Trimbak Haribhau Tarte v. The State of Maharashtra

Mr.A.N.Neharkar, Advcoate h/for Mr.G.K.Thigale, Advocate for Petitioner; Mrs.B.R.Khekale, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 29th September, 2009. PER COURT : . Rule, Rule made returnable forthwith, by consent of parties, heard finally. 2) The order rejecting the discharge application dated 22.6.2009 in Special Case No. 26/2003 by the learned Special Judge, Beed, is subject of criticism. 3) Learned Counsel representing the petitioner/accused, to point as to how the observation of the learned Special Judge about the lethargy on the part of the accused is 2 incorrect, has taken recourse to the Roznama of particular dates of the learned Judge. On going through the same, I find that it was on

13.2.2009, 20.3.2009 and

4.5.2009, the adjournments could not be attributed to be at the fault of the accused as the Presiding Officer was not available to take up the judicial work. However, I find on the other dates mentioned by the learned Judge, there was adjournment sought on behalf of the accused on different pretext and the Counsel were accommodated accordingly. I do not see any harshness in the approach of the learned Judge in making the above observations in paragraph 6 of the order. The learned Judge was rather compelled by the circumstances to make such observations and nothing more. 4) The prima facie factual matrix indicate that the accused tried to pay illegal gratification to the Inquiry Officer, it could not be treated to be part of his official duty. Consequently, insistence for sanction in terms of Section 197 of Cr.P.C. will not be available. 5) The reference to the Judgment in the matter of Anjani Kumar Vs.

State of Bihar and another, reported in (2008) 5 SCC 248, is totally based on altogether different parameter. It was in relation to cancellation of license of a 3 medical shop M/s Arun Medical Hall. There was an altercation and F.I.R. was lodged and in the situation, the Apex Court observed in paragraph 13 as under : functioning “The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v.Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:- "It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit.

It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time 4 it has to be emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. " 6) The Counsel also placed reliance to the Judgment in the matter of State of Orissa and Ors. Vs. Ganesh Chandra Jew, reported in 2004 AIR SCW 1926, wherein, the Apex Court in paragraph 19 have observed as under : “19. We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed "it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement.

The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the 5 public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It was in pursuance of this observation that the expression 'was' come to be employed after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.” 7) No such eventuality is surfacing in the present matter. At this stage of the matter, non-commencement of the prosecution, as sought by the present revision petitioner, is not legally justified. I do not see any error on the part of the learned Special Judge in rejecting the application for discharge. The present Criminal Revision Application sans merit, it is dismissed. Rule discharged. ( K.U.CHANDIWAL ) JUDGE bdv/crrv208.09 6