STATE OF MAHARASHTRA Vs. MORESHWAR GOVINDA CHINCHALKAR

JUDGEMENT

(1.) THE short point involved in this reference made by the Sessions Judge of Chandrapur is whether sanction under Section 197 of the Code of Criminal Procedure is necessary to prosecute the office -bearers and members of a Municipal Council, established under the Maharashtra Municipalities Act, 1965.

(2.) ADMITTEDLY , Shankar Deshmukh and Sambayya (opponents Nos. 2 and 3) were respectively President and Vice -President of the Municipal Council of Rajura, whereas opponents Nos. 4 to 7 were members when the incident took place on June 9, 1969. It is alleged that they entered the house of complainant Moreshwar (opponent No. 1) along with some labourers on that day and directed the labourers to demolish the complainant's latrine. Accordingly, this was done and a portion of compound wall was also demolished, thereby causing damage to the complainant to the tune of about Rs. 2,000. Describing this act as illegal and unlawful, complainant Moreshwar filed a private complaint against opponents Nos. 2 to 7 before the Judicial Magistrate, First Class, Rajura, for offences under Sections 448 and 427 of the Indian Penal Code, but the learned Magistrate sent this complaint to the police for enquiry and report under Section 202 of the Code of Criminal, Procedure. On receipt of police report, notices were also issued to the accused persons to show cause against the complaint and when they appeared, they raised a preliminary objection through their counsel that being public servants under the Maharashtra Municipalities Act, they could not be prosecuted without sanction of the State Government as required by Section 197(1) of the Criminal Procedure Code. This argument prevailed upon the trial Magistrate, who, therefore, dismissed the complaint of opponent No. 1 Moreshwar under Section 203 of the Criminal Procedure Code, without recording any evidence.

(3.) FOR purposes of Section 197, following three factors are necessary for its application :