Full Judgment
1. The petitioner, Mr. Sudhakar ShankarraoSuradkar, Special Inspector General of Police,Aurangabad Range, Aurangabad, has moved this writpetition against the four respondents, includingrespondent No. 3, Mr. U. D. Joshi, SpecialInspector General of Police, S.C.R.B., C.I.D.(Crime), M.S., Pune, which is styled as under Articles14, 21, 215 and 227 of the Constitution of India andSection 397 read with 401 and 482 of the CriminalProcedure Code, but necessarily aimed against theimpugned order dated 10th April 2001 passed by theJudicial Magistrate, First Class, (A.C.) Court, Pune,wherein he accepted the report filed by InvestigatingOfficer Mr. R. B. Korde, Additional Superintendentof Police, C.I.D. (Crime), M.S., Pune under Section 3(1)(viii) of the Scheduled Caste/Scheduled Tribe(Prevention of Atrocities) Act, 1989 (hereinafterreferred to as the said Special Act), and granted therequest for sanction of C Summary in respect of thecomplaint filed by the petitioner under the saidSpecial Act against respondent No. 3. It may also benoted that initially the petitioner had made theAdditional Public Prosecutor and Legal Advisor, C.I.D.(Crime), M.S., Pune as well as the JudicialMagistrate, First Class, (A.C) Court, Pune, who haspassed the impugned order as parties to theproceeding, however, subsequently pending thispetition, the petitioner did not press the petitionagainst the said respondents and their names came tobe deleted by the order of this Court dated 23rd July2001
It may also be pointed out that the petitionerhas made as many as 10 different prayers in thispetition, including request for proceeding againstcertain authorities for contempt of Court and issuanceof directions to the Additional Director General ofPolice, etc., however, I must note at this junctureitself that the tenor of the petition clearly showsthat the real grievance of the petitioner is inrespect of the order passed by the JudicialMagistrate, First Class, (A.C.) Court, Pune, dated10th April 2001 granting C Summary in his complaint,and request for expunging certain observations made bythe learned Judicial Magistrate, First Class (A.C.)Court, Pune, in the impugned order.
2. The facts giving rise to the petition, inbrief, are thus :-
One Asif Patel of Kashimira in April 1991filed cross a complaint against one Hitendra Thakurand both the cross complaints were registered asC.R.Nos. 43 and 44 of 1991. When these offences wereregistered the provisions of TADA were applied to thesaid Asif Patel and other co-accused in C.R.No. 43 of1991, respondent No. 3 was not the D.G.I., KonkanRange. Members of the gang of the said Asif Patel inthe said crime had filed various different writpetitions before the High Court for quashing aside theprosecution under the provisions of TADA. In one ofthe earliest writ petition (No. 598 of 1991 and 731of 1991) decided by the Division Bench of this Court,and which were filed by some of the co-accused otherthan the said Asif Patel, the petition was allowed andthe prosecution under TADA against the petitioner inthat petition was quashed. However, subsequently twoother writ petitions (886 of 1991 and 237 of 1992)came to be decided on 26th August 1991 and 26thFebruary 1992, in which other gang members of the saidAsif Patel had challenged the invocation of theprovisions of TADA came to be dismissed on merits evenafter referring to the earlier orders passed by theDivision Bench of this Court. These judgmentsdismissing the petitions were not further challengedand they became the final and conclusive.
Respondent No. 3 took over charge of theD.I.G., Konkan Range on 19th December 1991 and in hisofficial capacity accorded sanction under Section 20-Aof TADA for filing a charge-sheet in C.R.No. 43 of1991 against the said Asif Patel and other co-accusedin the crime. On this background the presentpetitioner, who by the month of June 1993, had takenover as the Deputy Inspector General of Police filedan affidavit before the Designated Court on 25thNovember 1993 in Special Case No. 5 of 1991 filed byAsif Patel stating that the provisions of TADA couldnot be invoked against the said Asif Patel and otheraccused and the trial be transferred to the RegularCourt of Sessions under Section 18 of TADA. On thebackground of these facts, respondent No. 3 on 24thFebruary 1994 filed an application for the detailedreasons stated therein drawing the attention of theDesignated Court that in the affidavit of the presentpetitioner Suradkar, he had suppressed a very materialand significant fact of the two writ petitions beingdismissed by the High Court raising a challenge to theapplicability of the provisions of TADA in respect ofthe case registered against Asif Patel and otherco-accused in that case.
The said application (Criminal Misc.Application No. 20 of 1994) in Special Case No. 5 of1992 was filed much before the order of the High Courtdated 16th February 1995 by which the High Court haddismissed the application of one Dashrath Kotkar, apolice officer against whom steps were being takenrelying on the said order, the Designated Court byorder dated 30th August 1996 rejected the applicationfiled by respondent No. 3 with order to the effectthat the applicant was absent since long. However thematter was pertaining to Contempt of Court and,therefore, it was being decided on merits of the caseitself. It may also be noted that the application ofrespondent No. 3 (Criminal Misc. Application No. 20of 1994) was lodged much before Writ Petition No.1270 of 1994 was filed. It is seen from the recordthat subsequent to the order of the High Court dated16th February 1995 in the said writ petition,respondent No. 3 did not prosecute the saidapplication and was absent on the day the order waspassed by the Designated Court.
On the background of these facts the presentpetitioner filed his F.I.R. dated 14th September 1996against respondent No. 3 alleging that that he hadinstituted false, vexatious and malicious legalproceeding before TADA Court, Pune, which was CriminalMisc. Application No. 20 of 1994. It was furtheralleged that it was decided on 30th August 1996 by TADA Court and it was rejected and, therefore,respondent No. 3 had committed the offence punishableunder Section 3(1)(viii) of the said Special Act. Onthe basis of this complaint C.R.No. 322 of 1996 wasregistered and investigation was conducted under therelevant law and after due investigation A Summarywas recommended. However, it was challenged in theCourt of law and by order dated 16th October 1998recommendation regarding grant of A Summary reportsubmitted by Deccan Gymkhana Police Station, Pune inC.R.No. 322 of 1996 was rejected and report wasreturned for further investigation and taking properrecourse and steps according to law in view of theobservations made in the order passed by the learnedAdditional Sessions Judge, Pune.
Thereupon respondent No. 4 conducted theinvestigation and came to the conclusion that it was afit case to recommend C Summary and accordingly maderequest dated 22nd November 1999 to the Court of law.In the said proceeding, the learned JudicialMagistrate, First Class (A.C.) Court, Pune heard theState as well as the complainant (present petitioner)exhaustively and came to the conclusion thatrecommendation for C Summary was justified in lawand accordingly the report was accepted and CSummary was sanctioned by order dated 10th April 2001.Hence, the present petition.
3. I have heard the petitioner in person as wellas the learned Counsel for respondent No. 3 and otherrespondents, including the State.
At the outset, I must note that the petitionerhas tried to make out a mountain out of the issueinvolved, however, he has utterly failed in supportinghis allegations on legal aspects as well as factsinvolved. He has also failed to make out even aprima-facie case under the provisions of the saidSpecial Act and thereby justifying his challenge tothe impugned order passed by the Judicial Magistrate,First Class (A.C.) Court, Pune.
Admittedly, the petitioner Suradkar is amember of the Scheduled Caste. Admittedly, againrespondent No. 3 Joshi is not a member of theScheduled Caste or Tribe. Section 3(1)(viii) of thesaid Special Act contemplates that 'Whoever, not beinga member of a Scheduled Caste or a Scheduled Tribe,institutes false, malicious or vexatious suit orcriminal or other legal proceedings against a memberof a Scheduled Caste or a Scheduled Tribe - shall bepunishable under the said law.' Therefore, the smallbut subtle question which arises for my considerationin this case is whether the filing of an application(Criminal Misc. Application No. 20 of 1994) inSpecial Case No. 5 of 1992, on 24th February 1994, byrespondent No. 3 for taking action against thepetitioner, Mr. Suradkar amounted to institution of afalse, malicious or vexatious legal proceeding. Inorder to appreciate this aspect in proper perspective,we need to refer to certain factual aspects.
Two writ petitions namely No. 598 of 1998 and731 of 1991 filed by gangsters involved in C.R.No.431 of 1991 were considered and allowed andconsequently their prosecution under TADA in thatpetition was quashed. However, subsequent two writpetitions before this Court namely 886 of 1991 and 237of 1992 which were decided on 26th August 1991 and on26rtrh February 1992 were dismissed on merits evenafter reference was made to the earlier order passedby the Division Bench of this Court. In the order onWrit Petition No. 886 of 1991 the Division Bench ofthis Court has observed thus :-
'In support of this writ petition greatreliance is place on judgment of the DivisionBench of this Court in Writ Petition No. 598of 1991 with Writ Petition No. 731 of 1991.However, the said judgments are based onconcession by the learned Additional PublicProsecutor. It has been pointed out in thiscase that TADA Act will be very much attractedso far as the present petitioners areconcerned......'
Therefore, it is apparent that earlier two writpetitions were allowed merely on concession given bythe then Public Prosecutor and on that basis theapplication of TADA was set aside. However, insubsequent two writ petitions, it was held thatprovisions of TADA were very much attracted the casesand, therefore, those provisions sere applicable tothe impugned cases.
4. In spite of this aspect, it is a fact that thepetitioner Mr. Suradkar, after he took over thecharge of his office, in his affidavit did not referto those two decisions of the High Court, but referredonly to the one which was not with regard to thealleged gangster Asif Patel. Therefore, it isobvious, what respondent No. 3 has done by hisapplication dated 24th February 1994 to the TADA Courtis to bring this basic fact to the notice of theDesignated Court. Moreover, it is also pertinent tonote that after the order of the High Court dated 16thFebruary 1995, he did not pursue the proceeding soughtto be initiated by him. Mr. Mundargi, the learnedCounsel for respondent No. 3 urged that respondentNo. 3 bonafide and honestly felt that all materialfacts should be disclosed to the Court before thedecision on the issue was taken. In my consideredview, this argument has considerable force, especiallyif the facts and documents are taken into account.
5. It was further urged on behalf of respondentNo. 3 that when the petitioner, Mr. Suradkar madeaffidavit before the Designated Court, he did notmention the order of subsequent two writ petitionsdeliberately and thereby suppressed the material factsfrom the Court and hence it amounted to misleading theCourt. This argument was sought to be countered by Mr. Suradkar with submission that failure to mentionthe said act cannot amount to suppression. It wasalso urged by him that the affidavit in question wasdrafted by a prosecutor and hence it was not his faultat all. I prefer to disagree with this submission.The petitioner is a top ranking police officer of theState and just cannot hide behind the lame excuse thatthe affidavit in question was drafted by a prosecutor,who might have skipped the vital fact. It cannot beoverlooked that Mr. Suradkar was fully aware of thefact that he was making affidavit before the Court oflaw making submission which would affect the course ofjustice in relation to an alleged gangster, and infact it so happened that on the basis of his affidavitthe provision of TADA was not made applicable to thecase. As pointed out on behalf of respondent No. 3,one cannot speculate what would have happened to thatparticular case if all the material facts, includingthe order of the Division Bench of this Court inearlier two writ petitions, was brought to the noticeof TADA Court at the right time by Mr. Suradkar.It was further pointed out on behalf ofrespondent No. 3 that the real test in order toinvoke the provisions of Section 3(1)(viii) of thesaid Special Act, would be akin to the test requiredto be satisfied for founding a proceeding formalicious prosecution. It is needless to state thatfour cumulative tests have to be satisfied for basinga cause of action for malicious prosecution namely (i)the proceeding must have been instituted and continuedby the defendant, (ii) the said proceeding should havebeen terminated in favour of the plaintiff, (iv) theaccused must have acted without reasonable andprobable cause, and (iv) the proceedings wereinstituted by him maliciously. Therefore, consideringthe admitted basic facts on the touch stone of thesaid four criteria and even one is absent, theproceeding under Section 3(1)(viii) of the saidSpecial Act cannot lie. It was further urged thateven if the proceedings are malicious, but have beeninstituted for reasonable and probable cause still nooffence is made out. I find considerable substance inthis submission. The respondent in this case was notsupposed or required to believe that Mr. Suradkar wasguilty of contempt, it being enough for him that therewas reasonable and probable cause for making theapplication to the TADA Court bringing to its noticethe material facts. As noted earlier, Mr. Suradkaradmittedly did not refer to the two judgments of theDivision Bench of the High Court which were vital tothe issue involved which in the honest opinion ofrespondent No.3 had a direct impact on the issue. Thequestion being in the province of serious debate itcould never be said that the application moved byrespondent No. 3 could not have been moved by anyreasonable person.
Mr. Mundargi, the learned Counsel forrespondent No. 3 further urged as to whether on theadmitted facts it could be said that the applicationwas moved by respondent No. 3 for wrongful motivenamely maliciously. The clear position in law ismalice and absence of reasonable and probable causemust unite in order to produce a liability eithercriminal or civil. I agree with this proposition. Itis well settled law that so long as legal process isbonafide and honestly used for its proper purpose merenegligence or error of judgment or want of soundjudgment in the use of it creates no liabilitywhatsoever. Conversely, if admittedly there arereasonable grounds for instituting a proceeding, noimpropriety of motive on the part of the personinstituting these proceedings is in itself any groundof liability. Therefore, it is necessary to bear inmind a clear legal distinction between honesty ofbelief and honesty of motive, the former is relevantto the question of reasonable or probable cause, thelatter to the question of malice. If the matter wasso oversimplified as contemplated by the presentpetitioner every acquitted accused for whatever reasoncan sue the police officer and the State forprosecuting him. It is pertinent to note that the` Court order dated 30th August 1996 does not showthat the application of respondent No. 3 was eitherfalse, vexatious of malicious nor does it state thatrespondent No.3 had no ground or basis to file it. Inview of this position, I am of the view that in theinstant case no prima-facie grounds exist to proceedunder the provision of Section 3(1)(viii) of the saidSpecial Act.
The perusal of the impugned order shows thatit is exhaustively based upon admitted as well asevident facts. It is also found to be just, legal andproper and, therefore, the view taken by the learnedJudicial Magistrate, First Class (A.C.) Court, Punewhile accepting C Summary report in the present casecannot be interfered with and thus it has to beconfirmed.
6. This aspect takes us to another prayer made bythe petitioner in order to expunge the observationmade by the learned Judicial Magistrate in the courseof his impugned order. It reads thus :
'Therefore in my opinion submission ofcomplainant is not trustworthy'.
Mr. Suradkar took exception to the term 'trustworthy'with submission that it reflected on his integrity.
On perusal of the contents of para 30 of the impugnedorder, wherein this observation is made, it is seenthat it is made while making comments on the argumentsadvanced by the petitioner that he had filed hisaffidavit which was drafted by Government Pleader. Inother words, the petitioner wanted to submit that hewas not aware of the submission made in his affidavitwhich was drafted by the Government Pleader, whichaspect is not accepted by the learned JudicialMagistrate. In this regard I would like to note thatinstead of term 'trustworthy', the proper term couldhave been used as 'acceptable'. In other words, thesubmission of the complainant therein was notacceptable to the Judicial Magistrate. Hence, I holdthat the said observation made by the JudicialMagistrate with special reference to the term'trustworthy' is expunged from the impugned order.
Remaining prayers made by the petitioner aremainly pertaining to the request for action under theContempt of Court Act. Admittedly, he has not movedthe Court specifically for that purpose at therelevant time, but has thought it fit to make thispetition multifarious in that regard. Moreover, I donot find any element of contempt committed either byrespondent No. 3 or any other authorities as allegedon the basis of material which is put forth in thispetition and, therefore, I hold that the said otherprayers also deserve to be rejected.
7. Before parting, I must observe that facts andcircumstances which have surfaced on record in thispetition have shown that both the contesting partiesherein, who are top ranking police officers of theState, namely, Special Inspectors General of Police,are at loggerheads for years together which is not atall a happy state of affairs, nor litigation of suchtype between them is very happy example to theirsubordinates as it definitely sends wrong signal inthe rank and file of the police machinery of theState.
8. Hence, the writ petition stands dismissed.The order of the Judicial Magistrate, First Class(A.C.) Court, Pune, dated 10th April 2001 approvingthe recommendation of C Summary and the complaintfiled by the petitioner is hereby confirmed.
The observations/strictures in para 30 of theimpugned order to the effect 'the submission of thecomplainant is not trustworthy' is hereby expunged.