HIGH COURT OF RAJASTHAN
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(1.) BY his order dated the 5th July 1966 the Additional Sessions Judge, Jaipur district. Jaipur has recommended that the order of the Additional Munsif-Magistrate, Jaipur District, Jaipur whereby he dismissed the complaint for want of sanction be set aside.
(2.) THE facts which it is necessary to notice for the disposal of this reference briefly stated are these. Ladu Ram in his complaint claimed that he was the owner of a certain plot of land near Tonk Road and had fixed his slabs and pattis therein. The chairman. Municipal Board, Chaksu and four other members on account of political rivalry served him with a notice on 10th November 1964 to the effect that he had trespassed into the land of the Municipal Board and was directed to remove the 'pattis' and slabs he had affixed by 10 A. M. of 11th November 1964 failing which the Municipal Board would itself get them removed. It appears that Laduram neglected to comply with this order, and Chairman Rameshwar and four other members of the Municipal Board, Chaksu removed or caused the removal of the 'pattis' and the 'katlas. ' thereupon Laduram instituted a complaint on 3rd December 1964 under Sections 379 (theft) and 427 (mischief) of the Indian Penal Code, cognizance whereof was taken by the Additional Munsif-Magistrate Jaipur Dist. , Jaipur. An argument was raised before him that the complaint was not competent unless there was a sanction as envisaged by Section 197 of the Code of Criminal Procedure as the accused were public servants not removable from their service save by or with the sanction of the State Government. This objection prevailed with the learned magistrate, against which a revision was preferred before the Additional Sessions judge. Jaipur District Jaipur For the reasons that the powers of removal were delegated by the State Government to the Director of Local Bodies by certain notifications and also because a Chairman was removable by means of a vote of no-confidence, the learned Additional Sessions Judge was persuaded to hold that no sanction as required by Section 197 of the Code of Criminal Procedure was necessary, and has made the recommendation that the learned Additional Munsifmagistrate's order be set aside. 2a. I have heard Mr. Vishinlal Thakur in support of this reference and Mr. Tikku opposing it. The learned Deputy Government Advocate is indifferent to it.
(3.) IT is not controverted that the Chairman and the members of the Municipal board, Chaksu are public servants within the moaning of Section 21 of the Indian penal Code by virtue of the provisions of Section 87 of the Rajasthan Municipalities act 1959 (hereinafter called 'the Act' ). The emphasis laid before me by Mr. Thakur is that because a Chairman of a Municipal Board or Council, as the case may be, can be removed by a vote of no-confidence, it cannot be said that he is not removable save by or with the sanction of the State Government. In support of this contention Mr. Thakur invited my attention to a decision of the Mysore High court in The State v. Chikkavenkatappa, AIR 1965 My 253, wherein the learned judge held that.
"as the President or Vice-president of a Municipal Council is not a public servant who is not removable from his office save by or with the sanction of the State Government, but is also removable by a resolution of the Municipal Council expressing want of confidence, I do not think the sanction provided by Section 197, Criminal Procedure Code, is necessary for prosecution of the President or Vice-resident of a Municipal council, constituted under the Mysore Town Municipalities Act, 1951. " In this case the learned Judge followed an earlier decision of his own Court. He also repelled the contention raised before him that the word "remove" employed in section 23 (7) of the Bombay District Municipal Act, 1901, or "vacate his office" in section 23 (9) of the Mysore Town Municipalities Act 1951 made no difference for the purposes of Section 197 of the Code of Criminal Procedure. He preferred the grammatical meaning of the word "remove" contained in the Concise Oxford dictionary and, therefore, came to the conclusion that no sanction was necessary as a President or a Vice-President of the Mysore Municipality was removable by a vote of no-confidence. This authority no doubt lends support to the contention of mr. Thakur. In Shrilal v. Manmath Kumar Misra, 1959 Rai LW 609 : (AIR 1960 Raj 173) Modi J. observed that it is hard to understand that a municipal chairman, who is certainly a municipal member, should be deprived of this protection merely because he can he deprived of his position as a chairman by a vote of no-confidence, though he still retains his office as a member and by virtue of such a position he can still lay claim to the protection of Section 197. In Pukhraj v. Ummaidram, AIR 1964 Raj 174 a Division Bench case of this Court to which I was a party, the meaning of the expression "removable from service" as employed in Section 197 Cr. P. C. came to be considered. The question posed was as to what is meant by removal under section 197 of the Code of Criminal Procedure. We held:
"section 197 grants the protection to the public servants but such a public servant must be one removable from his office only by or with the sanction of the State Government or the Central Government. The very word 'removable' signifies that the termination of the employment of the public servant must not come to an end automatically by force of law nor must it come to an end because he has resigned. It must come to an end on some superior authority forcing him to vacate the office. Usually in the case of a Government servant, this is done on account of misconduct and certain safeguards are provided under Article 311 of the constitution by placing restrictions on the removal of a Government servant. It is in this technical sense that the word should be construed in section 197 Cr. P. C. and not in any other sense. It is to be construed in the sense in which it is used in the Civil Service (Classification, Control and Appeal) Rules. There is ample authority for the proposition that under Article 311, it is to be so construed. See Satish Chandra v. Union of India, AIR 1953 S. C. 250, Khem Chand v. Union of India, AIR 1958 s. C. 300, Parshotam Lal Dhingra v. Union of India, AIR 1958 S. C. 36. There is no reason to construe the word 'removal' in a different manner in Section 197 Cr. P. C. when it is to be applied to the Government servant. It is urged, however, that when it is to be applied to a person holding a public office as an elected representative, such a narrow construction on the word 'removal' should not be given. We are not satisfied that in interpreting the word 'removal' in the case of an elected representative it must be construed loosely The word 'removal' must, have the meaning of causing vacation of office as a result of misconduct or misbehaviour or any other similar cause. " And thus it was held that the benefits of Section 197 Cr. P. C. , were available to the sarpanch and Up-Sarpanch elected under the Rajasthan Panchayat Act.;
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