DILAWAR BALU KURANE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THROUGH this Criminal Revision Application the petitioner impugnes the order dated 6th December 1989, passed by the Special Judge, Kolhapur, rejecting his application (Exhibit 6), in Special Case No.8 of 1987, praying for discharge under section 227 Criminal Procedure Code and the charges dated 8th January 1990 framed by him under sections 161 and 477a of the Indian Penal Code and sections 5 (1) (a) and 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947.

(2.) THE factual matrix from which this revision application arises in brief is as under: In the year 1986 the petitioner was employed as a lecturer in Y. B. Chavan College, Kolhapur, which is an institution run by Municipal Corporation, Kolhapur and affiliated to Shivaji University, Kolhapur. Vide letter dated 29. 1. 1986, a copy of which has been annexed as Exhibit "a" to the petition, the petitioner was invited to examine the papers in Accountancy (THEory), at the B. Com. , Second Year Examination, conducted by Shivaji University, Kolhapur. He accepted the said offer. On 1st May 1986, one Ashok Salokhe, who had appeared in the said examination from Ichalkaranji centre, visited the house of the petitioner and told him that it was difficult for him to pass in the said paper. THE petitioner demanded Rs. 400/- as bribe from him to increase his marks. On 2nd May 1986 at about 4 . 30 p. m. he accepted the said amount from Ashok Salokhe and asked him to rewrite the answers to questions nos. 1 and 4 . He scored out the previous marks given on the answers to the said questions and awarded 8 and 9 marks, respectively, in respect of them. THE said marks were sufficient for Ashok Salokhe to succeed in the paper. It is alleged that the sum of Rs. 400/- paid by Ashok Salokhe to the petitioner, had been arranged by a political body called Akhil Bharatiya Vidyarthi Parishad and the then Acting Registrar, Deputy Registrar and Senior Clerk of the University were also taken into confidence. After paying Rs. 400/- to the petitioner Ashok Salokhe informed the Registrar of Kolhapur University accordingly. THE latter gave directions forthwith to bring back all the answer books examined by the petitioner in the condition in which they were and his orders were duly complied with. On 9.5 . 1986 the Deputy Registrar of the said University lodged an FIR with Juna Rajwada Police Station. An offence was registered against the petitioner. His house was searched but nothing incriminating was found. In March 1987 statements of a number of persons were recorded. On 13.10. 1987 the Deputy Superintendent of Police, Anti Corruption Bureau, Kolhapur, filed the chargesheet. THEreafter, the Special Judge issued process against the petitioner to stand trial for the offences mentioned in para 1. Against the said order of issuing process, as also for quashing the proceedings arising from the criminal complaint before the Special Judge, petitioner preferred Criminal Writ Petition No.283 of 1988 in this court. THE said writ petitioner was decided on 11th July 1988 by Daud J. , who evaluated the prosecution case on merits and observed in the judgment that the prosecution case against the petitioner rested on flimsy foundation. He, however, made an observation that the examiner of the University would be a public servant, within the meaning of section 73 (4) of Shivaji University Act, 1974. However in conclusion, he expressed the view that the better course would be to leave the matter and the said question, to be decided by the Special Judge. On 30.7 . 1989 the petitioner moved an application for discharge (Exhibit 6) before the Special Judge and the said application was rejected vide the impugned order dated 6th December 1989. THE learned Special Judge vide the impugned order dated 8 . 1. 1990, framed charges, on counts mentioned in para 1, against the petitioner. THE said orders dated 6th December 1989 and 8 . 1. 1990 have been impugned by the petitioner in the present revision application.

(3.) IN order to adjudicate upon the said grievance of the petitioner it would be appropriate to extract the provisions contained in section 227 Cr. P. C. The said section reads thus: " 227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. " A perusal of the said section shows that an order of discharge is required to be passed if there is no sufficient ground for proceeding against the accused. IN case an accused is not discharged then a charge is framed against him as stipulated by provisions contained in section227 of Cr P. C.