Final Order 1

Order Details: Order of Dismissal
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
66TH COURT, ANDHERI, MUMBAI.
C.C. No. : 505/SW/2018
ORDER BELOW (EXH.1 )
Read the complaint, affidavit, documents filed
alongwith the complaint. Heard the complainant in person, at
length. He relied upon the decisions of Avinash Trimbakrao
Dhondage V/s. 1) The State of Maharashtra, 2) Datta S/o.
Tulshiram Shembale, Criminal Appeal No.246 of 2017, decided
on 17/11/2017, Punjab State Warehousing Corp. V/s. Bhushan
Chander & Anr., Criminal Appeal No.159 of 2016, decided on
29/06/2016, Authorized Officer State Bank of Travancore and
Another V/s. Mathew K. C., Civil Appeal No.1281 of 2018,
decided on 30/01/2018, State of U. P. V/s. O. P. Sharma, JT
1996(2), 488 1996 SCALE (2) 356, decided on 06/02/1996,
Santosh Kumari V/s. State of U. P., 2007 CRI. L. J. 3869,
decided on 01/06/2007, Dharmeshbhai Vasudevbhai & Ors. V/s.
State of Gujarat & Ors., Criminal Appeal No.914 of 2009,
decided on 05/05/2009. I have gone through decisions cited by
the complainant.
2. It appears that, complainant has made this complaint
for issuance of directions to Sr. P.I. of Airport police station for
investigating case U/Sec. 156 (3) of Criminal Procedure Code.
-- 1 of 7 --
~2~
3. He stated and argued that, on the approval of the
then CMD, Arvind Jadhav, a Promotion Panel consisting of Mr.
Amod Sharma, DirectorPersonnel a Capt. Deepak Anand
Executive Director, Operations and Mr. Rajeev Kapur, Executive
DirectorEngineering, was constituted vide letter Ref. No.
DO/06/179 dtd.18/10/2006, for selection to the post of GM
Operations and the said Panel shortlisted two candidates i.e. 1)
Capt. Rakesh Anand, 2) Capt. A. S. Soman.
4. He further argued and stated that, this Promotional
panel and the selection report dtd.13/12/2006, was contrary to
the Rules and hence, illegal abinitio, and a denovo Promotional
panel was reconstituted vide order No. DO/06/272
dtd.21/12/2006.
5. He further argued and stated that, the SC/ST member
fo the above Panel Mr. R. N. Kanade had passed away without
finalizing the said report and hence, there was no finality in the
selection procedure. Surprisingly, the other two panelists vide
their letter No. 426(1)CON/4570 dtd.06/08/2007, without
conducting an proper penal report dtd.13/12/2006, which itself
was illegal abinitio and an fraud committed by them on the
exchequer.
-- 2 of 7 --
C.C. No. : 505/SW/2018 ~3~
6. He further argued and stated that, the CMD Mr.
Arvind Jadhav had made the following noting on the said letter
426(1) CON/4570 dtd. 06/08/2007. He has expired. It may
have to be a denovo promotion exercise now.
7. He further argued and stated that, consequent to the
above noting, a fresh Promotional panel was constituted vide an
order dtd. 20/11/2007. The panel consisted of Mr. Valerian
Ferreira, Then Executive DirectorPersonnel, Mr. K. M. Unni,
SBUHeadMRO (Airframe), Air India and Mr. Shyam Lal,
Executive DirectorRB, Air India.
8. He further argued and stated that, the said promotion
without conducting the said interviews of all the candidates
shortlisted for the selection procedure has illegally
recommended that based on the earlier two panels report, which
were illegal, they are also relying on the same and promoting
the two earlier candidates i.e. 1) Capt. Rakesh Anand and 2)
Capt. A. S. Soman.
9. He further argued and stated that, they have also
sought to recommend that they be deemed to be selected with
effect from 12/08/2007, which was also outside the scope of the
promotional panel. All the above acts are evidence that they
-- 3 of 7 --
~4~
have conspired to select only two candidates from the inception
and amounts to fraud perpetuated on the exchequer.
10. He further argued and stated that, from the above
acts it is abundantly clear that there was a criminal conspiracy
from the beginning to give Capt. A. S. Soman the promotion by
hook or crook and thereby give him the undue advantage of the
pecuniary gains that come with the said promotion and also the
consequent benefits that he is continuing to enjoy till date.
Hence, these are a continuing offence U/Sec. 405, 409, 415,
120, 468, 471 and 120 (B) of the Indian Penal Code, 1860.
11. He further argued and stated that, Capt. A. S. Soman,
in another issue was found guilty of irregularities committed in
the selection process by the CVC itself vide its letter
011/TCA/053 dtd.26/07/2012, which itself is an criminal act
and the same need to investigated.
12. He further argued and stated that, Capt. A. S. Soman,
in another issue was found guilty of irregularities committed in
the selection process by the CVC itself vide its letter
011/TCA/053261576 dtd.25/09/2014, which itself is an
criminal act and the same need to investigate too.
-- 4 of 7 --
C.C. No. : 505/SW/2018 ~5~
13. He further argued and stated that, in accordance with
the law as observed in Avinash Trimbakrao Dhondage V/s. State
of Maharashtra, in criminal application No. 246 of 2017, in
paragraph No. 15, which reads as under,
However, suffice for the purpose to note that since
the applicants are seeking quashment of the
impugned order and the F.I.R. the scope of the
present inquiry is very limited and disputed facts
which require a minute scrutiny cannot be gone
into...... Therefore, merely because the
department has taken some steps on the
administrative side that would not per se absolve
the persons if the acts would constitute the
offences punishable under law.
14. He further relied upon the decision of Lalitakumari
V/s. Government of U. P., 2013 (4) KLT 632 (SC), wherein the
Honourable Supreme Court held that if the information
disclosed commission of cognizable offence, then it is mandatory
on the part of the police officer to register F.I.R. in view of
section 154 of Indian Penal Code. He further argued that, when
the act done by public servant in discharge his official duties do
not come within the purview of his official duties then sanction
under section 197 of Criminal Procedure Code is not required.
15. If consider the submission made by complainant in
person, it appears that it is his grievance as there was no SC/ST
representative and thereafter due to demise of one of the
-- 5 of 7 --
~6~
member of the panel which was reconstituted the panel report
could not be finalized. Latter on, fresh promotion panel was
reconstituted by ordered dtd. 20/02/2007 and said panel
without conducting the interview recommended two persons
suitable for the promotion and that to from 12/08/2007. He
argued that, when the CMD himself made noting with regard to
denovo promotion exercise now, it was obligatory on the part of
the reconstituted panel to conduct the fresh interview, without
conducting the same they have recommended the names of the
two persons for the promotion. The act of the members of the
constitute committee is illegal, which is nothing but an
cognizable offence, therefore, prayed for investigation U/Sec.
156 (3) of Criminal Procedure Code.
16. If considered submission made by the complainant in
person, gone through contents of complaint, documents placed
on record it appears that, the alleged act of the constituted
committee, who recommended the names of suitable candidates
do not come within the ambit of illegal act. At the most if
considered the argument of complainant in person it comes
within the purview of procedural irregularities and same can be
rectified by challenging the decision of the reconstituted
committee by exhausting legal remedy before appropriate
forum. The procedural irregularities cannot be converted into a
-- 6 of 7 --
C.C. No. : 505/SW/2018 ~7~
illegality, as the same can be rectified. The contents of
complaint nowhere disclosed the commission of the cognizable
offence. In these circumstances, the cited supra decisions filed
by complainant are of no useful to him, as the facts and
circumstances of present case in hand and cited supra decisions
do not match with each other, therefore, the prayer made by the
complainant cannot be considered, same is required to be
rejected. Hence, it is rejected and the complaint is hereby
dismissed.
Mumbai.
Dated : 26/02/2019.
SRD.
Sd/
(R. M. Nerlikar)
Metropolitan Magistrate,
66th Court, Andheri, Mumbai.
-- 7 of 7 --