BHAGWATILAL Vs. BHANWARLAL

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Udaipur recommending that the order of the Sub-Divisional Magistrate, Udaipur dated 25th April, 1958 dismissing the petitioner Bhagwati Lal's complaint for want of sanction under sec. 197 Cr. P. C. , should be set aside and the Magistrate may be directed to try the complaint on merits.

(2.) THE facts leading to the present reference may be briefly stated as follows: - THE complainant Bhagwatilal was contesting the election for Sarpanchship for the Tehsil Panchayat Girwa. Accused No. 1 Bhanwar Lal was a rival candidate. It appears that on an application by accused No. 1 Bhanwarlal requesting for a certificate regarding the residence of Bhagwatilal, accused Nos. 2 to 6 who are Sarpanch and panchas of Gram Panchayat Kudawal after obtaining a report from the Patwari accused No. 7 to the effect that the name of the complainant Bhagwatilal is not included in the list of the voters for the Panchayat Kudawal, issued a certificate to that effect under their signatures and the seal of the Panchayat on 26th February, 1958. THE complainant's case is that this certificate was issued by the accused Nos. 2 to 6 falsely to put obstacles in the way of the complainant's nomination as a candidate for the Sarpanch's election. On these allegations he filed a complaint in the court of the Sub-Divisional Magistrate, Udaipur charging the accused under Secs. 197, 167, 471, 191 and 500 I. P. C. THE Magistrate held that the accused Nos. 1 to 6 were public servants not removable except by the Government and that the act complained of was committed by these accused in the purported discharge of official duties and therefore, he was not competent to take cognisance of the offence without sanction of the Government as required by sec. 197 Cr. P. C. He consequently dismissed the complaint.

(3.) DEALING with Sec. 18 it must be pointed out that it provides for cases where a Panch, Sarpanch or an Upsarpanch resigns his office. It simply says that on an acceptance of resignation by the Chief Panchayat Officer, a Panch, Sarpanch or Upsarpanch shall be deemed to have vacated his office. On a reasonable construction of Sec. 18 it would be hardly justified to equate vacation of office in consequence of resignation with a removal by Chief Panchayat Officer. This consideration coupled with the use of the special expression "shall be deemed to have vacated his office" in my opinion are quite sufficient to negative a contention that a Panch, Sarpanch or Upsarpanch is removable by the Chief Panchayat Officer in terms of Sec. 197 Cr. P. C. On a careful consideration of the various relevant provisions I have no hesitation in coming to the conclusion that a Panch, Sar-panch or Upsarpanch is a public servant not removable save by or with the consent of the Government. While I was dictating this judgment my attention was invited to two conflicting decisions of this Court. In Kalu vs. Pyara (1), Jagat Narayan, J. made an observation that the panchas are not public servants who are removable from their office only with the sanction of the State Government. In Mohan Lal vs. The State (2), Modi, J. after referring to Sec. 17 (4) of the Panchayat Act came to the conclusion that a Panch, Sarpanch or Upsarpanch is a public servant not removable save by the sanction of the Government. After an examination of the reasons for the differing views taken by me as to the proper construction of Secs. 18 and 19 of the Rajasthan Panchayat Act, 1 feel persuaded to take the view that a panch, Sarpanch or Upsarpanch is a public servant not removable save by or with the consent of the State Government and is consequently entitled to protection under Sec. 197 Cr. P. C. At this stage I may also notice two other cases relied upon for contrary conclusion. One is Ranjit Singh vs. State through Bachi Singh (3), and the other is Konkati Narayana vs. Balakanti Veerayya (4 ). Allahabad case need not be discussed at great length as the decision in this case is based upon the special provision of the U. P. Panchayat Act under which a Commissioner has been empowered to order the removal of the Panch. In the Andhra Pradesh case the learned Judge in the first instance was influenced by the provisions relating to no confidence motion. After making reference to relevant provisions he concludes that the Act itself envisages an alternative mode by which a Sarpanch or an Upsarpanch can be removed from his office and such removal is not by the State Government but by the Collector or the competent officer. In the earlier part of the judgment I have recorded a conclusion that the Chief Panchayat Officer in Rajasthan does not exercise any independent power and the action to be taken by him under sub-sec. 3 of sec. 19 is merely to secure implementation and execution of a motion of no-confidence and does not amount to act of removal. On that view I find it difficult to agree with the conclusion of the learned Judge.