Narayan W/O Wamanrao Joshi vs State Of Maharashtra, Through ...
2016 Latest Caselaw 1279 Bom

     Judgment                                           1                                  wp674.15.odt




                                                                                     
                   
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR.




                                                            
                        CRIMINAL WRIT PETITION NO.674  OF 2015




                                                           
     Narayan S/o. Wamanrao Joshi, 




                                             
     aged about 56 years, Occupation : Joint
     Director, Maharashtra Prathamik Shikshan 
                             
     Parishad, Mumbai, presently posted at 
     Mumbai. 
                                                                          ....  PETITIONER.
                            
                                        //  VERSUS //

     State of Maharashtra,
     Through Police Station, 
      


     Adyal, Distt. Bhandara. 
                                                     .... RESPONDENT
                                                                    . 
   



      ______________________________________________________________
     Shri N.D.Khamborkar, Advocate for Petitioner.  
     Shri R.S.Nayak, A.P. P. for Respondent.  
     ______________________________________________________________





                                  CORAM : Z.A.HAQ, J.

DATED : APRIL 06, 2016.

ORAL JUDGMENT :

1. Heard learned advocates for the respective parties.

2. RULE. Rule made returnable forthwith.

Judgment 2 wp674.15.odt

3. The petitioner has filed this petition challenging the order

passed by the learned Magistrate on 20th February, 2015 rejecting the

application (Exh.63) filed by the petitioner praying that he be

discharged from the prosecution for the offences punishable under

Sections 120-B, 200, 409, 420, 468, 471, 477-A, 201 and 511 and

Section 34 of the Indian Penal Code. The petitioner has also

challenged the order passed by the Sessions Court dismissing the

revision filed by the petitioner challenging the above order.

4. On complaint filed by Vijay Gupta, the learned Magistrate

directed investigation and after final report came to be submitted,

directed registration of the First Information Report against 9 persons

(including the petitioner). The petitioner was working as Education

Officer (Secondary), Zilla Parishad, Bhandara at the time of

commission of the alleged offence. The petitioner had filed the

application (Exh.63) before the Magistrate contending that the

petitioner cannot be prosecuted without sanction by the State

Government as required by Section 197 of the Code of Criminal

Procedure and as there was no sanction of the State Government, the

prosecution of the petitioner is illegal. The petitioner prayed that he be

discharged from the prosecution. The learned Magistrate by the order

Judgment 3 wp674.15.odt

dated 20th February, 2015 rejected the application (Exh.63) filed by the

petitioner. The petitioner, being aggrieved by the order passed by the

learned Magistrate, had filed Revision Application No. 15 of 2015,

which is dismissed by the Sessions Court.

The petitioner, being aggrieved in the matter, has filed this

writ petition.

5. Shri N.D. Khamborkar, learned advocate for the petitioner

has relied on the judgment given in the case of Anil Kumar Vs. M.K.

Aiyappa, reported in (2013) 10 SCC 705 and has submitted that the

sanction under Section 197 of the Code of Criminal Procedure is

necessary at the pre-cognizance stage and the learned Magistrate could

not have directed the investigation under Section 156(3) of the Code of

Criminal Procedure without there being sanction from the State

Government to prosecute the petitioner. It is submitted that the

learned Magistrate has committed an error in overlooking the

established law that the Government servants cannot be prosecuted

without there being sanction as required by Section 197 of the Code of

Criminal Procedure. It is submitted that the learned Sessions Judge has

also failed to appreciate these aspects and therefore, the order passed

Judgment 4 wp674.15.odt

by the learned Sessions Judge is also unsustainable. It is prayed that

the impugned orders be set aside, the application (Exh.63) filed by the

petitioner be allowed and the petitioner be discharged from the

prosecution.

6. The learned A.P.P. has supported the impugned order and

has prayed that the petition be dismissed.

7. With the assistance of the learned advocate for the

petitioner and the learned A.P.P., I have gone through the documents

placed on record of the petition. The accusations against the petitioner

are to the effect that the bills submitted for the claim of the other eight

accused (Headmaster and teachers working in the school) for

reimbursement of the Leave Travel Concession were approved by the

petitioner having knowledge that the bills were false, fraudulent and

bogus. The learned Magistrate and the learned Additional Sessions

Judge have rightly considered all the relevant aspects and have

concluded that whether the petitioner acted in official course of duty or

not will have to be decided after conducting the trial. The learned

Magistrate and the learned Additional Sessions Judge have recorded

that the above point can be decided only after giving opportunity to the

prosecution to substantiate its contentions.

Judgment 5 wp674.15.odt

8. In my view, the conclusion of the learned Magistrate and

the learned Additional Sessions Judge is proper and does not suffer

from any patent illegality or perversity requiring interference by this

Court under Articles 226 and 227 of the Constitution of India.

In view of the conclusions of the learned Magistrate and

the learned Additional Sessions Judge that the point as to whether the

petitioner was performing his official duty or not will have to be

decided only after giving an opportunity to the prosecution to

substantiate its contention, the judgment relied upon by the learned

advocate for the petitioner is of no assistance to him.

I see no reason to interfere with the impugned orders.

9. The petition is dismissed. In the circumstances, the

parties to bear their own costs.

10. At this stage, Shri N.D.Khamborkar, learned advocate for

the petitioner prays for continuation of the interim relief for four

weeks. The learned A.P.P. has opposed the prayer made by the learned

advocate for the applicant.

Judgment 6 wp674.15.odt

In view of the facts of the case, the prayer made by the

learned counsel for the petitioner is rejected.

JUDGE

RRaut..