SOBHA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE two applications under section 482 Cr. P. C. arise out of the same matter and, therefore, they can ©conveniently be disposed of by a single order.

(2.) THE facts giving rise to these applications are as under : Non-petitioner no. 2 in both the cases Licchi Ram filed complaint in the court of Munsif and Judicial Magistrate, Sardarshahar on December 10, 1982 against the petitioners in these two cases alleging that the petitioners had, on the night of October 24, 1984 at about 12, unlawfully entered the 'guwadi' of the complainant, armed with Gandasi, Kassi, Jaih etc. and demolished the Guwadi and destroyed the grain lying therein. THEy also uprooted the fencing, and removed the utensils, sewing machine, beddings, and other articles lying there and, thus, committed offences under sections 392, 379, 380, 147, 148/149, I. P. C. etc. This complaint was forwarded to the Police Station. Bhanipura by the learned Magistrate for investigation. THE S. H. O. thereupon, registered a case against the petitioners and started investigation. After completing the investigation the police filed a final report stating therein that as a matter of fact, the complainant or his father had trespassed upon the public way by making encroachment obstructing the same, whereupon the complaint was filed by the villagers against them and the Panchayat, after making an enquiry and giving notice to the complainant, for removal of the obstructions, took proceedings for removing the same but the complainant had failed to comply with the notice. It was also mentioned that the obstruction was removed after informing the Collector and the Superintendent of Police and after obtaining the police assistance. THE complainant was, therefore, false and, while filing the final report the S. H. O. requested that the proceedings under sec. 211, I. P. C. may be initiated against the complainant. THE complainant however, filed a protest petition, which was treated as a complaint by the learned Magistrate. THE learned Magistrate, after taking evidence of the complainant and the witnesses, took cognizance of the offences under sections 147, 380, 456 and 427 read with 149, I. P. C. against the petitioners.

(3.) IT has already been held by this Court in Dal Chand Vs. the State of Rajasthan (1) that the Sarpanch and Panch are public servants not removable from their offices save by or with the sanction of the State Government, while relying upon two earlier decisions of this Court in Pukh Raj Vs. Uramaidram (2) and Ramdutt vs. State of Rajasthan (3 ). The same ease was further considered the question as to how an act can be considered to be done in discharge of purported discharge of the duty by the Sarpanch or Panch. Reliance in this connection was placed on Hori Ram Singh Vs. Emperor (4) and H, H. B. Gill Vs. King (5 ). The Court further observed:- "at any rate, the accused-petitioner acted in pursuance of this order or under a mistaken belief as to the existence of such duty that in compliance with the orders passed by the Panchayat as well as the Panchayat Samiti the possession of the complainant over the land had to be removed. . . . . . . . . . IT cannot be said that the accused petitioners were not acting in the course of performance of their duty. The offence alleged to have been committed must be held to be in respect of an act done or purported to be done in the discharge of an official duty and not in a private capacity. " In my opinion, this case fully applies to the facts and circumstances of the present case.