Final Order 1

Order Details: Order Below EX 1
Pdf Text: CNR No. MHMM18-009663-2024 C. C. NO. 1769/MISC./2024
Rammanohar Bhagwandas Yadav
V/s. Bhausaheb Changdev More & 2
Ors.
ORDER BELOW EXH.1
Read complaint. Perused the documents placed on record.
Heard complainant in person.
2. According to the complainant he is the original
complainant in case pending before the 39th Metropolitan Magistrate,
Court, Vileparle, Mumbai, bearing C. C. No.06/SW/2018. The
complainant received the witness summons for recording his evidence
and accordingly on 21/06/2023 he appeared before the court for
recording his evidence.
3. It is further contended that, the complainant sought a true
copy of his deposition and noticed that, the Metropolitan Magistrate,
has manipulated some facts and deliberately deleted certain facts from
the copy of recorded statement with ulterior motive and to give
unlawful benefit to the respondents of that case and to the State. He
further contented that, he brought to the notice above facts to Ld. A.P.P.
Shri Rupesh Gavkar appearing on behalf of the complainant, but Ld.
A.P.P. Shri Gavkar did nothing and shown his helplessness to the
complainant.
4. Thereafter, the complainant has wrote the letter dated
20/10/2023 to Hon’ble Chief Justice of Bombay High Court. Even on
23/11/2023, the complainant sent the letter to the Hon’ble Chief
Justice, Supreme Court of India for registration of F.I.R. against the
respondent No.1. It is further contended that, the complainant also
made complaint to D.C.P. but no action has been taken. It is further
-- 1 of 8 --
~2~
contended that, previously the complainant has filed C. C. No.
1676/MISC./2024 in respect of same set of facts. But the said case is
came to be dismissed on technical ground. Now the complainant by
mentioning the actual incidents and the particular portion, which has
been alleged to be manipulated by respondent No.1, filed this second
complaint. According to the complainant the respondent No.1 has
manipulated the evidence in C. C. No.06/SW/2018. Therefore, he
constrained to file the present complaint under section 256, 257, 318
(3), 335, 336(3), 337, 340(2), 316 (5), 61 and 3 (5) of The Bharatiya
Nyaya Sanhita, 2023. Lastly, the complainant prayed that, direction be
issued to register the F.I.R. against the respondent No.1.
5. The complainant Rammanohar Bhagwandas Yadav in
person argued that, the previous complaint bearing No.
1676/MISC./2024 came to be rejected on the technical ground. Now he
has filed the fresh complaint on the same set of facts under the sections
of The Bharatiya Nyaya Sanhita, 2023.
6. He submits that, Metropolitan Magistrate, Court No.39 of
Vileparle center, Mumbai, has manipulated his deposition. According to
him the respondent No.1 deliberately deleted certain facts from his
deposition only with ulterior motive to give unlawful benefit to other
respondents of the said case. He further submits that, manipulation of
evidence is not at all part of official duty of respondent No.1. Therefore,
there is no bar for taking cognizance under section 197 of the Code of
Criminal Procedure. In support of his arguments he relied on the case of
Rajib Ranjan & Ors. V/s. R Vijaykumar Criminal Appeal No(S)729-732
of 2010 decided on 14/10/2014, wherein Hon’ble Apex Court discussed
the scope of taking cognizance of the
-- 2 of 8 --
~3~
CNR No. MHMM18-009663-2024 C. C. NO. 1769/MISC./2024
Rammanohar Bhagwandas Yadav
V/s. Bhausaheb Changdev More & 2
Ors.
offences by the Magistrate and the provision of bar under section 197 of
the Code of Criminal Procedure.
7. He further demonstrate to me from the allegations made in
the complaint and from the copy of deposition recorded, at (Exh.-36)
in C. C. No.06/SW/2018 and submits that, the respondent No.1 has not
recorded the version, which has been deposed by him. The said
statements are appeared in the complaint in paragraph No.5.
Particularly, mentioned Portion A to Portion I in the said paragraph.
8. I have gone through the entire record. The copy of
deposition, which has been recorded in C. C. No.06/SW/2018 is filed at
(Exh.-A), which shows that, in the said proceeding the evidence of
complainant came to be recorded on 21/06/2023. It further appears
that, the true copy of the said deposition is prepared on 15/09/2023. It
further shows that, the previous complaint came to be filed on
13/05/2024 and which has been came to be disposed off by order dated
08/07/2024. Thereafter, the present complaint came to be filed on
26/07/2024. The present complaint filed through online mode on
24/07/2024, at around 09.11 p.m.
9. It is to be noted that, in present complaint, what the
alleged actual facts have been deleted by the respondent No.1 are
mentioned. But in view of section 197 of the Code of Criminal
Procedure or 218 of The Bharatiya Nagarik Suraksha Sanhita, 2023 and
under section 3 of the the Protection of Judges Act, it is necessary to see
-- 3 of 8 --
~4~
that, whether the Magistrate can take cognizance of the allegation made
by the complainant.
10. It is to be noted that, the respondent No.1 is the Judicial
Officer, who is working, as the Metropolitan Magistrate, Court No.39,
Vileparle center, Mumbai. Therefore, it is necessary to see that, whether
there is bar for taking cognizance of the complaint made by the
complainant. I would like to quote here the provision of section 197 of
Cr. P. C. as well as section 218 of The Bharatiya Nagarik Suraksha
Sanhita, 2023.
11. Section 197 of the Code of Criminal Procedure provides
that,
when any person who is or was Judge or Magistrate or
a public servant not removable from his office save by
or with the sanction of the Government is accused of
any offence alleged to have been committed by him,
while acting or purporting to act in the discharge of his
official duty, no court shall take cognizance of such
offence, except with the previous sanction – (a) in the
case of person who is employed or as the case may be
was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union,
of the Central Government
(b) in the case of a person who is employed or as the
case may be was at the time of commission of the
alleged offence employed in connection with the affairs
of the State, of the State Government.
-- 4 of 8 --
~5~
CNR No. MHMM18-009663-2024 C. C. NO. 1769/MISC./2024
Rammanohar Bhagwandas Yadav
V/s. Bhausaheb Changdev More & 2
Ors.
12. Further, section 218 of the The Bharatiya Nagarik Suraksha
Sanhita, 2023 is also pari-materia to section 197 of the Code of
Criminal Procedure.
13. I further would like to quote here the section 3 of the
Judges Protection Act, 1985 which provides that,
(1) notwithstanding anything content in any other law
for the time being enforce and subject to the provision
of sub section (2), no court shall entertain or continue
any civil or criminal proceeding against any person,
who was a judge for any act, thing, or word committed,
done or spoken by him, when, or in the course of
acting or purporting to act in the discharge of his
official or judicial duty or function.
(2) nothing in sub section (1) shall debar or affect in
any manner the power of Central Government or the
State Government or the Supreme Court of India or
any High Court or any other authority under any law
for the time being enforce to take such action (whether
by way of civil, criminal or departmental proceeding or
otherwise against any person who is or was a Judge).
14. By taking into consideration the above provisions, I would
like to state here that, the complainant relied on the allegation made in
the complaint in respect of manipulation of evidence in C. C. No.
-- 5 of 8 --
~6~
06/SW/2018. I have gone through the said allegations and the copy of
deposition recorded in C. C. No.06/SW/2018.
15. Now I would like to state here that, the respondent No.1
has recorded the evidence of complainant in C. C. No.06/SW/2018 on
21/06/2023. I have gone through the true copy of said deposition,
wherein it appears that, after completion of cross examination and re-
examination the respondent No.1 has mentioned that, the deposition is
read over and affirmed to be corrected. The said remarks has been
mentioned, as R.O.A.C. The respondent No.1 thereafter, has put his
signature with date.
16. In view of section 80 of the Indian Evidence Act the said
deposition is having presumptive value. Section 80 of the Indian
Evidence Act, provides that,
whenever any document is produced before any court
purporting to a record or a memorandum of evidence or
any part of the evidence, given by a witness in a judicial
proceeding or before any officer authorized by law to
take such evidence or to be a statement or confession
by any prisoner or by a accused person with law and
purporting to be signed by any Judge or Magistrate or
by any such officer as aforesaid, the court shall presume
– that the document is genuine that any statement as to
circumstances under which was taken, purporting to be
made by the person signing it, are true and that such
evidence, statement or confession was duly taken.
17. The copy of deposition (Exh.-A) shows that, the respondent
No.1 after taken down the evidence of the complainant signed the same
-- 6 of 8 --
~7~
CNR No. MHMM18-009663-2024 C. C. NO. 1769/MISC./2024
Rammanohar Bhagwandas Yadav
V/s. Bhausaheb Changdev More & 2
Ors.
and make part of the record. Therefore, the respondent No.1 has
recorded the statement, as per section 274, 275 and 278 of the Code of
Criminal Procedure. It further reveals that, while recording the evidence
of complainant the respondent No.1 adopted the procedure laid down
in Part IV of the Criminal Manual. Further, there is no memorandum of
objection of complainant regarding the alleged manipulation,
mentioned by the respondent No.1, as contemplated in clause (2) of
section 278 of Code of Criminal Procedure.
18. Therefore, it appears that, the respondent No.1 adopted the
procedure for recording evidence of complainant, as laid down in Code
of Criminal Procedure, as well as in Criminal Manual. Therefore, it
appears that, the respondent No.1 has recorded the evidence of
complainant, as part and parcel of his duty. Further, on the same day
the complainant has not made complaint in respect of alleged
manipulation in evidence and after 11 months he had filed the
complaint before this court. Therefore, I do not inspire any confidence
in the allegation made by the complainant.
19. So far as, the manipulation and deletion of certain facts, as
alleged by the complainant is concerned, I would like to state here that,
the respondent No.1, while performing his judicial duty has recorded
the evidence of complainant in C. C. No.06/SW/2018, which is having
the presumptive value under the Indian Evidence Act. Therefore, in
view of provisions under section 197 of Code of Criminal Procedure
(now section 218 of the The Bharatiya Nagarik Suraksha Sanhita, 2023)
-- 7 of 8 --
~8~
and in view of section 3 of the Judges Protection Act, 1985, the court
cannot take cognizance of the said act of the respondent No.1 and
hence, the complaint is barred under section 197 of Code of Criminal
Procedure (now section 218 of the The Bharatiya Nagarik Suraksha
Sanhita, 2023) r/w section 3 of the Judges Protection Act, 1985.
Therefore, the complaint deserved to be dismissed.
20. So far as, citation cited by the complainant Rajib Ranjan &
Ors. V/s. R Vijaykumar Criminal Appeal No(S)729-732 of 2010 decided
on 14/10/2014
supra is concerned the facts of the cited case and
present case are altogether different to each other. Therefore, the ratio
laid down in above
supra case is of no useful to the complainant.
Considering all above aspects, I proceed to pass following order.
ORDER
1 The complaint is dismissed. The proceeding is closed.
Mumbai.
Date : 20/08/2024.
SRD.
Sd/-
(A. B. Jadhav)
Metropolitan/Judicial Magistrate,
(First Class) 71st Court, Bandra, Mumbai.
Dictated on :- 20/08/2024.
Transcribed on :- 20/08/2024.
Checked on :- 20/08/2024.
Signed on :- 20/08/2024.
SRD
-- 8 of 8 --