Chhangani, J. - (1.) THIS is a reference by the learned Sessions Judge, Udaipur recommending that the order of the Sub-Divisional Magistrate, Udaipur dated 25th April, 1958 dismissing the petitioner Bhagwati Lal's complaint for want of sanction under sec. 197 Cr. P. C. , should be set aside and the Magistrate may be directed to try the complaint on merits.
(2.) THE facts leading to the present reference may be briefly stated as follows: - THE complainant Bhagwatilal was contesting the election for Sarpanchship for the Tehsil Panchayat Girwa. Accused No. 1 Bhanwar Lal was a rival candidate. It appears that on an application by accused No. 1 Bhanwarlal requesting for a certificate regarding the residence of Bhagwatilal, accused Nos. 2 to 6 who are Sarpanch and panchas of Gram Panchayat Kudawal after obtaining a report from the Patwari accused No. 7 to the effect that the name of the complainant Bhagwatilal is not included in the list of the voters for the Panchayat Kudawal, issued a certificate to that effect under their signatures and the seal of the Panchayat on 26th February, 1958. THE complainant's case is that this certificate was issued by the accused Nos. 2 to 6 falsely to put obstacles in the way of the complainant's nomination as a candidate for the Sarpanch's election. On these allegations he filed a complaint in the court of the Sub-Divisional Magistrate, Udaipur charging the accused under Secs. 197, 167, 471, 191 and 500 I. P. C. THE Magistrate held that the accused Nos. 1 to 6 were public servants not removable except by the Government and that the act complained of was committed by these accused in the purported discharge of official duties and therefore, he was not competent to take cognisance of the offence without sanction of the Government as required by sec. 197 Cr. P. C. He consequently dismissed the complaint. The complainant filed a revision before the learned Sessions Judge Udaipur who agreed with the finding of the trial Magistrate that the act complained of was reasonably connected with the discharge of official duty but holding that the accused were removable from office even by the Chief Panchayat Officer he concluded that sanction under Sec. 197 Cr. P. C. was not necessary. He consequently, has made the present reference for quashing the Magistrate's order. The reference has been opposed by Shri Mahavir Chand appearing for the accused and Shri Chaterjee Assistant Government Advocate appearing for the State. Shri Jeewan Sing Chordia for the complainant has supported the reference. The sole question for determination in this case is whether provisions of sec. 197 Cr. P. C. are attracted in the facts and circumstance of this case. It is not and indeed cannot be disputed that the panchas are public servants. According to sec. 78 of the Rajasthan Panchayat Act "the Sarpanch, every Panch, and every officer and servant of a Panchayat and a Tehsil Panchayat shall be deemed to be public servant within the meaning of sec. 21 of the Indian Penal Code. " Criminal Procedure Code does not define the term 'public servant' but Sec. 3 (i) (2) extends the definition of the I. P. C. to the Criminal Procedure Code. It follows that a Sarpanch and a Panch should be deemed to be public servant within the meaning of Sec. 197 Cr. P. C. The learned Sessions Judge accepted this position. He has however, on a consideration of sec. 18 and 19 of the Rajasthan Panchayat Act recorded a conclusion that the panchas are removable from office by an authority other than the Government, and therefore, they are not entitled to the protection of sec. 197. The learned Judge has also held that the Sarpanch and the Panch while sitting as a court will be no doubt judges but observing that the issuing of a certificate cannot be treated as a discharge of the judicial functions, the learned Judge found that the accused panchas cannot claim protection on this ground under Sec. 197 The conclusions of the learned Sessions Judge have been assailed by Shri Mahavir Chand appearing for the accused panchas and Shri Chatterjee appearing for the State. The main question therefore which emerges for determination is whether the panchas are public servants not removable save by or with the consent of the Government. There are specific provisions relating to removal of panchas. Sub-sec. 4 of sec. 17 lays down that "the State Government may, by order in writing and after giving him an opportunity of being heard and making such inquiry as may be deemed necessary remove any Panch, Sarpanch or Up-sarpanch. " It is clear that the removal of a Sarpanch and Upsarpanch and a Panch can be ordered only by the State Government, These general provisions are not affected by other provisions of the Act which relate to special cases and in my opinion the general provisions must remain as a decisive and determining factor. Examining the provisions of sec. 19 I consider it proper to make a few preliminary observations. Under sec. 13 of the Rajasthan Panchayat Act a Sarpanch is to be elected by the electors of the whole Panchayat circle whereas an Upsarpanch is to be elected by the panchas. Sec. 19 contains provisions for bringing a motion of no-confidence against a Sarpanch and Upsarpanch. Sub-sec. 2 provides that "if the motion against the Sarpanch is carried by a majority of not less than 3/4th of the total number of panchas or if the motion against the Upsarpanch is carried by a majority of the total number of panchas, the Sarpanch or the Upsarpanch as the case may be. shall within 3 days of the passing of the motion resign his office by submitting his resignation to the Chief Panchayat Officer and thereupon his office shall be deemed to be vacant. " The requirements with regard to submission of resignation are mandatory and the Sarpanch and Upsarpanch have no option whatsoever in the matter. The office of the Sarpanch becomes vacant automatically. Then follows sub-sec. 3 which provides that "if the Sarpanch or the Upsarpanch as the case may be against whom the motion of no-confidence has been carried, does not resign his office within the period prescribed in sub-sec. 2, he shall be removed from his office by the Chief Panchayat Officer. " A proper consideration of these provisions will show that sub-sec. 3 is intended only to secure an implementation and execution of the resolution of no-confidence motion. It cannot be reasonably interpreted to confer powers to dismiss a Sarpanch or Upsarpanch on the Chief Panchayat Officer, in a sense in which the word 'dismissal' is generally understood. The Chief Panchayat Officer does not exercise any independent powers under sub-sec. 3. While on the one hand in the absence of a no-confidence motion, he acquires no jurisdiction to take any action in the matter, on the other hand after the passing of a no-confidence motion he has no discretion but to remove the Sarpanch or the Upsarpanch. In this view of sec. 19 which is clearly intended to carry out the wishes of the elected panchas it will be hardly fair and proper to treat the section as conferring powers upon the Chief Panchayat Officer to remove the panchas in the proper sense of the term 'remove'. This aspect does not appear to have been considered by the learned Sessions Judge. Apart from this even an adoption of the interpretation of sec. 19 as conferring powers of dismissal on the Chief Panchayat Officer although there is no justification for adopting that interpretation, does not advance the case of complainant very much in the facts and circumstances of this case. This section only provides for a case of no-confidence against a Sarpanch and Upsarpanch and has nothing to do with the panchas as such who are not removable under this section. In the present case besides the Sarpanch there are other panchas in the category of accused and those panchas cannot he said to be removable by the Chief Panchayat Officer under sec. 19 sub-sec. 3 of the Act. There is yet one more aspect which needs be considered. Whatever may be the position of the Sarpanch who is not an ordinary Panch, it cannot be accepted that an Upsarpanch ceases to be an ordinary Panch in consequence of a successful motion of no confidence followed by either resignation under sub-sec. 2 or removal by the Chief Panchayat Officer under sub-sec. 3. While discharging the duty as an Upsarpanch it is indeed impossible to divorce the position of an Upsarpanch from his position as an ordinary Panch. He will be a Panch while acting as Upsarpanch and therefore in his case sec. 19 sub-sec. 3 cannot be considered as conclusive as he continues in office as a Panch and is not removable by the Chief Panchayat Officer in that capacity. Sec. 19 therefore, in these circumstances cannot be successfully relied upon for a wide proposition that the Sarpanch, Upsarpanch and the panchas are removable by an authority other than the State.
(3.) DEALING with Sec. 18 it must be pointed out that it provides for cases where a Panch, Sarpanch or an Upsarpanch resigns his office. It simply says that on an acceptance of resignation by the Chief Panchayat Officer, a Panch, Sarpanch or Upsarpanch shall be deemed to have vacated his office. On a reasonable construction of Sec. 18 it would be hardly justified to equate vacation of office in consequence of resignation with a removal by Chief Panchayat Officer. This consideration coupled with the use of the special expression "shall be deemed to have vacated his office" in my opinion are quite sufficient to negative a contention that a Panch, Sarpanch or Upsarpanch is removable by the Chief Panchayat Officer in terms of Sec. 197 Cr. P. C. On a careful consideration of the various relevant provisions I have no hesitation in coming to the conclusion that a Panch, Sar-panch or Upsarpanch is a public servant not removable save by or with the consent of the Government. While I was dictating this judgment my attention was invited to two conflicting decisions of this Court. In Kalu vs. Pyara (1), Jagat Narayan, J. made an observation that the panchas are not public servants who are removable from their office only with the sanction of the State Government. In Mohan Lal vs. The State (2), Modi, J. after referring to Sec. 17 (4) of the Panchayat Act came to the conclusion that a Panch, Sarpanch or Upsarpanch is a public servant not removable save by the sanction of the Government. After an examination of the reasons for the differing views taken by me as to the proper construction of Secs. 18 and 19 of the Rajasthan Panchayat Act, 1 feel persuaded to take the view that a panch, Sarpanch or Upsarpanch is a public servant not removable save by or with the consent of the State Government and is consequently entitled to protection under Sec. 197 Cr. P. C. At this stage I may also notice two other cases relied upon for contrary conclusion. One is Ranjit Singh vs. State through Bachi Singh (3), and the other is Konkati Narayana vs. Balakanti Veerayya (4 ). Allahabad case need not be discussed at great length as the decision in this case is based upon the special provision of the U. P. Panchayat Act under which a Commissioner has been empowered to order the removal of the Panch. In the Andhra Pradesh case the learned Judge in the first instance was influenced by the provisions relating to no confidence motion. After making reference to relevant provisions he concludes that the Act itself envisages an alternative mode by which a Sarpanch or an Upsarpanch can be removed from his office and such removal is not by the State Government but by the Collector or the competent officer. In the earlier part of the judgment I have recorded a conclusion that the Chief Panchayat Officer in Rajasthan does not exercise any independent power and the action to be taken by him under sub-sec. 3 of sec. 19 is merely to secure implementation and execution of a motion of no-confidence and does not amount to act of removal. On that view I find it difficult to agree with the conclusion of the learned Judge. The second reason which weighed with the learned Judge is that according to him the Sarpanch and Upsarpanch are elected and therefore, cannot be said to be employed. On a perusal of sec. 21 of the I. P. C. I am unable to hold that there should be an employment in the sense of appointment to bring about the status of a public servant and the mere fact that the panchas are elected cannot be permitted to detract from their status as public servants if otherwise they fall within that description. It must be appreciated that the legislature by a specific provision has conferred the status of a public servant on them by securing protection available to a public servant and it will be wholly improper to deny protection to them by emphasising the absence of the word 'employed' in their case. Thirdly the learned Judge doubted whether a Panch or Sarpanch can be deemed to be employed in connection with the affairs of the State. The main part of sec. 197 sub sec. (1) which deals with the protection does not make any mention of "employed in connection with the affairs of the State Government". It is only in connection with the determination of the sanctioning authority that the employment in connection with the affairs of the State or Union Government come into picture. The expression used for the determination of the sanctioning authority, "cannot be of much assistance in determining the status of a public servant and besides on a reasonable and proper construction of the expression it can be safely laid down that a Panch, Sarpanch or Upsarpanch must be deemed to. be employed in connection with the affairs of the State. On these considerations I find it difficult to express my concurrence with the view taken in the Andhra Pradesh case and adhere to the conclusion reached by me on a general consideration of the provisions of the Rajasthan Panchayat Act. Mr. Chordia then assailed the finding of the courts below to the effect that the issuing of certificate by the panchas was an act reasonably connected with the discharge of duties of the panchas and pressed that I should set aside the findings of the court below and hold that the act complained of is altogether unconnected with the discharge of official duty and consequently the accused are not entitled to protection under sec. 197. A number of cases including a few Supreme Court cases and one of this Court in Hari Ram vs. B. P. Sood (5) were cited. It is unnecessary to discuss all these cases for the law on the point seems to be well settled; although the real difficulty is in the application of the principles of law to the facts of each case. The position of law as deducible from these cases may be summed up as follows : - (1) If sec. 197 is constructed too narrowly it can never be applied, because it is no part of the duty of a public servant to commit an offence and never can be. It is not the duty which is to be examined so much as the act because an official act can be per-rormed both in the discharge of the official duty as well as in dereliction of duty ( vide Shreekantiah Ramayya Munipalli vs. State of Bombay (6 ). (2) There must be a reasonable connection between the act and the discharge of official duty and the act must bear such relation to the duty that the accused could fay a reasonable, but not a pretended and a fanciful claim, that he did it in the course of performance of his duty (vide Matajog Dobey vs. H. C. Bhari (7) (3) Whether a particular act can be said to be done in the exercise of official duty or in the purported exercise of such duty is essentially and substantially a question which will have to be determined on the facts and circumstances of each case and it is neither easy nor possible to lay down any hard and fast formula for the ascertainment of this question. (vide Hari Ram vs. B. P. Sood (5 ). Applying these tests Mr. Chordia contended that the Rajasthan Panchayat Act clearly enumerates various obligatory and discretionary duties of the Panchayat under secs. 24 and 26 and there is no mention of a duty on the part of the Panchayat to issue a certificate. According to him the issuing of a certificate cannot be in any way connected with the discharge of the duties of the panchas. I regret I am unable to accept this contention. A Panchayat is a local self governing institution. It has been clothed with very wide powers and in my opinion it is quite possible to hold that the maintenance of the records of the residents within the Panchayat may very well be considered as a duty to be performed by the panchas either in the exercise of enumerated powers or in the exercise of powers incidental to the execution of powers specially conferred. At any rate the panchas can reasonably claim that such an act has been done in the purported discharge of the official duty. The act of Panchayat in calling for a report from Patwari, a collective consideration of the matter by the panchas, the use of the Panchayat seal all unmistakably point out that they were purporting to act in the discharge of their official duties and can reasonably make such a claim. The claim even though it may ultimately be found unacceptable on a strict consideration of the powers of the panchas cannot yet be said to be unreasonable. I accordingly have no hesitation in overruling this contention of Mr. Chordia. In the light of these discussions I have no doubt that the accused as Sarpanch and Panch are entitled to protection of sec. 197 and the trial court was justified in dismissing the complaint. Mr. Mahavir Chand had also addressed argument that the panchas being judges they can be entitled to protection even in respect of their administrative act. As I have held that the panchas are entitled to protection in their capacity as public servants I consider it unnecessary to decide this point. The order passed by the Sub-Divisional Magistrate in these circumstances is correct and needs no interference and the reference made by the learned Sessions Judge cannot be accepted. It is consequently rejected. . ;