CHIMANBHAI KASHIBHAI PATEL Vs. JASHBHAI MOTIBHAI

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge Nadiad for quasing the proceedings started against the petitioner Chimanlal Kashibhai Patel against whom a charge has been levelled by opponent No. 1 under sec. 409 of the Indian Penal Code in regard to certain acts which he did while he was continuing as President of the Nadiad Municipality till a new President was duly elected. The facts leading to this reference are this way:-

(2.) On the 29/09/1959 the first opponent Jashbhai Motibhai Desai who is the original complainant filed a complaint before the third Joint Civil Judge Jr. Dn. & Judicial Magistrate First Class Nadiad for an offence under section 409 of the Indian Penal Code against the accused in regard to the payments which he directed the Chief Officer to make in regard to the above-mentioned proceedings and travelling expenses as stated above. The learned Magistrate himself made an inquiry on receipt of this complaint under the provisions of section 202 of the Criminal Procedure Code and on 9th January 1960 issued a bailable warrant. On 11 January the accused presented himself before the Court before the warrant was actually served on him and gave an application to the learned Magistrate. It is that application which has led to the present reference.

(3.) So far as it is material to the present reference it may be stated that the main ground which was taken by the accused applicant in that application before the learned Magistrate was that he was a public servant within the meaning of sec. 197 of the Cr. P. C. and not removable from his office except with the sanction of the State Government and that in regard to the transactions in question he acted or purported to act in the discharge of his official duty and that in these circumstances the learned Magistrate was not competent to take cognizance of the complaint except with the sanction of the State Government which admittedly has not been obtained in this case. The learned Magistrate while disposing of this application observed in the course of his order dated 9/02/1960 that the question whether the sanction should be obtained or not was not so clear in the case before him. However the learned Magistrate further observed that he did not rule out that the said sanction was not at all necessary further stating that the question would be considered at the proper stage. The learned Magistrate also observed that if it appeared that there was a bar against the prosecution of the accused for want of the required sanction the question would be considered in that light at a future stage and that stage he thought that it was too early to decide that question. Giving his views this way the learned Magistrate dismissed the application of the accused-applicant. Against this order of the learned Magistrate a revision application was filed before the learned Sessions Judge. The learned Sessions Judge in a detailed and careful order came to the conclusion that in this case sanction was necessary holding that the accused was a public servant not removable except with the sanction of the State Government and that the acts charged against him were done by him in his capacity as a public servant or purporting to act as such public servant. The learned Sessions Judge under these circumstances has expressed the view that sanction was necessary for the prosecution of the accused-applicant on the above-mentioned charges and that mentioned charges and that as no sanction was obtained from the State Government the learned Magistrate was not competent to take cognizance of the complaint. Under the circumstances the learned Sessions Judge has made a reference that the proceedings before the learned Magistrate should be quashed for want of sanction.