RAMAZAN BI Vs. BHIMSEN RAO

JUDGEMENT

(1.) The petitioner before this Court was the complainant in C. C. 195/3 of 1969 on the file of the first Class Magistrate, Raichur. He filed a complaint under Sections 166 and 167, Indian Penal Code against the accused, who is a Patwari (Village Accountant). The accused raised a preliminary objection that the case could not be proceeded with as sanction of the Government under Section 197, Criminal Procedure Code had not been obtained. The learned Magistrate upheld the objection of the accused and dismissed the complaint. In this revision petition, the petitioner challenges the legality of the said order passed by the learned Magistrate.

(2.) Sri Raikote, learned counsel appearing on behalf of the petitioner, has contended that under Section 16 of the Mysore Land Revenue Act, 1964, (which will be hereinafter be referred to as the Act), the Deputy Commissioner is the competent authority to appoint Village Accountants. He argues that there is no delegation of the power of appointment by the Government to the Deputy Commissioner. The words 'subject to the general orders' used in Section 16 (1) only mean, subject to the general orders of the Government with regard to the number of appointments or vacancies, and has no reference to the competency of the Deputy Commissioner to appoint Village Accountants, Even as per Rule 6 of the Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, the appointing authority in respect of Village Accountants, shall be the Deputy Commissioner of the District. Sri Raikote, in support of his said contention, has strongly relied on a Bench decision of this Court, C.S.N. Murthy v. State of Mysore, (1968) 2 Mys LJ 366. It is further contended by him that even assuming that the power of such appointment is delegated by the Government to the Deputy Commissioner, once such powers are delegated no sanction of the Government is required as per Section 197, Criminal Procedure Code. In support of his said contention, he has relied on Shukla v. Navnit Lal, AIR1967 SC 1331 , 1967 CriLJ1200 , (1967 )0 GLR571 , (1967 )II LLJ261 SC , [1967 ]2 SCR290 and Krishna Murthy v. Abdul Subhan, AIR 1965 Mys 128.

(3.) Sri Murlidhar Rao, learned Counsel appearing on behalf of the respondent-accused, has argued that Section 16 of the Act specifically states that the Deputy Commissioner, may subject to the general orders o the State Government and the Divisional Commissioner, appoint a Village Accountant, He contends that unless the Deputy Commissioner gets the general orders of the State Government, he cannot appoint a Village Accountant. He argues that in the instant case there is no delegation of power by the Government to the Deputy Commissioner. The decision of the Supreme Court in AIR1967 SC 1831 , (1968 )70 BOMLR146 , [1967 ]3 SCR855 , [1968 ]21 STC10 (SC ) has no application to this case as there is no delegation of such power. The exercise of the power under Section 16 of the Act is subject to the general orders of the Government, and as the Government is the final authority so far as the appointment of Village Accountant is concerned, sanction of Government is necessary before a Village Accountant could be prosecuted. Sri Murlidhar Rao has relied on an unreported decision of a Single Judge of this Court rendered in Cri. Revn. Petn. No. 115 of 1968 (Mys). The accused in that case was a Village Accountant in Dharwar District. A preliminary objection raised by him that he could not be prosecuted for offences under Sections 166, 167 and 218, Indian Penal Code without prior sanction of the Government was upheld by this Court.