BEHARI LAL Vs. MOOLA

JUDGEMENT

(1.) THIS is a reference made by the District Magistrate of Alwar for quashing the order of the trying Magistrate who held that in the circumstances no sanction was necessary for the purpose of taking cognizance of the case.

(2.) THE material facts leading to the reference may be stated at this stage. It appears that the Panchayat Barkhera passed a resolution for removal of certain 'bar' and a peon of the Panchayat was sent to execute the order but when the peon failed to do so another resolution was passed by the Panchayat on 13th December, 1959. By virtue of that resolution the Panches were asked to go to the spot and get the 'bar' removed. A complaint was lodged by one Moola that on the date in question the petitioners went to the spot and set fire to the roof of the opposite party Moola and also outraged the modesty of Mt. Soni. The accused mentioned in the complaint were the Sarpanch Behari Lal, Panch Laloc, the chowkidar of the Panchayat Barkhera and two other persons, Mt. Maluki and Netia. The first three accused, the Sarpanch the Panch and the Chowkidar raised an objection that in the absence of any sanction under Section 187 of the Code of Criminal Procedure they who were public servants as members of the Panchayat, could not be prosecuted, The trying Magistrate overruled this objection and held that there was no reasonable connection between the act complained of and the discharge of official duty by the petitioners and, therefore, the petitioners were not entitled to any protection under, Section 197 of the Code. It is against this order of the trying Magistrate that the learned District Magistrate has made the reference in question.

(3.) IN support of the reference long arguments have been addressed before me by Mr. J. P. Jain on behalf of the petitioners who has referred to several decisions to fortify his contention. There is no doubt that under Section 78 of the Rajasthan Panchayat Act, 1953 (Act No. XXI of 1953) as it now stands, the Sarpanch, every Panch, every officer and servant of the Panchayat shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. That being so, ?as public servants these officers would be entitled to the protection under Section 197 of the Criminal Procedure Code provided certain other conditions are fulfilled. Section 197, Criminal Procedure Code, inter alia, says: When any public servant who is not removable from his office, save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-