Bapna, J. - (1.) THIS is a revision against an order of the City Magistrate Bikaner dated 8th May 1950.
(2.) ONE Molabux filed a complaint in the Court of City Magistrate Bikaner on 11th May 1949 against 34 persons for offences under secs. 447, 427, 148, 342, 166 and 109 I. P. C. on the allegation that the complainant had constructed a house at Bhinasar which was demolished by the accused without any authority. The complaint was filed against Champalal accused No. 1, President of the Municipal Board of Bhinasar, Kishan Gopal accused No. 2, Secretary of the Board, the employees of the Board, accused Nos. 10 to 25, Manoharlal accused No. 26, Deputy Commissioner Bikaner, Surja Ram accused No. 27, Sub-Inspector, and other Police Officers, accused Nos. 28 to 34. The complaint was that Champalal was a wealthy person and wanted to purchase the house of complainant which the complainant refused to sell. The complainant constructed a house on the old foundation but the said Champalal as President of the Municipal Board ordered its demolition and in compliance of that order the house was demolished by accused Nos. 2 to 25 with the assistance of accused Nos. 27 to 34. Accused No. 26, the Deputy Commissioner was accused of conspiring with Champalal and directing the Police Officers, accused Nos. 27 to 34, to assist in the demolition. The Magistrate recorded evidence under sec. 202 Cr. P. C. and dismissed the complaint holding that the case was of a civil nature. On revision, the High Court of the former covenanting State of Bikaner set aside that order and directed that the Magistrate should look into the evidence and see as to whether any offence had been made out and if so to issue process and proceed further according to law. On receipt of the file, the Magistrate ordered on 19th August 1949 that the case be registered and all the accused be summoned under secs. 447 and 427 I. P. C. On 6th October 1949, the attention of the Magistrate seems to have been drawn to Circular No. 5 of 1919 issued by the Cabine of Bikaner which required the Magistrate to seek permission of the Head of the Department before proceeding against a State servant and the Magistrate sent the copy of the complaint and the evidence recorded under sec. 202 Cr. P. C. to the Commissioner for permission to proceed against the Deputy Commissioner. The Commissioner wrote back in reply on the 28th March 1950 that the Indian Code of Criminal Procedure having been brought into force in Rajasthan, the Magistrate should direct the complainant to obtain the requisite sanction of the Government and that it was no longer necessary for the court to obtain the permission. On 8th May 1950 the City Magistrate recorded that sanction of the Government was necessary before cognizance could be taken of any offence alleged against Mr. Manoharlal former Deputy Commissioner of Bikaner (and since appointed Collector at Pali by the Government of Rajasthan), and as no such sanction was produced, the complaint could not be proceeded with. He accordingly dismissed the complaint. On revision the learned Sessions Judge of Bikaner maintained the order holding that as the complaint was a joint one against the accused, it could not be proceeded with even as against others in the absence of the requisite sanction to proceed against Mr. Manoharlal. The Complainant has come in revision. It was conceded that in the case of Manoharlal, sanction of the Government was necessary but it was argued that no sanction was necessary in the case of other accused and the court should have dismissed the complaint against all the accused. It, however, appears that the court cannot also proceed against Mr. Champalal, President of the Municipal Board, without a proper sanction. Under sec. 197 Cr. P. C. a court cannot take cognizance of an offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty without sanction of the Government if he is not removable from his office except by the sanction of the Government. The provisions relating to the appointment of the President and his removal are contained in sec. 20 and sec. 16 of the Bikaner Municipal Act (Act No. VI of 1923 ). Under sec. 20, the President is to be appointed either by His Highness' Government, or if Government so direct, elected by the Board and confirmed by His Highness' Government. The power of removal of the President was also vested in the Government of His Highness of Bikaner by sec. 16 of the Act. By integration, the power so vested in the Government of His Highness of Bikaner, now vests in the Government of the United State of Rajasthan. The President, thus, can be appointed or removed by the Government of the State only. The meaning of the words "public servant" is clear from the amendment made to the Bikaner Municipal Act, by Bikaner Municipal (Amendment) Act, 1940 (Act No. III of 1940 ). By sec 2 of the Amendment Act, every Municipal Commissioner is deemed to be a public servant within the meaning of sec. 21 of the Bikaner Penal Code. The court, therefore, could not also take cognizance of any offence against Mr. Champalal purporting to have been committed while discharging his duties. As regards the other employees of the Municipal Board and the Police Officers or other persons, they are not protected under sec. 197 Cr. P. C. It was contended by learned counsel for the accused that the want of sanction against one of the accused divests the court of jurisdiction to take cognizance against others also. Reliance was placed on Emperor vs. Fazal Rahman (A. I. R. 1937 Peshawar 52) and Newbould vs. Emperor (A. I. R. 1936 Lahore 781 ). In both these cases, however, the accused against whom sanction was necessary had been tried along with others and the trial was held to have been vitiated by virtue of the provisions of sec. 530 of the Code. Sec. 530 lays down among other things that if any Magistrate, not being empowered by law in that behalf, tries an offender, the proceedings shall be void. As the proceedings relating to the conviction of the other accused were the very same proceedings taken by the Magistrate against the particular accused who could not be proceeded with without proper sanction, it was held that the proceedings having become void there was no separate material on which the conviction of the other accused could be based. The proposition underlying these two cases is, however, not applicable to the present case as no evidence has yet been recorded in the presence of the accused. Where no evidence has been recorded, there have been no proceedings against the accused who could not be proceeded with without proper sanction, and the applicability of sec. 530 Cr. P. C. has not arisen in this case. The court could, therefore, proceed against accused Nos. 2 to 25 and 27 to 34. Before, however, doing so, the court has to apply its mind in the manner directed by the High Court of the former covenanting State of Bikaner. A perusal of the order of 19th August 1949 by which all the accused were directed to be summoned shows that no compliance with the order of the High Court was made. The order directing that all the accused be summoned to answer the charges under secs. 447 and 427 I. P. C. is therefore also set aside In this case a large number of persons have been accused of various offences and in para (3) of the complaint it is mentioned that the President of the Municipal Board gave an order to the prejudice of the complainant contrary to law. Again in para (4) it is mentioned that the Municipal Board gave a notice of demolition of the building. The order and the notice have however not been produced and it will be for the Magistrate to see what the effect of this order would be. Under sec. 202 Cr. P. C. a Magistrate is authorized, before issue of process, to make an enquiry for the purpose of ascertaining the truth or falsehood of the complaint. This is a healthy provision to check frivolous complaints and, if not carefully followed, may lead to great injustice, particularly in cases where a large number of accused are charged with various offences, and it may some-times happen that the failure of the prosecution at the end may be of little significance to the accused as the complainant may be a man of straw and may not be in a position to meet a civil liability arising out of malicious prosecution. While every opportunity should be afforded to a complainant who has been unlawfully wronged by the tyranny of any officer, it is equally the business of the court to see that prima facie there are grounds for proceeding against public officers. In the case of public officers there are certain general exceptions in the Penal Code. These are contained in sec. 76 to sec. 79 I. P. C. which a court in a case of this nature has to keep in view. The revision is, therefore, allowed and the order dismissing the complaint is set aside. The case will go back to the City Magistrate, Bikaner, who will now examine the material on record or may start further enquiry as he considers necessary and then summon such of the accused except Champalal and Mr. Manoharlal against whom he finds that there is ground for proceeding further according to law. In order that the case be expedited, attention of the Magistrate is also drawn to sec. 205 of the Code so that in case he is of opinion that all the accused or some of them be summoned, they may be permitted to appear by pleader and the enquiry or trial completed in as short a time as possible. .;