced when those document were handed over to him for being given to Kulkarni without being sent by despatch.
(40) Hand-writing Experts ' opinion establish manipulation by accused No. 2.
(41) Accused No. 1's involvements in actively assisting in making manipulation through accused No. 2 and thereafter his insistence on Kulkarni on other to make recommendation as per the draft and to make the necessary changes; having realised likelihood of being frustrated he decided to cancel the tenders and hold public auction in his authority without reference to the Chairman and coincidentally that was given to the same person Roshanali for disproportionately higher amount.
(42) Accused No. 3 is the person, who was obviously to benefit in the transaction and could not have been an unconcerned spectator.
6. After completion of investigation all the three accused persons were arrested and were ultimately charge-sheeted in the Court of the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay, which is the subject matter of Criminal Case No. 1753/p of 1982 for offences under sections 120-B, 417, 511, 462, 468 and 471 read with section 34 of the Indian Penal Code.
7. Copies of all the relevant documents under section 173 of the Code of Criminal Procedure were furnished to the defence and the matter was argued at the threshold on the question of the framing of the charge. The learned Counsel for accused No. 2 Shri Agarwal conceded framing of the charge against him those it was contested on behalf of accused Nos. 1 and 3. As regards accused No. 1 it was mainly contended that there is no evidence that he was involved in the alleged fraud and which might have been committed by accused No. 2 on his own. It was suggested that the other officials have animosity against him and they have manipulation the entire evidence. A question was raised legal premise that the first accused is a public servant within the meaning section 21 of the Penal Code and the alleged would fall in the clutches of section 197 of Code of criminal Procedure as it was done or atleast purported to have been done in the discharge of official duties any consequently the prosecution in the absence of any sanction was not maintainable. It was lastly contented that even accepted, at the maximum, would be lifted only to the pedestal of preparation and not an attempt and, therefore, offence is made out. Accused No. 3 contended that he was not in the picture at any time and, therefore, it is a case of no evidence against him.
8. After the arguments, the matter was posted for order on 14th March, 1984. Then an unexpected development occurred. On the eve therefore and to be precise on 12th March, 1984 the complainant Mohammed Hassan presented affidavit before the learned Magistrate through it was not the scheduled date for the said case for any purpose and these come to be accepted by the learned Magistrate through no notice issued to the prosecution and it is alleged that the prosecution were not even aware of any such move as a grievance is made that these was tendered before the learned Magistrate in his chambers. Whatever may it be, the fact remains that no notice was issued to the prosecution even before accepting such a document, which does appear to be accepted with out knowledge of the prosecution. Thereafter when the matter came up on 14th every one was made ever of the said affidavit and the matter was posted for the further arguments in the context of that affidavit.
9. This affidavit makes a complete summersault to the complaint and previous incidents and in effect the deponent has denied all those allegations, which were leveled earlier and he had a story to call Shri Srinivasan, Shri Kulkarni and Shri Deshmukh as villain of the episode as according to him he is not Khas Mohammed and he had represented before all authorities including the police as Khas Mohammed , which was not on the instructions of Khas Mohammed ,but on instruction of his employer. Sum and substance of the contents is to the effect that Khas Mohammed was not in Bombay when the tender was filled in. On the next day of the tender he met Shri Kulkarni and Shri Deshmukh, who suggested that they has as yet not made up their mind about the recommendation. He also along with his employer met Shri Kulkarni at his house when it was told that their tender would be recommended provided of M/s. Kulkarni and Deshmukh should be safe- guarded and thus there was a suggestion of illegal gratification. There had been repeated visits with his employer to the house of Kulkarni where the said demand was repeated. Shri Kulkarni had also gone to see the Docks Manager : The complainant could not meet accused No. 1 for quite sometime through he met Shri Sathe, additional Docks Manager on 26th June. On 28th June he along with an advocate and others met Shri Sathe once again, who told him that public auction was directed. On 1st July he complained to the Chairman for wrongful rejection of the tender. He again contacted Shri Kulkarni at his house when the alleged discrepancy in the tender of Roshanali was brought to his notice. Shri Deshmukh was contacted at the behest of Shri Kulkarni. Shri kulkarni thereafter gave a draft to his employer, which he got type and he got copies of certain document and address a letter to the Deputy Chairman and not to the Chairman in consonance with that draft at the suggestion of Shri Kulkarni. He had seen Shri Shrinivas an at the instant of Shri kulkarni of this last week of July and at that time Shri Srinivasan suggested to file a complaint against the Docks Manager so that their firm may be allowed to have a temporary license on monthly basis. He along with Shri Srinivasan then went to the police station when Shri Srinivasan had expressed upon him that accused No. 1 would be soon placed under supervision. It is suggested in no unmistakable terms that recitals in the complaint were prompted only by M/s Srinivasan, Kulkarni and Deshmukh which according to him are false. He also suggested that these people impressed upon him to write in the complaint that he had seen Roshanali and Agarwal in the office of accused No. 1 on June 24 and accused No. 1 had personally informed him that he was inclined to recommend the case of Roshanali. Then he narrates as to what happened in police station and the situation is that every thing was engendered by these officials being in league with the police and to take vengeance against the first accrued. According to him he faced confrontation by the Police Officers that he may be prosecuted because he had lodged the complain misrepresenting as Khas Mohammed.
10. In the final paragraph after disowning all the allegations in the complaint he has made some very eloquent statements, which are pregnant with obvious implications such as :---
'.........I was all the time feeling nervous as Mr. Murtallib has mentioned to me that I had committed a grave offence. Added to this, recently I came across newspaper report about the serious turn in the case initiated on the strength of my statement. As a result, I started feeling all the more guilty and nervous. I therefore, felt that it is bounded jury to bring to the notice of the Hon'ble Court the true facts to clear my conscience. Accordingly I consulted my relations and friends and sought their advice as to what i should do in the matter. They initially condemned me but have unanimously advice me to go ahead with my plan to make a through disclosure of the said fact. According out of since responsibilities and to place correct fact before this Court, i am making this affidavit setting the said fact...'
Thereafter he once again reiterated as :---
'I solemnly state that I had never met Mr. Rengnekar or seen Mr. Roshanali in his office and all the statement made in the complaint are false and baseless and which are made at the instance officials.'
In the ultimate giving the same as moral shade he stated as :---
'I sincerely regret that I am responsible for initiating the aforesaid prosecuting and I pray to Almighty to forgive me for committing the said act......'
11. This affidavit is sworn on 12th March, 1984 attested by an Advocate. It is made on the stamp paper, which purports to have been purchased on the same day and it has been tendered in the Court on the same day, and which has served as a pivot in a substantial form to earn discharge for accused Nos. 1 and 3.
12. The learned Magistrate upheld the validity of all the contentions raised on behalf of the accused Nos. 1 and 3 and in term he held that in view of the affidavit of the complainant entire evidence sought to be tendered by the prosecution is unbelievable and he discarded the same condemning all the witnesses even before they had an opportunity to enter the witness-box and even before the said affidavit was formally proved and tested by the cross-examination. In effect the balance containing the single document like affidavit heavily titled against the other wing of the balance which contained several documents and oral statements and striking of balance in such a manner on the face of it is very odd. This was a finding on fact. In the second category the learned Magistrate held that the first accused in a public servant within the meaning of section 21(12) Indian Penal Code. In the next plank of this category it was held that all the acts by accused No. 1 were in the purported discharge of his duty and, therefore, sanction under section 197 of the Code of Criminal Procedure was essential in the absence of which the prosecution was not maintainable. In the third category it was held that all these acts, at the maximum merely amount to preparation and do not travel beyond the same and on that code also no case is made out. As regards accused No. 3 it was held that there was no evidence worth the name against him. In keeping with these findings the learned Magistrate was pleased to discharge original accused No. 1 and 3 while charge was framed only against accused No. 2. It is this order dated 18th April, 1984 that it is being placed under challenge on behalf of the State in Criminal Revision Application No. 298 of 1984 where original accused Nos. 1 and 3 were joined as despondence as it was felt proper not to join original accused No. 2 since he conceded the framing of charge. Along with it, Khas Mohammed Preferred his own Criminal Revision Application No. 243 of 1984 were in original accused No. 2 is also impleaded as respondent No. 2 along with accused Nos. 1 and 3. It may be interesting to note that Khas Mohammed 'is the person, who is vitally interested in his own tender and who fully falsifies the summersault that is been taken by the original complainant who even tends to condemn him.
13. Shri. M.R. Kotwal, the learned Public Prosecutor for the State, while canvassing the multifold contentions assailed the impugned other mainly on the ground that it was not within the jurisdiction of the learned Magistrate to discharge the prosecution case and distrust the statement of the witnesses and the threshold without they being 'examined and that too on the assumption that the affidavit in question contains a truthful version, and when the said affidavit was yet to be tested in the evidence. According to him, there is overwhelming evidence atleast in the prima facie field making sufficient ground to proceed against the accused. He further submits that there is no provision under the Code to adopt such a process of excepting such a affidavit and relying on the same to discard overwhelming evidence. As regards the second category about the sanction, the learned Public Prosecutor submit that in so far as the offences in question are concerned, the first accused cannot be deemed to be the Public servant as it is made clear from the provision of section 112 of the Major Port Trust Act and which would override the general provisions contained in section 21(12) of the Penal Code. However, even assuming otherwise, according to the learned Public Prosecutor in any event there cannot be application of provision contained in section 197 of the Code of Criminal Procedure inasmuch as acts complained of or series of acts cannot be said to have been committed either in the discharge or event in the purported discharge of the duty of accused No. 1. If that be so, than the prosecution for its maintainability does not require a section. In the last category it is submitted that it is cleared a case of attempt and not merely preparation as is apparent from the nature of the acts, while some of the acts are complete by themselves and do not form even mere attempt. Shri. Dudhut, the learned Counsel for the petitioner in the companion revision application, viz., Khas Mohammed, who is vitally interested has supported the prosecution and the learned Public Prosecutor in all the submission. Both of them have further indicate that it is manifest that the said affidavit which is filed two years after the incident and equally at a belated stage after filing of the charge-sheet that it must have been sponsored and engineered by accused No. 1, who had become panicky even before the filing of the charge-sheet to pressurise the witnesses to exonerate him and according to them the recital there in make this position very clear it is further submitted that assuming otherwise, everything as discussed but the learned Magistrate the stage to assess the said affidavit and in its context to assess the evidence of the prosecution is yet to be reached. A grievance is made that there had never been any concession by the prosecutor in so far as the charge under section 120-B of the Penal Code is concerned. It is further submitted that involvement of accused No. 3 is apparent inasmuch as he is the person who was to benefit and accused No. 2 was acting at his behest. Shri Kumar Mehta, the learned Counsel appearing for the original accused No. 3 conceded that he has no objection if the charge is framed against accused No. 3, though he disputes the validity of the contention raised on behalf of the prosecution and maintains that his client is innocent and there is no sufficient evidence against him, especially when he had no figured any where in the picture. However, he submits that in view of his concession, which is without prejudice to right and contention available for being canvassed in the trial Court, he had not submitted anything on merits.
14. Shri V.H. Gumaste, the learned Counsel appearing on behalf of the first accused is, however, more vigorous in his contention. He had disputed the correctness of all the contentions on behalf of the prosecution though he has practically conceded that on the vital aspect the impugned order is wholly unsustainable as according to his concession the learned Magistrate has no jurisdiction to weigh the evidence at this stage and to accept the document of affidavit in presence to the police statements. On the factual aspect, therefore, atleast in the limited field about the process adopted by the learned Magistrate he has conceded against the validity of the impugned order. However, on facts he maintains that the alleged acts do not amount to an attempt but those do not travel beyond mere preparation and therefore according to him even if the process adopted by the learned trial Magistrate in discarding the prosecution case mainly on the basis of affidavit is rejected, still on merits of the facts since it is merely a preparation, no offence can be made out and which basis also the order of discharge may be justified, thought of different grounds. As regards the third question of the first petitioner being public servant he adopts the reasons assigned by the learned trail Magistrate. As regards the case under section 197 of the Code of Criminal Procedure also he adopts more or less the same reasons assigned by the learned trail Magistrate and mandates that the alleged act is in the purported discharge, though may have been dishonestly done, of his official duty and as such sanction is necessary.
15. However, Shri Gumaste, the learned Counsel, submitted at the threshold and also reiterated his contentions during the course of arguments that in case the question of sanction is left open as according to him it cannot be decided at the threshold as it would depend upon the facts as would be developed during the trail, then he would have no objection if the matter is sent back to the trail Court for framing of the charge on facts though the learned Magistrate shall be free to decide the question of sanction at subsequent stage. For that purpose he time and again insisted that even for the deciding any question vis-a-vis the sanction the merits on the factual aspect need not be gone into and need not be even touched. These anxiety could well be understood as had to walk on a right rope in a very delicate field being fully conscious about the utter vulnerability of the progress adopted by the trail Court and existence of an adequate material ex facie. However, in the nature of thing it i.e. difficult to accept the same as the contention also on the legal premise cannot be assessed in vacuum. Therefore, whatever material is necessary for their assessment that will have to be examined in proper vein.
16. The first item obviously falls on the factual aspect. The second consists of legal premise, which can be sub-divided into two parts, one has to whether the first accused is a public servant and if the answer is in the affirmative, then secondly whether is alleged act or series of acts were performed by him in the purported discharge of official duty, within the meaning of section 197 of the Code of Criminal Procedure. The third category again refers to the facts, as to whether the acts amount merely to preparation or go beyond that and amount to attempt while some acts amount to the commission of offence.
17. In so far has the first category is concerned, I have indicated necessary details the evidence that is sought to be unfolded at the trial which is reflected to the police papers including the statement of various witnesses Shri Kulkarni has given a vivid picture all these even that commenced from 21st June, 1982. P.W. Deshmukh another witnesses examined by the police fully corroborate the prosecution case, various events and the story unfolded by P.W. Kulkarni in all material particulars. P.W. Deshmukh refers in details to the happenings in the chamber of accused No. 1, insistence of accused No. 1 to manipulate the documents, unusual interest shown by accused No. 2 at every stage. He had also initialed the writing on the envelope showing is immediate conduct. The other evidence including that of Smt. Sudha Patil makes the position clear about the manipulation in the documents being subsequent to those being in custody of accused No. 1 P.W. Nagraj, the Personal Assistant to accused No. 1 lends further corroboration to the material particulars. Thus, he says that all the relevant documents were in custody of accused No. 1, that he had seen the draft and other documents kept in two envelopes without the peon Solanki getting any opportunity to temper with and those contained correction in crucial points in the hand accused No. 1 and he also refers to the frequent meetings of accused No. 2 with accused No. 1. The peon Solanki also supports the version about envelopes being sent with accused No. 2. Statement of P.W. Rub, Gadgil, Todur, etc. lend further support. P.W. Srinivasan, Deputy Chairman, and who officiated as Chairman for some time further corroborates the prosecution case in relevant aspects. Apparently he entertained a surprise as to how there has been 'astronomical jump' in the license fee offered disproportionate to the output which made him guess about any 'catch'--to borrow his words-especially when the amount was raised even to Rs. 6,00,000/- and discreet enquires revealed that as per police report, accused No. 3 Roshanali has made pilfering of oil-both mercantile and edible from the oil tankers, as a profession. The witness, therefore, was convinced that the underneath object was to use the license ostensibly as a camouflage for the other nefarious activities and that explained the hectic and desperate moves in that behalf. The hand-writing Expert's opinion involves accused No. 2 as the author of forgery. The writing on the envelopes and the report of Shri Kulkarni are also relied upon. Statements of Khas Mohammed Hassan are in consonance with the prosecution case. This in short is the general pattern of prosecution evidence that would be unfolded at the trial.
18. In the face of all these features it is impossible even to conceive much less to accept that there have been no sufficient grounds to proceed against the accused persons. The learned trial Magistrate has adopted an unknown procedure by trying to find out some conflict in the affidavit and all this evidence. According to him, the said affidavit even at threshold without commencing of the trial and without the complaint i.e. the author entering the witness box is admissible. This aspect is extremely vulnerable. According to him, the complainant is a party and has every right to tell the Court that whatever is stated earlier is not correct little realising as to which point of time such right can be exercised. Then it is stated that by unfolding truth the witness would be really aiding the cause of justice, in that context he has overlooked the objection of the prosecution that at that stage the document was not tested. The vulnerability of all these is so apparent that it requires no further comments.
19. As regards the process of assessing the evidence in the context of affidavit, he has found out some discrepancies. According to him it is not made clear by Nagraj as to when the papers were placed before accused No. 1, which were sent by Kulkarni. This is a very lame excuse as the evidence is very clear otherwise. Then a fault is found with the prosecution that original draft is not before the Court nor even copy is placed little realising that original draft was tore into pieces by original accused No. 1 while copy of the draft is obviously produced by Shri Kulkarni. Non production of short-hand book of Shri Sathe has again been made a point of issue to arrive at a conclusion that it is not known whether accused No. 1 has really dictated the draft regarding the said figure. A point is made that in the report of Shri Kulkarni there is no reference that the draft was in the hand -writing of No. 1. The entire evidence in that behalf is fully missed especially that of Shri Kulkarni, Shri Deshmukh and Shri Nagraj. A fault with Shri Kulkarni that in the second report he has not referred to the draft little realising that it could have been redundant. Shri Kulkarni is also criticised since in the second report it is not clarified as to who had actually tampered with the documents. The learned Magistrate then observed that these features make little doubtful as whether accused No. 1 was insisting that Roshanali's tender should be accepted. However, the learned Magistrate him self takes around about turn relying on the evidence of the Hand-Writing Expert that alteration was done by accused No. 2, so there is little doubt that it has been accused to has altered those figures. He then posed a question whether was done by accused No. 2 on his own without reference to accused No. 1 and 3 According to him, accused No .3 was near was seen by any one near about the office. Reliance is placed on the advice where Mohammed Hasan has completely denied that he had ever seen or met accused No. 2 in the office of accused No. 1. He has only relied on the variation that has earlier statement that accused No. 1 told him that he was inclined to give tender to Roshanali is not true. The learned Magistrate in a very spacious and almost a charitable manner contaminated the officers S/ Shri Kulkarni Deshmukh and Srinivasan holding that the earlier statements which were made at their instance do not deserve credence whereas the statement in the affidavit unfolds the truth. Then point is made about various timing on 24th June as according to the learned Magistrate having regard to the evidence of Nagraj, accused No. 2 could not have been with accused No. 1 by about 6 pm. as he left by 5-30 p.m. and, therefore, version that these two witnesses saw accused No. 2 even in the meeting is a false one. This pertain to the incident that occurred inside the cabin of accused No. 1 when he suggested to manipulate the document and accused No. 2 supported him. The learned Magistrate is no doubt conscious about the thrust to this theory when he observed as :---
'Now this story if accepted, would clearly show the involvement of accused No. 1 is forgery and attempt of cheating.'
This have been discarded only on the ground that if accused No. 2 had left at 5-30 p.m. He could not have been present at 6 am. little realising that the version given by the witness is clear that they met accused No. 1 in the cabin at 5-30 p.m. and the assessment given by Nagraj a differences of a few minute would be innocuous. The learned Magistrate observed that there is no evidence to suggest that accused No. 1 asked accused No. 2 to temper with the documents and as such there is no evidence to involve accused No. 1 in the offence. It was then stated that the prosecution did not press charge under section 120-B of the Penal Code, which is stoutly denied by the prosecution and maintained that they did press the said charge. The learned Magistrate has even gone to the extent of observing that there was some connection between S/Shri Kulkarni, Deshmukh and owners of M/s. Haji Soap Works and M/s. Kulkarni and Deshmukh have promised to help them. This was only on the assumption that the version in the affidavit is true. Then the conduct of the complainant in representing himself as Khas Mohammed and signing various documents in that behalf is criticised and one of the reason assigned by the complainant for making affidavit has been very readily accepted. A surprise is expressed that though Khas Mohammed was not present he had no objection in filling the tender. A critical is also leveled that according to the affidavit, two documents of power executed by the said Khas Mohammed were not in existence at that time but they were created in the mouth of November to suit the purpose little realising that the complainant 's supplementary statement itself makes it clear atleast prima facie that these documents are genuine ones and were in existence at the relevant time, which gives a series lot which however, was not ever felt by the learned Magistrate in any manner. The facts that the said Khas Mohammed 's tender initially was for Rs. 2,60,000/- was changed to Rs. 3,60,000/- has been also utilised though that is not such a document in the name of Khas Mohammed itself amounts to forgery and fraud and, therefore, to quote the words of the Court 'Khas Mohammed had no legal right to get the license to remove oil sludge'.
20. On the plain reading of the material including the complaint and statement of Khas Mohammed this line of reasoning obviously go astray. The learned Magistrate has impliedly accepted the contention in affidavit that everything was engineered by S/Shri Kulkarni, Deshmukh and Chota Haji and was inclined to accept that theory. It was then observed as :---
'So if the contents of the affidavit are true, then they affect very much to the credibility of Kulkarni and Deshmukh. So between their versions and the version of Nagraj, their versions is liable to be rejected. So the circumstance that accused No. 1 was asking Kulkarni and Deshmukh to alter the figures and to recommend Roshanali's tender form becomes very doubted.'
21. The learned Magistrate then considered the possibility of accused No. 2 tampering with the document without reference to accused No. 1. According to him, assuming that accused No. 2 used to visit office of accused No. 1 even during his absence, he might have an access to the document to temper with the same and, therefore, it is observed as :---
'......Accused No. 2 was waiting in the chamber of accused No. 1 as the latter was busy. If that be so it could have offered him an opportunity to tamper form even without the Knowledge of accused No. 1. Now can it be said that in these circumstance it could be inferred that accused No. 1 was a party to the forgery or cheating.'
22. The learned Magistrate was himself fully conscious of this slippery mode of reasoning and that is why he has used term 'So in my opinion there is not enough evidence to involve accused No. 1'. The learned Magistrate almost has gone on imagining in observing that accused No. 1, who is an experienced person would not have committed an offence in such a 'crude manner' even if he wanted to favour accused No. 1 and the story rather seems to be improbable. The learned Magistrate inspite of this bent of mind could not go out of clutches of strong circumstances and observed as :---
'It is true that he had gone out of the way in standing these tender forms to Kulkarni with accused No. 2 Agrawal and not by the official channel on 24-6-1982. But that alone would not be enough'
It is unnecessary to multiple the illustrations each of which is formidable one, and which collectively make the quite unsustainable.
23. The scheme of the Code of Criminal Procedure is quite clear as contained in chapter relating to 'Criminal Trials'. The statements of the witnesses are recorded under section 161 of the Code. Section 173 which is placed in Chapter XII caste an obligation on the Investigation Officer to forward to the Magistrate the concerned police report containing the necessary details and it is to be accompanied by the documents and copies including the statements of the witnesses under section 161 with a qualification vesting a right in Investigation Officer appending a note to exclude some part of the statements if found to be not worth disclosing for certain reasons. Section 204 of the Code enjoins on the Magistrate to proceed in a case where there is sufficient ground for proceeding under section 207 of the Code. In a case instituted on a police report the Magistrate has to furnish to the accused free of cost the copies of the relevant documents. Chapter XIX of the Code pertains to the trial in warrant cases with a category of cases instituted on police report. Under section 238 when the accused appears before the Magistrate at the commencement of the trial he has to satisfy about the compliance of the provisions of section 207 under which he is entitled to copies. Section 239 of the Code, the most vital provision in the wake of the controversy reads as :
'If upon considering the police report and the documents sent with it under section 173 and making such examination of any, if the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reason for so doing'.
The counter part of the other contingency of framing of the charges in reflected in section 240, which reads as :---
'240(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.'
24. Some of the features, which harmoniously flow out of this provision make it clear about the procedural structure. In that, in such cases the Magistrate is to satisfy that copies sent under section 173 are handed over to the accused whereafter on consideration of those documents, which include the statements of the witnesses, if he feels that the charge is groundless then order of discharge is to follow or otherwise, if there is a ground for presuming that the accused had committed offence then charge is to be framed. The difference in the terminology reflects the legislative intent. It would also make it clear that what considerations should weigh with the learned Magistrate either under sections 239 or 240 is restricted only to the perusal of police report, documents sent under section 173 and if required the examination of accused. This would, therefore, obviously exclude even remotely empowering the Magistrate to peruse any other document much less to discard the documents produced under section 173 being outweighed by such a document which does not come under the purview of the provision. In other words the affidavit of the complainant in the first instance was not admissible at the stage more so still it was not properly produced, proved and tested in cross-examination. Further this was not a document as contemplated by section 207 and examination of which was contemplated under section 239. If that be so then if could not be even read much less it could be accepted in order to out-weigh all other documents. That in the face of these features, each one of which is atleast in the ex facie, clear, can it be said that it was a case where the charge is groundless. On the contrary, the circumstances, and the evidence collected by the police make out a clear case at least in the prima facie field under section 240 of the Code of Criminal Procedure for presuming that the accused had committed an offence triable under that chapter, in which eventually framing of charge was inescapable, though surprisingly what is inevitable in law has been evaporated by the learned Magistrate almost drawing on his own imagination by distorting the facts and relying on thoroughly inadmissible evidence which ex facie is of highly debatable character and making the entire procedure topsy turvy. The direct involvement of accused Nos. 1 and 3 atleast in the prima facie field squarely fits in with the circumstances and the evidence collected by the police inasmuch as the allegation of conspiracy having been hatched by the said three persons in the prima facie field is acceptable atleast for the purpose of framing of the charge. Similarly, the allegations of cheat and the further allegations of forgery vis-a-vis the said document and commission of the said forgery also for the purpose of cheating as also the forgery of valuable security in pursuance of achieving the object of conspiracy as also in consonance with sharing of the common intention has been fully made out atleast in the prima facie field and that too atleast for attracting the provisions of section 248 of the Code warranting justification for framing of the charge against the three accused on all the counts.
25. It is well settled that existence of conspiratorial agreement is a matter of inference to be drawn from the circumstances since it is seldom that there is direct evidence available regarding the conspiracy as it is rightly observed time and again that rarely the conspirators proclaim about the conspiracy in advance. It has been repeatedly held that the gist of the crime of conspiracy is that two or more persons combine, confederate and agree together to carry out the object of conspiracy. With respect to the crimes classed under the term 'conspiracy' the external act of the crime is concert, by which mutual consent to a common purpose is exchanged and in such a crime it is sufficient if the combination exists and is unlawful, because it is the combination itself which is mischievous, it is also clear that under section 10 of the Indian Evidence Act in any act of conspiracy each conspirator is regarded as an agent of the other and is liable for what is done or said by other conspirator. It is further observed in Emperor v. Shafi Ahmed Nabi Ahmed, 31 Bom.L.R. 515 that is not necessary in order to complete the offence that any one thing should be done beyond the agreement as the conspirators may repent and stop or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete, it was completed when they agreed. In Mohd. Hussain Umer Kochre v. K.S. Dalipsinghji and another, : 1970CriLJ9 , the concept of conspiracy with its varied shades has been brought on forefront. It is indicated that agreement is the gist of the offence. Each conspirator plays his separate part in one integrated and united effort to achieve the object. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There is a general plan to accomplish the common design by such means as may from time to time be found expedient.
26. Various acts attributable to accused No. 1 individually and in association with accused No. 2 make it clear about the involvement in the commission of crime atleast in the prima facie field. The catalogue of events ex facie establishing this involvement of all the three accused would serve the purpose in assessing the justification for this conclusion. In any event, therefore, a clear prima facie case has been made out against accused Nos. 1 to 3 for the said offence to justify framing of the charge, the details of which though to a limited extent would be considered in the third category as to whether it amounts to preparation or attempt.
27. Accused No. 3 was obviously beneficiary and accused No. 2 was either his representative or on his admission a partner in the business and was interested in that firm. Therefore, merely accused No. 3 having not been seen by any one near about the office would be hardly relevant. Shri Kumar Mehta, the learned Counsel, therefore, rightly did not agitate that point atleast in the prima facie field.
28. It thus become manifest that the process adopted by the learned trial Magistrate making the affidavit almost as a foundation is unwarranted, unjustified and outright illegal. If such a procedure is countenanced then it would leave open the flood gate for several such occasions and the prosecution can be short-circuited even at that threshold on the basis of such documents, which are not evidence at that stage, so that there would be a short-cut and easier way atleast in some cases to earn a discharge and the prosecution would be hampered. If this is extended in a serious crime like murder, if not in genuine occasion, and if such an occasion is engineered then on the basis of such an artificial document even an eye-witness's account which apparently is corroborated by various circumstances can be very conveniently discarded. It is really said the better. If, however, such an occasion genuinely arose even then it must have its own point of time of maturity for its consideration and which point of time cannot be brought in advance by such utterly illegal procedure. The learned Public Prosecutor and the learned Counsel for the petitioner have criticised the affidavit also in the context of recitals the on as according to them, the said recitals make it apparently clear even on the surface that this must have been engineered by some agency, which according to the prosecution, could not be other than the accused, who were to benefit. It would not be proper to express any opinion in that behalf since the said affidavit is yet to be scrutinised. However, the manner of incorporating certain recitals makes it imperative to place that affidavit at the proper juncture of time under a very stringent scrutiny that would be required in normal course. The complainant was carrying the said burden of guilty conscience for years together and he ultimately took advice of his relations and friends and with a sense of responsibility as also with a sense of regret that he presented the same before the Court and he has also very courteously prayed to the Almighty to forgive him for committing the said crime. The criticism of the same containing overcome and attempt to over-do cannot be lightly brushed aside. It is however, better to leave it at that for its assessment at the proper stage.
29. Two other features are however, more formidable, in this category and those would be that assuming that the affidavit has been filed bona fide, the first is that the point of time to consider the said affidavit could not have reached at that stage. It would go on record only when the complainant would be examined, it at all he would be examined, when he could clarify the circumstances which prompted him to file the affidavit. It is apparent that it would be the prosecution who will have to test the truthfulness of the said affidavit as also the truthfulness of the complainant's evidence when he would be in the witness-box, which they can do in accordance with law. Thereafter the evidence led by the prosecution of which would thereafter be led by the prosecution will have to be assessed by the Court and along with that evidence the Court may consider the impact of the said affidavit, if it is inclined to believe the same and the totality of all these features would ultimately contribute in the formation of final conclusion. Consequently, the affidavit could not have even been allowed to be placed on record at that stage much less admitted it and even assuming otherwise it would never have been considered on its own merits and lastly it is impossible to conceive that at the threshold itself when not a single witness could enter the witness-box that such an affidavit could ever be accepted by the trial Court to throw overboard the entire prospective evidence that could legitimately be led by the prosecution.
30. The second equally serious infirmity is that the said affidavit no doubt contains some portion leveling allegations against M/s. Kulkarni, Deshmukh as also one Chota Haji and the complainant claims that he had visited Kulkarni's residence on some occasions wherein a valid demand for the illegal gratification for recommending his case was leveled and it is also suggested that these three persons along with Shri Srinivasan are really the devils of the crime. If that be so, then it is elementary that these three persons who are most likely to be examined by the prosecution must be given a chance to meet these allegations and this can be done only when they enter the witness box or otherwise wholesale condemnation behind their back is unknown. Further the so called contradictions relied upon by the learned trial Magistrate inter se in the police statements of the witnesses can never be a ground of discharge having regard to the said nature of contradiction, though in reality there are no contradictions as such. This is more so, because, it is the quality of the evidence at the trial that would be more material, at which point of time the police statements would pale in the background and could be utilised only for limited purpose. It is equally clear that the so-called contradictions and conflict in the recitals in the affidavit and the statements of witnesses cannot be considered at this stage much less the latter can be allowed to be overshadowed by the former that too such an extent as to discard the latter category.
31. In addition to these infirmities, there is yet another formidable circumstance in that category. The complainant's affidavit even taken at the maximum at its face value, which, however, cannot be done at this stage, still there are certain events that, according to the prosecution, have occurred exclusively within the knowledge of the accused and some of the prosecution witnesses and in particular M/s. Kulkarni, Deshmukh and Nagraj. Obviously the complainant was not present at that time and could have no knowledge either of its existence or non-existence. Many of such events are very material for the prosecution. Consequently, de hors of the said allegations the prosecution can still endeavour to establish atleast those events, which could not be covered by the said affidavit and if established, the prosecution may further-endeavor to exclude the affidavit and accept the other evidence. Therefore, the affidavit by this process cannot exclude the events and the evidence thereof which are not covered by the said allegations and which are quite vital, for the prosecution. Furthermore, inspite of the stance of withdrawal taken by the complainant, the prosecution can still be maintained since once the criminal law having been set in motion, if should normally reach its logical destination, more so when though initiated by the complainant's complaint, the prosecution is lodged by the investigation agency after careful screening of the relevant material and thereafter it is pursued and followed by the State. Moreover, Khas Mohammed, who is more vitally interested, has insisted on proceeding with the prosecution. The prosecution, therefore, cannot thus be thrown over-board at the threshold at the dictate of the complainant.
32. In view of these features, which harmoniously flow out of the situation, the process adopted by the learned trial Magistrate is wholly unjustified and out-right illegal. The affidavit can, therefore, safely be excluded out of consideration at this stage.
33. In the analysis, a short catalogue of events reproduced here in above even at the cost of repetition, which would serve as a backdrop to assess the contentions in all the three categories since in my opinion, the said events by themselves furnish answer to all the three items canvassed by the defence and accepted by the trial Court. These events harmoniously flow out of the statements of witnesses and documents collected by the police under section 161 of the Code of Criminal Procedure and all the witnesses are corroborated inter se by their oral statements or by the documents as also by circumstances.
34. Since the discussion so far pertains to the factual aspect, it would be proper to consider the third category of the contentions, which also touches the factual aspect viz., as to whether the acts constitute mere preparation or an attempt as also commission of offence. According to Shri Gumaste, the learned Counsel these acts even taken at the maximum do not travel beyond the stage of preparation. It is seriously contested by the prosecution. The series of acts are indicated in the catalogue already displayed. Restating of those events, therefore, is unnecessary. It is manifestly clear that each of the acts taken individually and if all the acts taken collectively totally exclude any possibility of those being resting merely on the stage of preparation. In facts they had traveled much far away and in some cases the offence is complete. That events are so glaring that it hardly requires any comments to substantiate this point in favour of the prosecution. A few illustrations may suffice the purpose, though in fact many of those have already been considered in the context of the first contention. Thus, as chronological order of events it suggests quite clearly though of course in the prima facie field, that there was an obvious anxiety on the part of the first accused to see that Roshanali's tender is anyhow not only recommended but accepted. This process of 'anyhow' accepting the said tender is implicit in the nature of acts. The material documents were placed in exclusive possession of the first accused by Shri Kulkarni on the same evening when the tenders were opened and statement were made. Accused No. 2 was freely visiting the accused No. 1. The learned Magistrate suggests that the fraud might have been committed by accused No. 2 without knowledge and without reference to accused No. 1. Ex facie atleast in the prima facie field it is difficult to uphold the same for obvious reasons. The obvious manipulation was done in some of the statements and original tender form in favour of Roshanali changing the figure from Rs. 1,01,000/- to Rs. 4,01,000/- subsequently to those documents having been handed over in custody of accused No. 1. Accused No. 1 did not want to send any correspondence through despatch and that is how two envelopes were sent with accused No. 2 himself. The draft itself indicates that the highest offer of Roshanali was for Rs. 4,01,000/- and not Rs. 1,01,000/- The mode of making the draft and sending it to Shri Kulkarni is also quite eloquent. It was a ready made draft in the sense that it was to be signed by Shri Kulkarni as Assistant Docks Manager and was to be addressed to the Docks Manager, thus making a show that it was Shri Kulkarni, who on his own, had sent the said recommendation, though in fact it was entirely otherwise. The relevant corrections were obviously in the hand of accused No. 1. Accused No. 2 had blurted out a very significant statement that he was interested in accused No. 3 while accused No. 1 was interested in both and he was installing in accepting the tender of Roshanali. What happened in the cabin of accused No. 1, which is discussed elaborately earlier, is also quite relevant and that assumes sinister significance when examined in association with some other features. Thus, for instance, accused No. 1 made no secrecy in suggesting to Shri Kulkarni to manipulate the statement 'B' to be in consonance with the plan in favour of Roshanali and even he offered a ball pen so that the change could be made in his presence. His anxiety not to call Shri Gadgil and other is relevant. One of the further events has also apparently sinister implication, in that original draft was torn into places by accused No. 1. The intervening circumstances are elaborately discussed hereinbefore. It would thus be manifest that at every stage there was not only a passive assistance or even connivance but there was a positively active involvement and participation on the part of the accused No. 1, which when considered in totality atleast ex facie spells out a sinister intention and the outcome of a planned conspiracy, if of course the prosecution are able to prove the same ultimately. Even the last stage of canceling the tenders and having public auction apparently was engineered by accused No .1 after realising that Shri Kulkarni was not prepared to surrender and significantly accused No. 3 was the highest bidder to the tune of Rs. Six lakhs. That is how as per the allegations right from the beginning to the end there has been an undercurrent of consistency to put forth different moves in pursuance of a pre-planned strategy, which when hooked together brings on the surface the real purport of the same spelling out criminal offence. Really everything was done by accused No. 1 within his control, which has apparent shade of criminality, as per the prosecution allegations and it is not as if that there was merely a desire in his mind and armed with a desire he was as if a passive spectator to the whole show. He was very much involved actively and took every step to translate that desire into action. Some of the acts really speaking are complete. Thus the act of forgery by accused No. 2 is apparently complete and which is not disputed at this stage. It is rightly submitted for obvious reasons that accused No. 1 himself would not change the amount or figure in the document and it is only for that reason that it had to be done by accused No. 2 though it does not mean that accused No. 2 was author thereof exclusively his own without any association with accused Nos. 1 and 3. The series of acts taken together ex-facie would make out a case of criminal conspiracy under section 120-B of the Penal Code and I am not prepared to accept that the prosecution had conceded even inferentially in not pressing this charge. All the shades as reflected through various acts are the outcome atleast apparently of the said conspiracy to achieve the object under the conspiratorial agreement between the three accused persons. In addition or in the alternative the charge of abetment of forgery can justifiable be leveled against accused persons. Even assuming that the forgery was done only by accused No. 2, such abetment as defined in section 107 of the Code can be either by instigation or even by conspiracy or by influentially aiding the same. The abetment by conspiracy can apparently be spelt out on the basis of the allegation of the prosecution. The third alternative also cannot be ruled out atleast in so far as accused No. 1 is concerned that this was also done sharing the common intention with accused No. 2. The definition of making of false document as contemplated in section 464 of the Penal Code can well be made out. The offence of commission of forgery under section 465 is also obvious which is much more than preparation through in fact it is complete by itself and if read along with section 120-B or section 108 or section 114 or section 34 of the Penal Code would make it complete by itself and in any event it would be much more than mere preparation. That the document may fall under section 464 of the Code also prima facie cannot be ruled out. The commission of forgery of the document with intention for its user for the purpose of cheating is also apparent on the basis of the allegations. The contention advanced in that behalf in so far as this offence is concerned has absolutely no means whatsoever.
35. As regards the participation in the charge under sections 417 and 420 read with section 511 of the Penal Code, the situation is equally bad for the defence. Shri Gumaste, the learned Counsel, endeavoured to place reliance on the definition of cheating under section 415 of the Penal Code are also under section 420. The learned Counsel submits that there was no inducement as such to any one to part with any property or to do or omit to do a thing. The argument is to the effect that the complainant cannot be said to have been cheated since no false representation was made to him nor was he induced to part with any property or to do anything which he could not have done or to omit to do something which he could have done and there was no fraudulent or dishonest intention. It is very clear from the charge-sheet that this is a misconceived reading of the situation. In that context it has been clearly mentioned that in pursuance of the said conspiracy and also in furtherance of common intention all the three accused attempted to cheat the Chairman of the Bombay Port Trust in granting license to accused No. 3 Roshanali on the strength of forged document viz., tender application and various statements and thereby they committed offences under sections 417 and 511 read with section 34 of the Penal Code. It is also mentioned that these document were forged in pursuance of the said criminal conspiracy and were being used for the purpose of cheating. It is thus clear that the act of deceit amounting to cheating is operated on the officials of the Bombay Port Trust so as to induce them to issue a license in favour of accused No. 3 on the fake documents, which otherwise accused No. 3 would not have been entitled to get the same and correspondingly the Bombay Port Trust Authorities would not have granted the same in favour of accused No. 3. It is this aspect that is embraced while the alleged act of cheating whereas the defence conveniently considers other aspects vis-a-vis the complainant only. It is apparent that outcome was that there was clearly an attempt in getting license issued in favour of Roshanali- accused No. 3, which the Bombay Port Trust Authorities would not have ever issued but for the inducement reflected in the forged document. In the first phase of the transaction, a systematic effort was done to see that the documents are changed and manipulated to suit the purpose of accused No. 3 so that he gets a license as highest bidder. After having realising the same and after having made steps in that behalf complete by themselves and not merely preparing for the same, as a last phase of it realising the attitude of the officials that the tenders were cancelled and public auction was directing and more strikingly that too was done by accused No. 1 without any reference to the Chairman, which normally would have been otherwise. This was also not an idle move as is apparent from the subsequent move, in that accused No. 3, who is substituted to be the highest bidder in the public auction gave a fabulous offer of Rs.6,00,000/-. Everything thus was complete within the control and power of accused Nos. 1, 2 and 3. This, however, could not materialise because of the circumventing circumstance beyond the control of accused persons, including accused No. 1 inasmuch as Khas Mohammed and/or the complainant complained constantly and brought to the notice of the officials the alleged fraud, that the officials were put on alert and realising the potential mischief, the said open auction came to be cancelled not by accused No. 1 but by other highest ups. Thus, all possible things have been done by these accused persons whatever was within their control and power though the object might have frustrated due to intervening circumstances, which was also not the creation and within the control of these accused persons.
36. The learned Public Prosecutor and Shri Dudhat, the learned Counsel for the petitioner, also submit with justification that looked from complainant's point of view also offence of cheating can be made out atleast to the extent of attempt. According to the system or practice the highest bidder normally would get the contract. It is also in consistency that for same reasons some of the tenderers may abandon their claims. Roshanali at the initial stage was not really in the run as his tender was of much lower denomination. The intervening tenderers thus lost their chance including Khas Mohammed, who was entitled in his own right and if he had not accepted for some reasons then none would have. It is but for this representation reflected through the manipulated document that the other tenderers had also abandoned their claims realising that they are much below the amount of Rs. 4,01,000/-. Thus they were induced to do something or omit to do which they would not have done or omitted but for this representation. Looked at from that angle also there were apparent shade or atleast an attempt to cheat even vis-a-vis the tenderers. This, however, is incidental since the gravamen of the charge is rightly reflected in the charge-sheet relating to cheating or attempt to cheat the higher-ups of the Bombay Port Trust, the details of which are already indicated. In that field also the learned Magistrate has made his order extremely vulnerable and slippery. The reasons assigned hardly contain any cogency. The learned Magistrate obviously had to strain himself and in that process he has directed and also mutilated several items in the prosecution case. In fact, it is merely superficial reading of the evidence when the learned Magistrate observed that accused No. 1 is alleged to have only invited the report from Shri Kulkarni so that he himself may recommend to Chairman to grant license to Roshanali and as such calling for a report would be nothing but a preparation. It is also observed that accused No. 1 was merely a recommending authority, the license was to be issued by the Chairman and, therefore, obtaining a report would be only the stage of preparation and not an attempt. It was further observed that a contingency can well be visualised that accused No. 1 could have even after receiving these paper from Shri Kulkarni thrown those away and may have persuaded the Chairman, I do not think any serious note of these observations should be taken in the context of several impressive events in the prima facie field making direct involvement of the accused not merely reflecting a desire but very much translating that desire in attempt in some part and in complete acts in other. The said finding, therefore, lands itself in the same category as the first finding and thus both could accompany each other carrying an outright vulnerability and unsustainability of the same. There is hardly any rationale much less any logic in the reasons assigned in favour of these findings.
37. The principle high-lighting the first distinguishing line between preparation and attempt is well settled. However, re-enunciation of well settled principle has unfortunately become inevitable in the instant case on account of utterly irrational approach adopted by the learned Magistrate being oblivious to such process, though unfortunate it is.
38. A reference in that category to a few decisions may suffice the purpose. In Abhayanand Mishra v. State of Bihar, : 1961CriLJ822 the Supreme Court observed in that context as :
'There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, than makes preparation for committing it and thereafter attempts to commit this offence. If the attempt succeeds, he has committed the offence if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence.'
39. The Supreme Court in the final analysis summarised the law as :---
'A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be penultimate act towards the commission of that offence but be an act during the course of committing that offences.'
In the said case the penultimate act remained incomplete though became frustrated as the fraud was discovered. The appellant represented that he was a graduate and was teaching in particular school and he sought permission to appear for M.A. Examination. The said statement was accepted. The appellant furnished the relevant documents, which were despatched to the Head Master of the School where he was employed though the information reached about the appellant not being graduate and it was later on disclosed that it was a false certificate on account of which admission card was withheld. It was held in that context that the preparation was complete when he had prepared an application for the purpose of submission to the University. The moment he despatched it, he entered the realm he intends to do. He did not succeed in deceiving the University and inducing to issue admission card. He just failed to get it and appear for examination because something beyond his control took place inasmuch as the University was informed about his being not graduate. The conviction of the appellant under section 420 read with section 511 was confirmed.
40. In Sudhir Kumar Mukherjee v. State of West Bengal : 1973CriLJ1798 , this principle has been reiterated when it was observed that the moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct, which is nothing less than an attempt to commit the offence as contemplated by section 511. It is further enunciated relying on an English decision that the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt because the person committing the offences does or may repent before the attempt is completed. It was also accepted with approval the observations in another ratio to the effect that section 511 uses the word 'attempt' in a very large sense, it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is conducive to its commission, is itself punishable and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section.
41. In the said case it was held that attempt to commit on the allegations that quite a large amount of money was due to the Company and challan was prepared and initials of the concerned clerk were obtained by the accused and, therefore, it was definite step towards commission of offence of cheating though penultimate steps of affixing the stamp and signing by accused in order to enable the supplier to receive payment were not completed. It was thus said that the acts of the accused did not stop at the stage of preparation but had reached the stage of attempt.
42. In State of Maharashtra v. Mohd. Yakub and others, : 1980CriLJ793 it was observed as :---
'Attempt defies a precise and exact definition. There is a distinction, between 'preparation' and 'attempt'. Attempt begins where preparation ends. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divide into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparation to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such over act or step in order to be 'criminal' need not be the penultimate act toward the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. Such act must be an act during the course of committing that offence...... Thus construed, the expression 'attempt' within the meaning of these penal provision is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation...'
43. In the said case it was held that most steps in the course of exports by sea had been taken while only step that remained to be taken towards the exports of silver was to load it on sea-craft for moving out of the territorial waters of India but for the intervention of the officers of law, the unlawful export of silver would have been consummated. It was held on those facts including the disappearance of the sea-craft when the officers intercepted that the accused deliberately attempted to export silver by sea. The learned Judge in the said case while delivering the judgement in that context observed as :-
'......In other words, the acts must reveal, with reasonable certainty, in conjunction with other facts and circumstance and not necessarily in isolation, an intention, as distinguished from a mere desire or object to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention...'
44. Examined this ratio and the guide-lines in juxtaposition with the facts, it becomes manifestly clear that there was no question of mere preparation but in respect of some offences these were complete while in others there was a clear attempt to commit those offences. There has not been merely a desire but there has been a clear intention and in pursuance of that intention obvious overacts were done. It is not necessary that in any series of acts each of such must contain some overt act, though even one out of the said series may be an attempt in achieving the object. Further the penultimate step may remain to be done for any reason beyond the control the accused, which would be immaterial, the amalgam would be very clear that all the steps taken by the accused under a conspiratoral agreement clearly make out a case of offence criminal conspiracy, forgery etc. while attempt atleast in respects of prospective charge under section 420 read with section 511 of the Indian Penal Code is well made out. It, however, should be observed to ward off any confusion that as per the prosecution some of the offences are complete and there is no question of there being merely an attempt to commit the same. This would mainly apply to the offence of the alleged forgery which is further alleged to have been committed in furtherance of conspiratoral agreement under section 120-B as also in the alternative the same having been committed by accused No. 2, there has been abetment by the other accused for the commission of the same offences. Consequently the discussion about the preparation and attempt does not mean that as per the prosecution case there is no commission of offences, being complete by itself. The said discussion, therefore, applies only to such acts, which according to the prosecution amount to attempt which are in addition to some acts, which are complete by themselves. No doubt. It is rather unusual that the Court has to have a detailed survey of situation has, however, been forced on account of the discussion made by the learned trial Magistrate in such a great detailed, which was based entirely on the said police paper. The detailed decision hereinabove, therefore, had become inevitable.
45. Then arose the proper point of time and juncture to consider the second category about the applicability of the provisions contained in section 197 of the Code of Criminal Procedure. In that there are two facets under the controversy, one whether the first accused can be deemed to be a public servant even vis-a-vis the offended which are alleged to have been committed in the context of the provisions contained in section 112 of the Major Port Trust Act and section 21(12) of the Penal Code. The prosecution would have it that he is not seemed to be a public servant in so far as these offence are concerned as contemplated by the provision of Major Port Thrust Act whereas according to the defence his capacity is embraced by the generalised provision contained in section 2, Clause 12 of the Penal Code requiring necessary of section. The second facets is that even assuming that the first accused is a public servant in the context of necessary of sanction, still whether the provisions of section 197 of the Code of Criminal Procedure are attracted. According to the defence all the alleged acts done by the accused No. 1 have been done either in the discharge or atleast in the purported discharge of the official duty and as such sanction under section 197 of the Code of Criminal Procedure would be absolutely essential in the absence of which the prosecution is un-sustainable. On the contrary according to the prosecution, by no stretch of imagination it can be held that the alleged acts are the outcome of a discharge or even purported discharge of the official duty as according to them the official position may only furnish an opportunity though real crux of the matter is entirely different. Both side have pinned their more in the second facet about the applicability or otherwise of section 197 of the Code and for obvious reason therefore, it could not be improper to consider the second point first and if the defined in that category then the question whether they succeed on the first count holding the first accused as public servant could be more academic and may pale in the background.
46. As started at the outset, Shri Gumaste, the learned Counsel, very much desired that the facts need not be taken into account on their merits vis-a-vis the question of section 197 and he wanted to assess the situation, strictly in water-tight compartment and which for obvious reasons could not be done as consideration of these aspect also must been the context of the facts and could not be in isolation. It is well settled that it would be the allegations as disclosed by the prosecution at the threshold that would be relevant in deciding this question, the truthfulness of which can well be assumed in this field. Shri Gumaste, the learned Counsel, also submitted that the issue of section may be left open as according to him it can develop from stage to stage as the facts may take tangible step and defence can argue that point at the proper juncture of time after the trial commences. There are two obvious hurdles in accepting this theory. The first is that in the trial Court the defence felt and were convinced not only of the strength of their contention but also about the facts that the data available at that stage was more than adequate to decide the question one way or the other. Secondly, the learned Magistrate has elaborately discussed this point accepting the defence contention and upholding the necessity of sanction. The third difficulty that the necessity of the sanction if accepted would be a very relevant feature at the inception of the proceeding inasmuch as it is prescribed that no Court can take cognizance of any such offence accept on the basis of sanction meaning thereby that taken of the sanction and thereby investing jurisdiction at the threshold depends on this issue and, therefore, it is always desirable to consider the same at the threshold. This is more so when the trial Magistrate was invited by the defence to decide it at that stage. The last feature is, however, more formidable. The facts as alleged by the prosecution and as reflected through the police papers fall within the circumscribed structure with the boundaries well defined and which are made known to everyone including the defence and the Court even before the evidence is led. This perhaps could be the maximum that can be achieved by the prosecution at the trail, though the evidence would be to bolster up that case by unfolding various items of evidence. There is no uncertainty of events in the instant case right from the beginning till the end. If that be so then ex-facie it is difficult to accept that the evidence may take a different shape at the trial. This is in the face of the facts and circumstances and the alleged involvement of accused No. 1 in the context of events. All the items of evidence to be led would be in support of this structure. Consequently, therefore, atleast apparently there is no impediment to decide that question at this stage and this would be so inspite of an accepted principal that in a given case facts may develop from stage and may charge the complexion of the question of sanction.
47. In so far as the provisions of section 197 of the Code of Criminal Procedure there is catena of cases in the field settling down the principle viz-a-viz the interpretation of those provisions. The earliest case can be traced to the ratio in Dr. Horiram Singh v. Emperor, . The medical practitioner was charged with an offence of pilfering the medicines from the dispensary and thus, committing misappropriation of the same and to facilitate the same, he had falsely filled in the registers maintained for the medicines. It was held that in respect of the second count of false entries in the register, sanction was necessary, while no such sanction is required for the first count of misappropriation as there is no nexus whatsoever even inferentially with his duty as regards the said charge of misappropriation while making of the false entries springs from the foundation of the basic duty to fill in the register and since it has been dishonestly done. It is the purported discharge which charge would require the sanction. In H.H.B. Gill v. King , similar ratio has been enunciated giving an illustration that a Government Medical Officer cannot be said to act or purported to act as a public servant in picking the pocket of the patient, whom he has examined, though examination of patient itself may be such an act. In the analysis a very crucial test has been laid down and which has been accepted all throughout to the effect as to whether the public servant, if challenged, can reasonably claim what he did was by virtue of his office. In both these decisions, provisions of the Government of India Act were under scrutiny, though it was indicated that those are on para materia with those contained in section 197 of the Code of Criminal Procedure. In the said case the accused faced charges under sections 120-B, 420 and 161 of the Penal Code where the plea for sanction to prosecute under section 270 of the Act came to be negatived. These provisions were again placed under scrutiny in Navroze Barla v. L.H. Mehta, 75 Bom.L.R. 493 where a learned Single Judge held that sanction to prosecute is not necessary for the offence of abetment of forgery, though such sanction is necessary for the user of the said document or far allegations of wrongful restraint. Therein, the accused, as a superior officer supported to have accepted a forged resignation letter, while himself abetting in the matter of forgery. It was clearly held that for this offence of abetment of forgery, there is no nexus whatsoever with the official act, though it only gave him an opportunity to commit the offence. The situation was little different in respect of other two offences, as basically, there was a duty to accept the resignation.
48. Heavy reliance is placed by Shri Gumaste, the learned Counsel for the respondents, on the ratio in Virupaxappa Virappa v. State of Mysore, : AIR1963SC849 . Therein, a Sub Inspector of Police apprehended an accused on suspicion and on his personal search, a particular number of packets of ganja were found. The panchnama was recorded, though the officer dishonestly reduced the number of packets. This happened on 23rd February. However, on the next day i.e. 24th of February, the officer made a separate report as also a different panchnama, wherein a different situation was depicted, in that it was mentioned that the person, who was carrying contraband had thrown packets and had run away, which was obviously to exonerate the accused. The question arose as the whether prosecution would lie after a period of six months, as contemplated by section 161 of the Bombay Police Act, as the act was done under colour of office. The Supreme Court held that basically, it was within the capacity of the Police Officer to record a panchnama and make a report, which he could do honestly, in which event, it would event, it would have been the honest discharge of the duties. Nonetheless, he could do it dishonestly, which could have been a purported discharge of the duty. In both the cases, there is integral nexus with the duty. In the final analysis, it was held that the alleged act would satisfy the test laid down by Privy Council in Gill's case (cited supra) that if questioned or challenged, the Police Officer could have successfully satisfied that what he was doing was nothing but his duty. The learned Counsel relies on this in support of his contention that calling for the report from the subordinates asking them to do particular thing in a particular manner and even utilising forged document in the routine course and ultimately directing open auction would satisfy the test laid down. The first respondent-accused could have successfully met the said challenge by proclaiming to the world that all this was being done as a part of his duty though he may do it dishonestly. It is also submitted that in the said case, even a subsequently panchnama was false and still it has been accepted as the purported discharge of duty though on the second occasion he was not investigating the matter. This aspect would be properly dealt with at the proper juncture and proper point of time, though it would suffice to observe that factual aspect has been completely misconstrued to a large extent making it over simplified obviously to suit the convenience of the defence theory, while completely ignoring the most basic fallacy thereunder. Reliance was placed in the said case on the ratio of a Full Bench decision of this Court in Narayan Hari v. Yeshwant Ravji A.I.R. 1938 Bom 358, where the Sub-Inspector did two fold act viz., he incorporated false recitals in the statements of the witnesses, who were being examined by him under section 161 of the Code while in addition he assaulted one of the witnesses during that process and it was held that the last part had not even an ostensible or pretended nexus with the official duty, whereas the first part was in the purported discharge, inasmuch as basically it was within his duty and jurisdiction to record the statements, though in that he recorded it dishonestly and thus, sanction was held necessary for his part only.
49. This aspect has been further considered by this Court in Gorakh Mahale v. State of Maharashtra 1965 Mh.L.J. 94, when it was held in terms that provisions of section 161 of the Bombay Police Act as under the colour of office are more or less on par with the provisions of section 197 of the Code. It was also held that those words would have the meaning that the accused was using the existence of his official duty, as a cloak for his corrupt action and as a veil to its falsity.
50. In so far as the offence under section 409 of the Penal Code is concerned, there are few decisions in the field. As stated, the Federal Court in Dr. Horiram's case clearly held that such an act has no nexus whatsoever with the duty. In Shrikantayya Ramayya v. State of Mysore, : 1955CriLJ857 , it was indicated that the Court has to find out that the alleged act should have some relation in any manner with the discharge of the duties, though an act can be performed honestly or even dishonestly, when in the former it is the discharge of duty while in the latter contingency it becomes purported discharge of the duty. It was further observed that the Court has to examine not the duty as such so much as the act, because an official act can be performed in the discharge of official duty as well as in the dereliction of it. However, if the act is thoroughly unconnected with the official duty, then there is no question of trying to trace as to whether it was done honestly or dishonestly. Emphasis was placed that the Court has to concentrate on the word 'offence', which term seldom consists of a single act but many times comprises of series of acts. In the said case, it was held that irrespective of the intention, the physical part remains unaltered, which also included the act of dishonest disposal of the property after it was officially entrusted and therefore, if it was official in one case, it was official in the other case. In that vain, it was held that sanction was necessary, as the offence would be incomplete without proving the Official Act. The facts therein are peculiar. The accused were not only officially entrusted with or had dominion over the property, but even the process of disposal of that property was exclusively within the scope of their official duty. It is under these circumstances that the disposal was made though in a dishonest or fraudulent manner and thereby the offence of criminal breach of trust was committed. It is apparent that the foundation about the authority to dispose of the property fall within the scope of duty which could be done honestly or dishonestly and hence it is conceivable that in such a case the Court could satisfy the test laid down in Gill's case.
51. In Amriksingh v. State Pepsu, : 1955CriLJ865 accepting the said ratio, it was further observed that it is not every offence, which requires sanction, nor every act done by public servant while actually engages in the performance of his official duty, but if the act complained of its directly concerned with his official duty and if he can satisfy the test laid down by the Privy Council, then the sanction would be necessary. On the facts of the said case, however, it was held that sanction would be necessary even for the offence under section 409 of the Penal Code. Therein, an amount of Rs. 51/- was alleged to have been shown to have been disbursed to a labour, which position, however, did not exist, though the muster roll made such an entry and it is in that context that it was held that the act fell within the scope of duty, which was reflected by the said entry, which could apply even to the alleged act of misappropriation of that amount. This ratio, however, has been made highly debatable in the subsequent decisions and in any even it was expressly observed that the same should be restricted to the special facts of the case. This view in later decision thus would have the necessary impact.
52. In Baijnath v. State of M.P., : 1966CriLJ179 , the two employees of Electronic Power House embezzled large amounts by abetting each other for which purpose false entries were made in the Cash Book. Sanction was held not necessary for the offence under section 409 though it was held necessary for the one under section 177-A of the Penal Code. The Supreme Court on review of the various ratios expressed a doubt about the soundness of the ratio in Amriksing's case (cited supra) and ultimately formulated that it is not every offence committed by public servant not even every act done by him while he is actually engaged in the performance of his official duty, which would require a sanction, the situation however, would be different if when questioned he could claim that it was done freedom of office. It was also indicated that the offence may be entirely unconnected with official duty as such and it is only when it is either within scope of official duty or in excess of it than protection can be given.
53. In Om Prakash Gupta v. State of U.P., 15, A.I.R. 1957 S.C. 459, it was held that no sanction is necessary for prosecution under section 409 of the Penal Code, since in that the public servant does not act in his official capacity as public servant not does the act have any nexus with the duty. Therein the accused, a Clerk in Electricity Department, had misappropriated some amounts which he had received in his official capacity. Accepting the consistent view in such matters, the plea for sanction to prosecute was negatived.
54. In P. Arulswami v. State of Madras : 1967CriLJ665 a similar view is taken. Provisions of section 106 of Madras Village Panchayat Act were under examination which have similar terminology as in section 197 of the Code. The President of the Panchayat Board was alleged to have committed misappropriation of funds though the defence was that in his official capacity he had invested the amount after encashing the National Savings Certificates along with the other amounts in Small Savings Certificates. Plea for sanction to prosecute was negatived. It was observed that it is not every offence committed by public servant that requires sanction not even every act done by him while he is actually engaged in the performance of his official duty, but if the act is directly concerned with his official duty so that if questioned, it could be claimed to have been by virtue of the office, than sanction may become necessary. It was further observed that it is the quality of the act that is important.
55. In S.S. Saha v. M.S. Kochar, : 1979CriLJ1367 the Supreme Court once again dealt with this aspect exhaustively. It was indicated that it would mostly depend on facts of each case it was however, unmistakably indicated that the decision in Shreekantayya's case and Amrik Singh's case (citied supra) entirely depend on the 'special facts' of those cases. As discussed earlier, Shreekantayya's case the peculiarity was that not only the entrustment, but even the disposal of property was within the ambit of official duty and, therefore, while dishonestly disposing the same, the accused would conceivably satisfy the test laid down in Gill's case. The Supreme Court, therefore, further observed in that context that the alleged misappropriation or breach of trust may be inseparable intertwined with the performance of the official duty. However, as regards ratio in Amrik Singh's case, it was expressly observed that its correctness was doubted in Baijnath's case (citied supra) so much that its validity is 'badly shaken' and thereby making the ratio in Amrik Singh's case highly debatable and in any event it could not be made of universal application, but was restricted to the 'special facts' of the case. However, placing reliance with approval on the ratio in the decision in Baijnath v. State of M.P. (citied supra), Harihar Prasad v. State of Bihar : 1972CriLJ707 and Om Prakash Gupta's case (citied supra) it was accepted as the proper dictum when it was held that no sanction for an offence under section 409 of the Penal Code is necessary which is in consonance with the ratio in Dr. Hori Ram's case. No doubt it was indicated that this would depend on the facts of each case and a case may be conceived though rarely and which was in view of facts in Shreekantayya's case, when such an act is inseparable with the official duty. In the said cases, accused had seized certain goods, which were held in trust, to be dealt with in accordance with law. The said goods, however, were misappropriated, committed an offence of criminal breach of trust and in that context it was held that the said act has no nexus whatsoever with the duty, though, at the most, the official status of the accused could furnish him with an opportunity or occasion to commit the alleged Criminal Act.
56. In so far as an offence under section 420 either read with section 511 or 109 of the Penal Code, it has been consistently held that no such sanction is necessary, under section 197 of the Code. Thus, for instance. In K. Satwansing v. State of Punjab, : 2SCR89 , it has been clearly held by majority decision that the act must lay a reasonable but not a pretended or fanciful claim that the public servant did it in the course of performance of his duty. It was then very aptly observed that some offences cannot by their very nature be regarded as offences committed by public servant in the discharge or purported discharge of their official duty. It was ultimately held that where a public servant commits an offence of cheating or abets another to commit such cheating, the offence is not one while he is acting or purporting to act in the discharge of his official duty, as it is unconnected between it and the performance of the duty of a public servant. The official status furnished only as occasion or opportunity for the commission of the offence. Similar view has been taken in Baxising Dhallwal v. State of Punjab, : 1967CriLJ656 . In both the cases, there is a similar pattern of allegations that a false certificates in favour of a contractor was prepared showing that certain work was done, though in fact it was not so done and it was certified by the superior officer on the basis of which, the amount in question was realised. Even in respect of that superior officer, who made the endorsement in favour of the certificate and thus attempted to cheat or abetted the act of cheating, it was held that this was wholly unconnected with his official duty, though his official capacity merely provided an occasion for him to commit the mischief, still the act has no nexus with the official duty and as such no sanction was necessary. It is true that it was held in Sunil Kumar Paul v. State of West Bengal A.I.R. 1965 S.C. 706 that the offence committed under section 420 of the Penal Code by the public servant was while purporting to act as such in the discharge of his duty. There a false bill was presented on which basis monies were obtained from the Bank. As the accused was purporting to present it in the discharge of his duty it was under those circumstances that the observation are made when the main question was whether such an offence would be covered by the schedule to the West Bengal Act. This, therefore, cannot be a proposition of universal application and further the facts are entirely different and in fact also issue was somewhat different.
57. This Court in Smt. Mary Kutti Thomas v. D.C.P. Shri Pawar 1983 Cri.L.J. 1652, to which I am party, on survey of the relevant ratios, has reiterated all the relevant deductions with the necessary details that harmoniously flow. Therein the Police Officer concerned was charged for assaulting a citizen, an under trial prisoner, while in custody during investigation and for leveling threats to his family members. It is held that the said acts had no nexus whatsoever with the duty nor could the accused satisfy the test, it questioned or challenged, and as such no sanction was held necessary. The said ratio and observations therein can will be adopted here in also. It is not necessary to multiply the illustration under ratios since the undercurrent is identical.
58. Various events that has been reflected in the catalogue already indicated make it very clear that in reality none of these acts had any direct nexus with the official duty nor could the accused satisfy the test and that it challenged he would proclaim to the world at large that what he was doing was his official duty, though under that veil or clothe he may do the act dishonestly. A mere distinguishing further in Virupaxappa's case, which is very much relied upon, is to the effect that under the Code of Criminal Procedure or Police Manual basically the Sub-Inspector is empowered with the duty to record a panchanama or a statement or make a report. He may do it honestly which may in the discharge of his duty or he may do it dishonestly which may be purported discharge, though in the both cases he may get protection having nexus with the official duty. The foundation, however, is that the main act of recording the panchanama or the statement falls exclusively within the domain and jurisdiction of the officer concerned. Shri Gumaste, the learned Counsel, sought to over-simplify the situation in the submitting that it was within the domain of the accused to call for a report from his subordinate and even to recommend or even to pass an order canceling the tenders and directing public auction. This submission takes into account the only one or two of the acts and that too in isolation. The basic difference is that in the instant case accused No. 1 himself has not made a report or a correction but he was calling for the report from his subordinate with the full knowledge asking them expressly to make a false report. This distinguishing feature makes it clear that the test may not be answered in his favour inasmuch as if challenged in that process could he have satisfied that by asking subordinate to commit the forgery he was doing his official duty. The Sub-Inspector in that case had himself made a panchnama or record statements and that act does not require any vigilant proclamation since the panchnama may not be read at that time when it was scribed by others. However, assuming otherwise if some one questions him as to what he was doing he could have well remained behind the camouflage that he is recording the panchnama as a part of his duty. It could not be extended to mean that he may ask the subordinate to make a false panchnama, and still he can claim to be acting in the purported discharge of his duty. This is not the end of the matter since several other events also cannot satisfy the test successfully. To put it in other form, can accused No. 1 successfully meet the charge and satisfy when challenged that what he was doing was his official duty-when he was allowing accused No. 2 to liberally visit his office without apparently there being any rhyme or reason, in sending the papers not through despatch by through accused No. 2, who was vitally concerned with the same-informing the subordinate through accused No. 2 to make manipulation in order to support the claim of accused Nos. 2 and 3 dishonestly-make a similar suggestion to the officers subordinate directly to make clear forgery and manipulation in the statements and other documents and offer instrument of writing for making that change immediately - sending a draft of a report and thus inviting it from subordinate making it clear that it should contain the said false statement including the forgery-could he have successfully refuted the charge leveled by Shri Kulkarni that this is nothing but criminal offence could he have pressurised subsequently the officers to give statements in a particular manner - could he have forced by situation the subordinate to make a report in a particular manner in order to achieve his object and could he have cancelled the tender under the circumstances and lastly could have even touched the original tender forms and statements and have made correction either by himself or allowed the co-accused to make manipulation and forgery in the original documents without himself touching the papers, which were by then officially lodged in the Department and private party could have no access to them - could he have manoeuvred the entire show in order to see that Roshanali gets a tender manipulated the documents in that behalf and being frustrated thereafter cancelled the tenders. In effect the acts or atleast many of those are such that if challenged accused No. 1 would never have satisfied that those were being done in the discharge or purported discharge of his duty, though the office which he held may have afforded an opportunity or occasion for him to commit those things. The alleged act of forgery or its abetment and entering into a criminal conspiracy in order to achieve the alleged nefarious object can obviously not fall in the category requiring protection. Apparently engaged in the process of writing a statement or recording a panchnama by a Police Office as in Virupaxappa's case or disposal of goods as in Shreekantayya's case by itself may not cause suspicion of any one while it is being done mainly because to deal with such process is usually a part of his duty and at any rate the challenge, if made, could be successfully met with by the respective accused, that he was doing his official duty. This, however, is far from the facts of the instant case and to incorporate this analogy to these facts would absolutely be out of harmony. In my opinion, the position is quite clear requiring no further comments in discarding the various contentions in that behalf. It is the totality of all these events, which must be taken into account since as accepted an offence may contain a series of acts and not necessarily a single unit. The ratio is Virupaxappa's case therefore, cannot have application to the facts of the instant case an the same would be true in respect of the other decision relied upon by Shri Gumaste, the learned Counsel, which have been discussed in that filed.
59. Thus viewed in proper perspective it is difficult to endorse the finding of the learned Magistrate that a sanction would be necessary under section 197 for this offences as the facts and the allegations stand, the sanction would not necessary for any of such offences -viz., s. 420 or 417 read with section 511, 465, 467, 468, as also its abetment and of course 12-B of the Indian Penal Code.
60. In view of these findings the second aspect of these category as to whether the first accused in a public servant or not for the purpose of section 197 of the Code would pale in the background and discussion would be more or less academic. I would, therefore, only incidentally refer to that aspect. Shri Gumaste, the learned Counsel for the first accused, submits in that behalf that section 21 Clause (12) sub-clause (b) of the Penal Code embrace in a general manner all employees of Corporation and not restriction to the categories or contingencies as prescribe in the Major Port Trust Act and this according to the learned Counsel will over-ride the provisions contained in section 112 of the said Act. The learned Public Prosecutor for the State and Shri Duthat, the learned Counsel for the petitioner, endeavoured to submit that this would not be so as in the first instance the provisions under the Act being the special provision would over-ride the general provisions, secondly this provision has been retained under the Act even after section 21 was emended and lastly it is not as if that the legislature was obvious to all those features when protection was sought to be given though restricted to law offence which are relevant in that behalf. It is also submitted that section 21 of the Penal Code with that relevant clause has been enacted essentially to cover those acts of the Corporation or other statutory bodies in respect of which there was either no provision under the Act making the employees as public servant for any purpose or that those have been made public servants not covering the cases for which section 21 was required to be amended, which essentially pertains to the charge of corruption. In effect, it is submitted that only the statute which omits to make any provision in that behalf regarding the character of the employees as public servant just an in Khadi & V.I. Commission Act or the statute which tends to indicate that the employees shall be deemed to be public servants only while discharging their duties under that Act just as the State Road Transport Corporation Act, as it is stood before amendment would be covered by the generalised provision under section 21(12)(b) of the Penal Code. The learned Magistrate however upheld the submission on behalf of the defence.
61. The Major Port Trust Act came into existence in 1963, though its operation commenced in 1964. Section 3 relate to the constitution of board of Trustees and section 5 makes it clear that Board constituted under this act shall be a body corporate. In the original act section 89 was placed as being relevant in that behalf and which is in para materia with the provisions of section 112 of the new act. In other words, the provision in the earlier act has been retained in the new act. Section 112 stipulates that every person employed by Board under this act shall be deemed to be a public servant within the meaning of section 21 of the Penal Code in so far as relating to offences under sections 161 to 171, 184, 185, and 409 of the Penal Code and the provision of prevention of Corruption Act. Bunch of section 161 to 171 fall in Chapter 9 relating to offences by or relating to public servants which include the offences of accepting illegal gratification. Section 184 pertains to obstructing sale of property offered for sale by authority of public servants and section 409 relates to criminal breach of trust by public servant. In juxtaposition section 21(12)(b), which is claimed by the parties as relevant one has an ostensibly generalised sweep indicating that every person in the service or pay of Corporation established under the Central Act shall be deemed to be a public servant. The argument that emanates, therefore, is to the effect that by reason of this amendment to section 21 of the Penal Code the provision of section 112 of the Port Trust Act became superfluous or in any event those merge in the former. The said provision of section 21 of the Penal Code was first amended in the year 1958 and sub-clause (b) which is re-constituted has been placed in the statue in the year 1963. Reliance is sought to be extracted from the ratio in Navroze Barla v. L.H. Mehta 75 Bom.L.R. 493, which was considered in the other context earlier. The learned Single Judge of this Court accepted in term holding that in view of section 21(12)(b) of the Penal Code the provision of section 112 of the Act became reluctant with the result that every employee of the Corporation shall be deemed to be a public servant for all purpose and not restricting to those section which are carved out in that provision. It is true that this Court in the said decision had taken the said view in terms and repelled the argument that the special provision would over-ride the general provision.
62. Reliance is also placed in the ratio in Akhtar Alam v. State of Bihar : 2SCR682 wherein section 81 of the Electricity Supply Act was considered and it was held that the officer of the Electricity Board were deemed to be public servant within the meaning of section 21 of the Penal Code only when acting or purporting to act in pursuance of the Act. It was held that accepting the bribe is not such an act and, therefore, under that provision the employee could not be held to be a public servant within the meaning of section 21. However, on a different track relying on Clause 12 of section 21. It was held that the Head Clerk in the said Board would be an officer and as such public servant within the clause. This does indicate that the provisions of section 21 are made to over-ride the provisions of section 81 of the Electricity Supply Act. Similarly, in Jagatsing Arora's case (cited supra) there has been similar provision of Road Transport Corporation Act stipulating that the employee is a public servant while acting under the said Act when it was held that acceptance of bribe does not fall in that clause. It was, however, indicated that since there was no specific provision in Penal Code as it stood, at that time, the Supreme Court observed that in the absence of any other provision the accused could not be dealt with treating him as public servant for that purpose. Both these cases, apparently may lend support to the contention on behalf of the defence. However, the learned Public Prosecutor have endeavoured to counter by submitting that either under the Electricity Supply Act or Road Transport Act in the said two cases it is not as if that certain offences were carved out but only a restricted statement was made they shall be deemed to be public servant only while discharging their duty under the Act and this may have prompted the Court to take resort to section 21. However, in the instant case the legislature in its wisdom, so contend the learned Counsel, have carved out a bunch of offences with reference to the capacity of employees as public servant under section 21 of the Penal Code and all those section do give protection to the officers from harassment of criminal prosecution while at the same time they can be held liable for committing those offences as the bunch consists of offences of illegal gratification, bribe as also of criminal breach of trust by the public servant all of which are capable of being committed by the public servant. Therefore, mischief is averted in meticulous manner and if that be so then section 21(12)(b) should not be made to over-ride especially by the provisions under the Act are special provisions. It is also submitted be the learned counsel that it is not as if that employees of the Corporation do not become public servants but that their involvement with reference to the limited offences would be material in that discussion. It is also submitted that having regard to the object in amending section 21(12) it is strongly indicated that it was essentially found necessary to do so covering the case of corruption against the public servants since some of the statutes contained no provision while some contained provision which would be not embrace that situation and if that be also then the offences of corruption under the Penal Code as also under the corruption Act are fully taken care of by the legislature by the special provision.
63. As stated at the outset, in so far as this category is concerned in view of the firm finding regarding non-application of section 197 a firm finding on this forum may become unnecessary since even assuming that the first accused is a public servant still his act do not fall under section 197 of the Code, though I may hasten to add that the contentions raised on behalf of the prosecution cannot be lightly brushed aside and require a serious thought and consideration having regard to the scheme of the two Act and the legislative intent and also the effect that is being achieved by snatching that provision and if that contention is accepted then this would be an additional factor in favour of prosecution. This aspect has not been considered by the learned Single Judge and this aspect as reflected in the decision cannot be said to be free from any debate. This for the reasons already assigned need not detain us. This aspect thus can be conveniently kept open without being adjudicated upon in this proceeding.
64. A detailed discussion became necessary in the instant case in view of the thrust of the controversy coupled with a detailed order recorded on the learned trial Magistrate, especially when all these contentions were elaborately canvassed by the defence in the trial Court. In fact, it is rare that a Court is called upon to consider the material collected during investigation in such details. The situation is, however, forced by the process adopted and order recorded by the trial Court.
65. All these feature, thus assessed in a proper perspective made the impugned order wholly unsustainable and illegal. As indicated at the threshold the entire procedural law has been made topsy turvy and surprisingly major portion is devoted while assessing the police papers in the context of affidavit on the factual aspect. It has become difficult to conceal the element of apparent surprise an to how the learned Magistrate could persuade himself to such a view on facts, though the question of sanction may fall in different category. Exonerating the accused, recording discharge in his favour and correspondingly condemning the witnesses behind their back by adopting the process, which is practically unknown to criminal law, hardly do justice to any judicial forum. To say the least, the entire proceeding and the impact of the impugned order leaves behind lingering and unpleasant taste in every field. The amalgam of all these features with the net result is that the order obviously forfeit its claim to get a label of lawful judicial order. Having regard to all the attendant circumstances including the process adopted and in particular the findings reached by the trial Court unmistakably prejudging the issue and holding almost conclusively against the prosecution even before recording of any evidence. It would be more in the fitness of things to assign the proceeding to some other Court. In fact to continue with the proceeding after having almost finally decided it would cause embarrassment to the learned Magistrate. The result case the legislature in its wisdom, so contend the learned Counsel, have cared out a bunch of offences with reference to the capacity of employees as public servant under section 21 of the Penal Code and all those section do give protection to the officers from harassment of criminal prosecution while at the same time they can be held liable for committing those offences as the bunch consists of offences of illegal gratification, bribe as also of criminal breach of true by the public servant all of which are capable of being committed by the public servant. Therefore, mischief is averted in meticulous manner and if that be so then section 21(12)(b) should not be made to over-ride especially when provisions under the act are special provisions. It is also submitted by the learned Counsel that it is not as if that employees of the Corporation do not became public servant but that their involvement with reference to the limited offences would be material in that discussion. It is also submitted that having regard to object in amending section 21(12) it is strongly indicated that it was essentially found necessary to do so covering the cases of corruption against the public servants since some of the statutes contained no provision while some contained provision which would not embrace that situation and if that be so then the offences of corruption under the Penal Code as also under the Corruption Act are fully taken care of by the legislature by the special provision may be unpleasant but is inescapable and it is the outcome of a situation created by the learned Magistrate himself. In effect, therefore, having regard to all these features it has become unavoidable in the interest of justice to transfer the proceeding to some other Court of competent jurisdiction. Such a course would further the ends of justice and instill a sense of confidence in the mind of litigants, which is absolutely essential and conducive to the worthy system of administration of justice.
66. In order to ward off any confusion, it is made explicit that the observations on factual aspect hereinabove are restricted to this proceeding and those should not be even inferentially equate as final expression of opinion on merits. This is more so as the process pertains essentially to assessment of the papers of investigation including the statements of witnesses before the police, which would pale in the background and would be replaced by substantive evidence on oath of the witnesses at the trial and it is quality of that evidence that would govern the fate of the proceeding. Any more in that behalf would be an exercise in speculation which would not be desirable. The learned Magistrate would have an unfettered discretion to assess and evaluate the evidence and appreciate the same on its own merits as and when it is unfolded at the trial. All the contentions in the armoury of both sides on factual aspects on merits are, therefore, left open. As regards the necessary or otherwise of sanction under section 197 of the Code of Criminal Procedure it is on the basis of a well demarcated structure of the prosecution evidence that would be unfolded at the trial and which is apparent and circumscribed by the papers of investigation that the observations are made about there being no necessity of sanction under section 197 of the Code. However, if the facts change their complexion in any manner or it additional features emerge on the record either through the evidence or through cross-examination or brought out by the defence, which would give rise to a necessity to have reassessment of the question of sanction in the wake of the said new facts then it would be open to the parties to canvass those contentions, the decision of which would lie in the unfettered discretion of the learned trial Magistrate, and would be free to decide that aspect either way in accordance with law. This would to some extent dispel the apprehension expressed by the defence suggesting that the question of sanction may develop from stage to stage depending on the development of the facts. If such a contingency does arise then the defence would not be handicapped and would be at liberty to canvass that point, which would be considered by the learned Magistrate on its merit in every respect. This is more so because it is essentially on the basis of the police statements that the findings are being recorded. As to how much field would be available to the defence to agitate that point can well be left to the unfettered discretion of the learned trial Magistrate. All said and done, in fairness to the parties are also the trial Court, it would not be proper to seal all these aspects, including the one on facts and the other on law, in all the available and relevant fields so that any scope for reconsideration should be completely closed. On the contrary, the assessment in this field flows only out of the material collected during investigation and not the evidence that would be available at the trial and in fact it is the latter form of evidence, which is the only relevant and admissible piece. Consequently it may not be proper to prejudge even vis-a-vis the prospective evidence that would be led at the trial. Consequently, therefore, it would be more in the fitness of things to restrict all the findings and observations hereinabove only to this restricted field before unfolding of substantive evidence at the trial and the counterpart would be to allow the parties to agitate all the relevant features on facts including the involvement of the accused and the nature of acts and the formation of the alleged offences being complete or remaining at the lower level not amounting to an offence as also in law including the question of sanction to prosecute, in the trial once the relevant evidence is led which permissibility would be notwithstanding the observations recorded in the proceedings and thereby it would be within the unfettered discretion of the trial Court to decide all these aspects afresh on their merits. This process would be inescapable and also in consonance with the basic aspect that it is always the substantive evidence at the trial that is relevant governing the fate of all the relevant questions. This would ensure the ends of justice without causing prejudice to either side.
Criminal Revision Application No. 298 of 1984 (Filed by the State)
67. Rule made absolute. The impugned order recorded by the learned trial Magistrate in Criminal Case No. 1753/P of 1982 dated 18th April, 1984 discharging the two respondents herein- original accused Nos. 1 and 3- is set aside.
68. The proceeding of the said criminal case is withdrawn from the file of the learned Magistrate presiding over 37th Court, Esplanade, Bombay. The learned Chief Metropolitan Magistrate, Greater Bombay, is directed to assign the proceeding of this case to any other Court of competent jurisdiction in his discretion.
69. The learned Presiding Magistrate, who would be in charge of this proceeding after case is assigned to him, shall frame charges against all the three accused persons (including the two respondents in this proceeding, who have been discharged) in accordance with law as indicated in the charge-sheet and as suggested by the prosecution all the counts. The learned Magistrate in charge thereafter will proceed with the said case on merits in accordance with law.
Criminal Revision Application No. 243 of 1984 (Filed by the Petitioner)
70. Since the main petition filed by the State of Maharashtra is being allowed and since the same relief is claimed in this proceeding by the witness, no formal orders are necessary as the object has already been achieved.