1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLICATION NO. 355/2009(ST.227/2009) Vishwas Krishnaji Shirke & Anr. Petitioners Vs. The State of Maharashtra Respondent WITH CRIMINAL REVN.APPLICATION NO.65//2009 Mangesh N.Biche PETITIONER VS. The State of Maharashtra RESPONDENT Mr.Niranjan Mundargi for the petitioners in 355/09 Mr.Rajendra Rathod i/b Mr.Siddiqui & Vishal Kalekar for petitioner in 65/09 Ms.S.V.Gajare ,APP for State in both applications CORAM: MRS.MRIDULA BHATKAR,J. DATE : 31st AUGUST, 2009. P.C. . These two applications are filed by the accused challenging the order dated 31/12/2008 passed by the learned Additional Sessions Judge-9 ,Pune rejecting the application for discharge under section 227 of Criminal Procedure Code on Exhs.56 and 62 . It is a case of the murder by police at the police chowky caused due to brutal beating by iron bar and kicks. In the application no.355/2009 the learned counsel appearing for the petitioner has submitted that the order of the learned Trial Judge is not challenged on merits but only on the law point i.e.absence of sanction under section 197 of Cr.P.C.while prosecuting the accused. 2] The submissions of the learned counsel do not hold any substance as the sanction is required of any offence alleged to have 2 been committed by him (public servant) under section 197 of Criminal Procedure Code which states as under. Section 197-(1) - When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-...... 3] Considering the facts of the case it is amply clear that the police constables were not acting in the performance of their duty and so under such circumstances the act done which is not a part of the discharge of the duty is done though while on duty ,cannot be covered under section 197 of Criminal Procedure Code and hence sanction is not required. On this ground Revision Application no.(ST) 227/2009 /355/2009 is dismissed. 4] The learned counsel appearing for the accused in Criminal Revision Application 65/2009 has submitted that the learned Sessions Judge ought to have considered that there is no evidence against the appellant who is a telephone operator at the police outpost. He has submitted that the complainant who happens to be the eye witness did not identify this particular police personnel i.e.the accused/appellant and has not attributed any role to him in the act of assault though his presence at the police outpost is not denied. The learned A.P.P.per contra has pointed out that besides the complainant the prosecution relies on one more eye witness i.e.Pandurang Ghuge, who knew each and every police personnel in that particular police chowky and was present at the time of incident. 3 Reliance is placed on - i] Harekrushna Satpathy and another Vs.Maheswar Sahu and another ) reported in 1989 Cri.L.J.NOC 77(Orissa). ii] Bakhshish Singh Brar Vs.Smt.Gurmej Kaur and another , reported in AIR,1988 Supreme Court,257. In Bakhshish Singh’s case it is observed that - “It is necessary to protect the public servants in the discharge of their duties.They must be made immune from being harassed in criminal proceedings and prosecution,that is the rationale behind S.196 and S.197 .But it is equally important to emphasise that rights of the citizens should be protected and no excess should be permitted. ‘’ Encounter death “ has become too common. Int he facts and circumstances of each case protection of public officers and public servants functioning in 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 S.196states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of where done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the sasme time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.’’ 5] Considering the order passed by the learned Sessions Judge prima facie there is some evidence to show presence and participation of the accused . The learned Sessions Judge has rightly considered the evidence and rejected the application under section 227 of the Criminal Procedure Code. Both the Revision Applications stand rejected. Interim stay, if any, stands vacated. (MRS.MRIDULA BHATKAR,J.)