RAMACHANDRAN Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the order of the learned Judicial Second Class Magistrate, Uthamapalayam dismissing, an application under Section 258 of the Code of Criminal procedure filed by the revision petitioner. The revision petitioner contended that he is the President of V. Ammapatti Village Panchayat, that the act complained of against him, namely the removal of encroachment, was done in the discharge! of his official duty as President, that sanction is required under Section 169 of Act XXXV of 1958 and as no sanction was obtained the ; proceedings have to be stopped under Section 258 of the Criminal P. C. The learned Magistrate found that the first accused-President has Bought the eviction of the complainant through the officers of the 'revenue Department and that notice had been served on Meenamhal, mother of Selvaraj, the Complainant, and that though a week's lime was granted, the first accused-President has removed the encroachment before the expiry of that period and therefore the President has not acted or purported to act in his official capacity and consequently no sanction is necessary. In the end, as already pointed out, he dismissed the application, The first accused-President is aggrieved and has filed this revision.

(2.) SECTION 169 of the Madras Act XXXV of 1958 prohibits any court from taking cognizance of any offence alleged to have been committed by the President while acting or purporting to act in the discharge of his official duty except with the previous sanction of the Government. The Act itself prohibits a court taking cognizance of any offence except with the previous sanction of the Government, It is clear that such sanction would be necessary only when the act complained of was done in the discharge or purported discharge of the duty of the President. In this case; the petitioner invokes the aid of not only Section 169 of the Panchayats Act, but Section 197 of the Cr. P. C. Before a protection under Section 197 Cr, P. C. is claimed by any accused, he shall have to satisfy three conditions, (1) that he is a public servant, (2) that he is not removable from his office save by or with the sanction of the State Government or the Central Government, and (3) that he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. No arguments were advanced either by the learned Counsel for the petitioner or by the learned Public Prosecutor in respect of the first two conditions in view of Section 169 of the Panchayats Act. The only question therefore that requires consideration in this case is whether the accused has committed the offence while acting or purporting to act in the discharge! of his official duty. The answer to this question would depend on the true interpretation of the words "acting or purporting to act in the discharge of his official duty" occurring in Section 197 Cr. P. C. Both the learned Counsel for the revision petitioner and the learned Public Prosecutor have cited certain authorities on this point. The tests formulated by the various decisions cited do not appear to be uniform and consequently the question as to whether the act of any public servant comes within the purview of his official duty or lies outside the scope of his official duty, does not admit of easy solution.

(3.) BEFORE I proceed to discuss the law on the subject, I must point out that the act complained of is that the President-first accused and others demolished that house of the complainant and also assaulted the complainant and his mother Meenambal. The defence was that the President has been authorised by a resolution of the panchayat to remove the encroachment and he acted in pursuance of that resolution in the discharge of his duties. The fact that the President was so authorised is not, disputed. What the! learned Public Prosecutor contends is that the president has no power to remove the encroachment in 'natham porambokes' and all that he must do is to complain of such encroachments to the officers of the Revenue Department and seek eviction under the Tamil Nadu Land Encroachment Act, 1905. He invited my attention to G. O. Ms. No. 972. R. D. and L. A. , dated 4th April 1961 (see Manual of Panchayat Administration, page 220, 1967 Edition ). Per contra, the learned Counsel for the petitioner relied on S. R. O. A. 411/70 amendment to Rules 11, 12 and 13 in respect of "restrictions and Control to regulate! the use of porambokes in ryotwari tracts" (see Manual of Panchayat Administration, page 214, 1967 Edition ). The relevant portion of the amended Rule 11 runs thus: The panchayat shall take steps to remove the encroachments on any poramboke; the use of which is regulated by it under Sub-sections (2) and (4) of Section 86 of the Tamil Nadu Panchayats Act, 1958 and if the Panchayat makes default in doing so, after three months from the date of detection of such encroachments, the Tahsildar or the Independent Deputy Tahsildar concerned or any other officers specifically authorised by the State Government in this behalf, shall have the right to order the removal of such of those encroachments as are considered objectionable by him. An appeal shall lie against such an order to the Revenue Divisional Officer in the districts other than the Nilgiris district, where the appellate powers shall lie with the Personal Assistant (General) to the Collector. It is pointed out by the learned Counsel for the petitioner that the words "taking steps" occurring in the amended Rule 11. include the step of removing the encroachment. Bearing these contentions, we may now advert to the cases cited by the learned Counsel for the petitioner and by the learned Public Prosecutor. The learned Counsel for the petitioner placed reliance on Shrilal V. Manmath Kumar. That was a case where the petitioner therein instituted a suit against a municipal board and obtained interim injunction restraining the board from demolishing a wall and though that order was served on the chairman of the Board, the wall was demolished by the other accused and the chairman and the Executive Officer of the board were alleged to be parties to a conspiracy to demolish the wall. It was held that the impugned act of the chairman and the Executive Officer assuming that they were individually responsible for it was an act which was clearly relatable to the discharge of their official duties.