STATE OF MAHARASHTRA Vs. SHANKAR NARAYAN WAGH

JUDGEMENT

(1.) : The applicant was serving as Police head Constable at Police Station, Tahsil, Nagpur and during the period 10-09-1979 to 24-12-1983, he was incharge of malkhana. A number of criminal cases were filed against the applicant in relation to misappropriation of various amount and for making false entries. The criminal cases pertain to misappropriation of Rs. 165. 50 paise which were found to be missing at the time of inspection in the year 1979. In the year 1980, he is alleged to have misappropriated a sum of rs. 6,159/- and also made some false entries regarding the deposit of amount in respective courts. In the year 1981, he committed misappropriation of sum of Rs. 8,832. 30 paise. In the year 1982, he misappropriated a sum of Rs. 26,456. 21 paise. In the year 1983, he misappropriated an amount of Rs. 27,719. 65 paise. All these amounts were handed over to him as Malkhana incharge for safe custody and to deposit in the court or to return as per orders of the Court, but it is alleged that he made false entries in the concerned register and misappropriated the said amount. The charge-sheet was filed initially in the year 1987 after transfer from the court of J. M. F. C. , Nagpur, the same were renumbered. In all these cases, the counsel for the applicant filed an application for discharge under section 239 read with section 197 of Criminal Procedure Code on the ground that the applicant is a public servant as per definition of the public servant under the Indian Penal Code. The applicant was prosecuted for the offence under section 409 of Indian penal Code. The application for discharge was rejected by the Chief Judicial Magistrate, Nagpur vide order dated 19-1-1995. Against this order, the applicant filed criminal revisions before the Sessions Court and by common judgment dated 25th July, 1996, the learned I Additional Sessions judge, Nagpur allowed the revisions, set aside the order passed by the Chief Judicial Magistrate, Nagpur and discharged the applicant in all cases. This order is subject matter of challenge in this revision by the State.

(2.) ARGUMENTS were heard. Learned A. P. P. urged before me that in the facts of the case, no sanction is required and the learned Additional Sessions Judge, Nagpur had erred in discharging the application. In support of his submissions, he placed reliance on Shambhoo Nath Misra vs. State of U. P. and others reported in AIR 1997 SC 2102; State of Kerala vs. V. Padmanabhan Nair reported in 1999 Cri. LJ 3696; and P. K. Pradhan vs. The State of Sikkim represented by C. B. I. reported in 2001 (5) JT 610.

(3.) LEARNED Advocate for the respondent has placed reliance on head note C of the judgment of the Apex Court in Shreekantiah Ramayya Munipalli and another vs. State of bombay reported in AIR 1955 SC 287 and a judgment of the division Bench of this Court in Rizwan Ahmed Javed Shaikh and others vs. Jammal Patel, S. I. and others reported in 1990 (2) Bom. CR 297. He has accordingly, after placing reliance on the said authority, urged that the revision be dismissed.