-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 706 OF 1995 The State of Maharashtra : .. Appellant. V/s. N.K. Mahangade, : .. Respondent. P.C.B.No. 1096, R/a. Satara : (Org.Accused) Dist. Satara. ---- Mr. A.S.Shitole, APP for the State. None for the Respondent. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 12th FEBRUARY,2009 DATED : 12th FEBRUARY,2009 DATED : 12th FEBRUARY,2009 ORAL JUDGMENT .: ORAL JUDGMENT .: ORAL JUDGMENT .: 1. The Appellant State takes exception to the order of learned Judicial Magistrate, First Class, at Satara, passed on 11.09.1995, acquitting the respondent, of the offence punishable under section 29 read with section 145 of the Bombay Police Act. The respondent was charged under section 29 read with section 145 of the Bombay Police Act for withdrawing himself during the period from 03.12.1991 to 27.08.1992 from duty as Police Constable, without written permission of the competent authority. It is the prosecution case that respondent without a reasonable cause and without taking permission remained -: 2 :- absent from duty for a period of between 03.12.1991 to 27.08.1992 and thus has committed an offence u/s. 145 (2) of Bombay Police Act. 2. The defence of the respondent was that he was absent on account of illness and secondly for want of sanction, the prosecution is not maintainable. The learned Magistrate after going through the evidence laid down by the prosecution concluded that the respondent accused had withdrawn himself from the duty as a police constable without any justification. The learned Magistrate further held that the sanction under section 197 of the Cr.P.C. is required for prosecuting the respondent accused and since in this case, the sanction of the State Government was not obtained before launching prosecution, the prosecution is not maintainable. The learned Magistrate in this regard relied upon the judgment of the learned single Judge dated 31st of July & 7th of August, 1990 passed in Cri. Revision Application No. 120/1989 between Shikandar Badasha Mulla vs. State of Shikandar Badasha Mulla vs. State of Shikandar Badasha Mulla vs. State of Maharashtra. Maharashtra. Maharashtra. 3. I have perused the impugned judgment and order. I have also gone through the judgment of the learned single Judge in Shikandar Badasha Mulla’s case (supra). The facts in Shikandar Badasha Mulla’s case and that of -: 3 :- present case are similar. In that case, petitioner Shikandar B. Mulla was a police constable and he was prosecuted under section 145 of the Bombay Police Act for remaining absent on duty without seeking permission. The learned Magistrate convicted him. His appeal before the learned Sessions Judge was also dismissed. Before the High Court in revision application, it was submitted that in order to prosecute a police constable under the provisions of section 145 of the Bombay Police Act, sanction under section 197 (2) of the Cr.P.C. is necessary. This submission was made on the basis of a Notification no.CRPO-78-9845-POL-3 of the Home Department of the Governemnt of Maharashtra. By this notification, the provisions of sub-section 2 of section 197 of Cr.P.C., are made applicable to the members of the force in the State charged with the maintenance of public order, whenever they may be serving. The learned single Judge, in view of the above notification, coupled with the provisions of the Cr.P.C. held that, without sanction of the Government of Maharashtra, prosecution cannot lie against petitioner therein. 4. Admittedly in the present case, there is no sanction from the State Government, as contemplated under subsection 2 of section 197 of Cr.P.C.. In the absence of such sanction, the respondent cannot be prosecuted. The -: 4 :- learned Magistrate has taken a correct view. The impugned order does not require any interference at the hands of this court. The appeal is without any merit and the same is dismissed as such. (R.V.MORE,J.) .....