where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected.

DLD(Cri)-2023-2646

BOMBAY HIGH COURT

Kisan Baliram Rathod and Another-APPELLANT
 VS
State of Maharashtra-RESPONDENT

( Before :G. A. SANAP, JJ. )

Decided on : 20-07-2023

Important Point : (Law Point)
A) At the stage of consideration of application of discharge, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting accused has been made out.

B) At the stage of discharge, Court is not expected to go deep into the matter and hold that materials would not warrant a conviction.

C) Protection under S. 197 of the Cr.P.C. is available to the public servants when an offence is said to have been committed ‘while acting or purporting to act in discharge of their official duty’, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected.

D) If the act committed is integral to the performance of a public duty then and then only the public servant is entitled to the protection under S. 197 of the Cr.P.C.

Head Note : Criminal Procedure Code—Sections 197, 227—Prevention of Corruption Act—Sections 13(1)(b) r/w 13(2)—Indian Penal Code—Sections 120-B, 420, 465 and 201—Discharge—Malpractices, misconduct and preparation of the false record—Trial Court rejected the discharge application of applicants—Inquiry revealed that the accused in the process of selection made alternations in the marks of the candidates—Candidates, who were not eligible for selection, were selected on the basis of the alteration in the marks—Conduct of accused No.1 in destroying the rough selection list is a pointer towards his guilty mind—Preparation of the false and fabricated selection list by any stretch of imagination could not be said to be connected with the official duty of accused—Sanction under S.197 CRPC not necessary—Sufficient material to presume the complicity of the accused in the commission of crime—Held, no merit in the application—Impugned judgment upheld. (Para: 2, 7, 11, 16, 17, 19, 20)

(Background Facts)
In the year 2004, process for filling up the vacant posts was initiated by the State Transport Corporation of Maharashtra—Accused no.1 was appointed as Chairman of Selection Committee, whereas the remaining two accused were the members of the Committee—Entrance examination was held—Candidates were selected—Allegations—In the process of the recruitment, accused Nos. 1 to 3 made the corrections in the marks of the candidates—Original marks given in case of some of the candidates were scored out/ corrected to favor some candidates for extraneous considerations—When the offence came to light, accused No.1 destroyed the rough selection list—Accused in the process of selection committed misconduct, being public servants—For the purpose of pecuniary advantage, by corrupt and illegal means, they tampered the mark sheets and prepared the false mark list of the candidates—FIR registered.

Result : Application dismissed. (Favor : Against applicants)