CHIMANBHAI KASHIBHAI PATEL Vs. JASHBHAI MOTIBHAI
HIGH COURT OF GUJARAT
CHIMANBHAI KASHIBHAI PATEL
JASHBHAI MOTIBHAI AND THE STATE
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(1.)This is a reference by the learned Sessions Judge Nadiad for quasing the proceedings started against the petitioner Chimanlal Kashibhai Patel against whom a charge has been levelled by opponent No. 1 under sec. 409 of the Indian Penal Code in regard to certain acts which he did while he was continuing as President of the Nadiad Municipality till a new President was duly elected. The facts leading to this reference are this way:-
The petitioner-accused was a councillor of the Nadiad municipality prior to 9/03/1958. On 9th March 1958 he was s elected as President of the Nadiad Municipality for a period of one year. After the expiry of the said period of one year on 23/03/1959 the accused was elected as President for a second term of one year. It appears that a Writ Petition No. 542 was filed immediately thereafter in the then High Court of Bombay challenging the election of the accused as President of the Municipality. An order was passed in this Writ Petition on 14/04/1959 settling aside the election of the accused President of the Municipality. Under the rules of the Municipality however the accused continued as a President till the election of a new President. The accused filed and an application for leave to appeal to the Supreme Court but that application was rejected by the High Court. It may be mentioned that in the original Writ Petition No. 542 of 1959 the accused was made a party as President of the Nadiad Municipality and the Municipality was joined as second party. In that application for leave to appeal the Nadiad Municipality was a co-applicant with the accused. The accused then filed an application for special leave to appeal to the Supreme Court. In this special leave application the Nadiad Municipality was joined as a co-applicant. The accused in his capacity as the President of the Municipality engaged lawyers on behalf of the Nadiad Borough Municipality and by his orders he directed the Chief Officer of the Municipality to pay the fees of the lawyers as well as the travelling expenses incurred by him as well as the Secretary of the Municipality in connection with these legal proceedings. It appears that in addition to the directing of the payment of these charges by the Chief Officer of the Municipality the accused had also directed the payment of legal charges and travelling expenses in connection with other proceedings These other proceedings were also two Writ Petitions by one Vinubhai Gordhanbhai Patel bearing Nos. 461/59 and 649/59 in the Bombay High Court filed against the accused as President of the Municipality as well as against the Municipality itself in connection with the cancellation by the Municipality on two occasions of the factory licence of said Vinubhai Gordhanbhai Patel. In connection with these two latter Writ Petitions also the accused had engaged lawyers for himself as well as on behalf of the Municipality and he had directed the Chief Officer to pay the legal charges of the lawyers and the travelling expenses incurred by himself as well as by the Secretary of the Municipality. In addition to the above proceedings there was another Writ Petition bearing No. 541/59 which was filed by three councillors of this Municipality against the Collector and the Municipality in connection with a notice of disqualification given by the Collector to them. Lawyers were engaged in. this Writ Petition also on behalf of the Municipality and the accused as President of the Municipality had directed the Chief Officer for the payment of the legal charges and the travelling expenses of himself and the Secretary of the Municipality in connection with this Writ Petition also. All these charges ordered by him to be paid were without the sanction of the General Board of the Municipality.
(2.)On the 29/09/1959 the first opponent Jashbhai Motibhai Desai who is the original complainant filed a complaint before the third Joint Civil Judge Jr. Dn. & Judicial Magistrate First Class Nadiad for an offence under section 409 of the Indian Penal Code against the accused in regard to the payments which he directed the Chief Officer to make in regard to the above-mentioned proceedings and travelling expenses as stated above. The learned Magistrate himself made an inquiry on receipt of this complaint under the provisions of section 202 of the Criminal Procedure Code and on 9th January 1960 issued a bailable warrant. On 11 January the accused presented himself before the Court before the warrant was actually served on him and gave an application to the learned Magistrate. It is that application which has led to the present reference.
(3.)So far as it is material to the present reference it may be stated that the main ground which was taken by the accused applicant in that application before the learned Magistrate was that he was a public servant within the meaning of sec. 197 of the Cr. P. C. and not removable from his office except with the sanction of the State Government and that in regard to the transactions in question he acted or purported to act in the discharge of his official duty and that in these circumstances the learned Magistrate was not competent to take cognizance of the complaint except with the sanction of the State Government which admittedly has not been obtained in this case. The learned Magistrate while disposing of this application observed in the course of his order dated 9/02/1960 that the question whether the sanction should be obtained or not was not so clear in the case before him. However the learned Magistrate further observed that he did not rule out that the said sanction was not at all necessary further stating that the question would be considered at the proper stage. The learned Magistrate also observed that if it appeared that there was a bar against the prosecution of the accused for want of the required sanction the question would be considered in that light at a future stage and that stage he thought that it was too early to decide that question. Giving his views this way the learned Magistrate dismissed the application of the accused-applicant. Against this order of the learned Magistrate a revision application was filed before the learned Sessions Judge. The learned Sessions Judge in a detailed and careful order came to the conclusion that in this case sanction was necessary holding that the accused was a public servant not removable except with the sanction of the State Government and that the acts charged against him were done by him in his capacity as a public servant or purporting to act as such public servant. The learned Sessions Judge under these circumstances has expressed the view that sanction was necessary for the prosecution of the accused-applicant on the above-mentioned charges and that mentioned charges and that as no sanction was obtained from the State Government the learned Magistrate was not competent to take cognizance of the complaint. Under the circumstances the learned Sessions Judge has made a reference that the proceedings before the learned Magistrate should be quashed for want of sanction.
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