K.C. SAHU, EXECUTIVE OFFICER, NOTIFIED AREA COUNCIL Vs. PANAMLAL AND
HIGH COURT OF ORISSA
K.C. Sahu, Executive Officer, Notified Area Council
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B.K. Patra, J. -
(1.) IN both the cases, a common question of law as to whether, sanction is necessary for the prosecution of the accused arises for determination. The accused persons are common to both the cases and they are the Executive Officer, the Chairman, the Vice Chairman and the councilors of the Notified Area council, Koraput. The Petitioners in both the cases are persons who had their wooden cabins on municipal land within the jurisdiction of the Notified Area Council, Koraput. It is not disputed that they had been permitted temporarily by the N.A.C. authorities, to have their cabins on municipal land and that after expiry of the period of license, they were asked to remove the cabins which they failed to do, but challenged the orders issued to them in suits filed by them against the accused persons in the Court of the Munsif, Jeypore. The Munsif appears to have issued an ex parte and interim injunction restraining the accused persons from removing the cabins by force. But the orders of injunction had subsequently been vacated. It is alleged that on 19 -3 -1969 in one case (Cr. Rev, 699 71) and on 20 -3 -1969 in the other case (Cr. Rev, 702 71), the accused persons forcibly removed all the articles from the cabins, auctioned some of them and took away the sale proceeds of the auctioned articles. On these allegations, the two complaint petitions were filed against them in Court under Sections 399, 448 406, 34, Indian Penal Code. The complaint petitions were sent for inquiry under Section 20, Code of Criminal Procedure to a local Magistrate who reported that the allegations made in the complaint petitions were substantially true. After considering the report, the learned Sub -Divisional Magistrate, Koraput took cognisance only under Section 427, Indian Penal Code. According to him, no case had been made out for prosecution of the accused persons under Sections 379 or 448 or 406, Indian Penal Code.
(2.) AFTER the accused persons appeared in Court, they contended that their prosecution without obtaining the necessary sanction under Section 376 of the Orissa Municipal Act is bad and that they should be discharged. The S.D.M. having rejected their contention, they moved the Sessions Judge in revision, but being unsuccessful they have filed these revision applications. The only contention advanced on their behalf is that their prosecution without necessary sanction is bad in law.
(3.) SECTION 376 of the Orissa Municipal Act, 1950 (Act 23 of 1950)(hereinafter referred to as the Act) reads thus:
376. When the Chairman, Vice -Chairman or any councilor of a municipal councilor any officer of Government whose services are lent to the Council 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 of the State Government.
Section 197 of the Code of Criminal Procedure in so far as is relevant runs thus:
197(1) x x x x, or 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.
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The language of Section 376 of the Act is almost identical with that of Section 197, Code of Criminal Procedure so far as it relates to the circumstances under which sanction for prosecution is necessary.;
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