Presented on : 18.04.2012 Registered on : 18.04.2012 Decided on : 11.05.

2012 Duration: YS - MS -7 DS 23

IN THE COURT OF THE PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH GOA, PANAJI. (Before Kum. Nutan D. Sardessai, Sessions Judge, Panaji)

CRIMINAL MISC. APPLICATION NO.35 OF 2012.

1. Kashinath Shetye, major, Indian National, r/o Babino Building, Alto Fondvem, Ribandar Goa. 2. Ketan Govekar, major, Indian National, r/o Wadji Building, St. Inez, Panaji Goa.

Intervenors

Ramnath Mahadev Sawant

Applicant

V/s

[[

[[,[..r

[',[m[11

The Police Inspector, Pernem Police Station, Pernem Goa.

Respondents

The intervenors no.1 and 2 present in person at the time of the hearing and the intervenor no.2 present at the time of the order. Ld. Adv. P. Kamat for the applicant present at the time of the hearing and Adv. Ms. R. Pednekar at the time of the order. Ld. P.P. S. Monteiro for the State present at the time of the hearing and order.

ORDER ( Delivered on this the 1 lth day of the month of May of the year 2012).

By the present order i am disposing off the application at Exh.1 for intervention in the anticipatory bail application of Ramnath Sawant (Sawant for short hereinafter) filed by the present applicants.

2.

It was their case that they were the original

Complainants who had moved the Judicial Magistrate First Class at Pernem (J.M.F.C. for short hereinafter) seeking direction for registration of an FIR and proper investigation in the commission of the grave and serious offences under the I.P.C. including the misappropriation of public funds. The said Sawant had moved for anticipatory bail pending their application. The case was registered at the Pernem Police

Station vide the Crime no.113/2009 under Sections 406 r/w 34 I.P.C. but no investigation was done and the application under Section 156(3) moved by them. The applicants also moved the contempt petition registered as 66/2011 and now pending before the IM.F.C. Pernem for disposal.

The issue of the misappropriation of public funds

in Goa is on the rise, a threat of immeasurable gravity, threatening the future of the Government and the Society and much more so when an educational establishment, teachers and officials of the Police force of the State are inextricably entangled in corruption to protect them to facilitate their functioning. The intervenors are receiving threats periodically on phone to withdraw the application and even from the Editor of Lokmat Shri Raju Nayak. They have been placed under private surveillance and found being constantly followed wherever they go. The powerful and politically connected persons of the School Trust/Society and the Editor of Lokmat Shri Raju Nayak either flex their muscle to instill fear in their minds or otherwise trying to entice or induce them with promises of rewards in the event they comply in order to scuttle the legal proceedings.

4.

The authorities concerned for extraneous

reasons and/or for illegal benefit/gratification from the

proceeds are turning a blind eye to the illegalities and also to their Complaint. The Police are pressurized into inaction which is apparent from their refusal to act since 2009 and hesitating to arrest powerful politicians who are in fact the primary accused in the matter. They have interest in the subject matter of the bail and are entitled to interfere and therefore seek their intervention. It was supported by the copies of the reply filed by the State in 156(3) Cr.P.C. application of the State and also of the said Raju Nayak.

5.

Upon notice, Sawant opposed the application

vide his reply at Exh.2 on the premise that it was not maintainable in law, was an abuse of the process of law and liable for dismissal with exemplary costs. They had no locus standi to file the application nor are they informants or the Complainants in the Crime being registered by the Asst. Director of Education, North Zone, Mapusa. There are no allegations against Sawant in the entire application for impleadment but made against Shri Patil and Shri Raju Nayak. The applicants are busy-bodies who have no authority to file the 2 nd FIR. The intervenors are issues which have no therefore their application unnecessarily trying to raise bearing on the case and had to be dismissed.

6.

The l st applicant came to be heard in person

who reiterated the contents of his application and otherwise relied upon the judgment of the Bombay High Court at Goa in Kashinath Shetye & Ors. V/s Shri Shaikh Faisal & Ors. {order dt.02.12.20011 in Criminal Application (Main) no.214/2011} and Vinay Poddar V/s The State of Maharashtra & Anr. {2009 ALL MR (Cri) 687} and Ld. Adv. P. Kamat on behalf of the applicant opposed the application canvassing the grounds urged in the reply and Ld. RP. S. Monteiro on behalf of the respondents. i have also perused the accompanying papers including the say filed by the respondents before the J.M.F.C., Pernem from which it is apparent that a Complaint was initially filed by Dhore, Asst. Director of Education, North Education Zone, Mapusa against the said Sawant and thereupon an offence was registered vide the Crime no.113/2009 under Sections 406 r/w 34 I.P.C.

7.

It is equally borne out that the present

intervenors had filed the Complaint on 05.05.2011 requesting to register an offence also under Sections,7, 8, 9, 10,11, 12 and 13 of the Prevention of Corruption Act (Act for short hereinafter) and under Sections 409, 416, 417, 418, 419, 420, 468, 471 and 120-B of I.P.C. against the Chairman, Manager, President, resident Headmaster of

the Society and others. No further offence was apparently registered in view of the earlier offence vide the Crime no.113/2009 registered at the P.S. and informed the intervenors precipitating their application under Section 156 (3) Cr.P.C. before the J.M.F.C., Pernem. No doubt, Sawant is not a party to those proceedings but nonetheless associated with the institution and an ex-managing Committee member of Shri Durga English High School where the alleged transaction took place.

8.

The say filed by the respondents to the bail

application of Sawant opposing the same is also indicative of the role purportedly played by him and his involvement in the Crime no.113/2009 under Section 406 r/w 34 I.P.C. amongst others. There appears force in the intervenors' contention that the investigation in that case was being scuttled when in fact they had lodged a separate Complaint at the RS. making out more offence but no offence was registered and on the premise that an offence was earlier registered on the Complaint of Dhore, Asst. Director of Education, North Education Zone, Mapusa.

9.

In

Vinay Poddar V/s The State of

Maharashtra & Anr. {2009 ALL MR (Cri) 687},

the

+".s

rs C s,

1:

),'

( s

appellant had filed an application for anticipatory bail under Section 438 Cr.P.C. before the Sessions Court where interim protection was granted and the main application was pending hearing. The original complainant appeared before the Sessions Court and prayed for a right of audience in the anticipatory bail application. The applicant had filed the miscellaneous application which came to be rejected giving rise to the petition before the High Court. The Learned Single Judge considered the Apex Court judgment in J.K. International V/s State (Govt. of NCT of Delhi) & Ors. {2001 SCC Criminal 547} and sections 301 and 302 Cr.P.C.

10.

In Vinay Poddar (supra) the Learned Single

took note of the observations of the Apex Court in Bhagwant Singh V/s Commissioner of Police & Anr. {AIR 1985 SC 1285} that the informant who had lodged the FIR was not entitled to a notice from the Magistrate but could appear and make his submissions. The Learned Single Judge was equally seized of the judgment in P.S. Saravanabhavanandam & Anr. V/s S. Murugaiyyan & Anr. {1986 Cr.L.J.1540} which held that there was no provision in the Cr. P.C. which enabled a party to get himself impleaded in the proceedings before the criminal Court and also the judgment of

the Apex Court not recognizing the right of the first informant or the complainant to challenge the order granting bail. Ultimately, Vinay Poddar (supra) held that the first informant would be entitled to be heard before passing an order on the application for anticipatory bail and dismissed the petition.

11.

In

Kashinath Shetye

(supra), the Learned

Single Judge of the Bombay High Court at Goa dealt with the applications under Sections 439(2) and 482 of Cr.P.C. in which the applicants had challenged the Order passed by the Special Judge, North Goa at Panaji dt.09.11.2011 rejecting their application for intervention in an application for bail in anticipation of arrest. They had filed an application under Section 156(3) Cr.P.C. before the J.M.F.C., Pernem seeking registration of the offences under various Sections of I.P.C. and others and the Learned J.M.F.C., Pernem directed the registration of the FIR. Consequent thereto the statement of Faizal i.e. the respondent no.1 came to be recorded who apprehending his arrest filed an anticipatory bail application on 23.09.2011 and followed by the applicants' application for intervention.

12.

In Kashinath Shetye (supra), the Special Judge

irlInver .,W

held that the intervenors strictly speaking had nothing specific to do to assist the Court in appreciating the case, that their intervention was not justified and dismissed the application. The applicants sought to rely in Vinay Poddar (supra) canvassing' that the order had to be set aside as they were entitled to be heard. The ,Learned Single Judge considered the judgment in Vinay Poddar (supra), held that the Special Judge Was'obliged to hear the applicants at the time of hearing the application under Section 438 Cr.P.C., set aside the order of the Special Judge and allowed
#

the intervenors' application. The Judgments in Vinay Poddar and

Kashinath

Shetye (supra) clearly substantiate the contentions of the

intervenors that their intervention is imminent looking to the pace of the investigation and their role to set the law in motion. i therefore allow the application and permit them to intervene in the proceedings.

Panaji.

f
Dated:11.05.2012.
Sardes ai) (Nutan Sessions Judge, Panaji.

%rp.

0 0,0

P ly Pr00

00

00