BAPNA, J. - (1.) THIS is a revision against an order of the Learned First Class Magistrate, Bhawani Mandi, dated 28th April, 1951, by which he declined to take cognizance of a case against certain persons on an interpretation of sec. 197 of the Code of Criminal Procedure. A revision to the learned Additional Sessions Judge was unsuccessful.
(2.) THE facts of the case are that the complainant Chauthmal filed a complaint in the court of Sub-Divisional Magistrate, Brijnagar, against the accused, who were officers of the Municipal Committee, Bhawani Mandi. Panna Lal accused No. 1 was the Secretary, Rajendrashanker accused No. 2 was the Sanitray Inspector, Bhanwarlal Chaudhry accused No. 3 was its President, Phoolchand Bhodhraj, and Kanwar Narainlal, accused Nos. 4, 5 and 6, were its members. THE allegations were that the complainant had got certain repairs and alterations made to his house situated at Bhawani Mandi some time in January, 1950. THE accused Nos. 3 to 6 with intention to cause loss and injury to the complainant ordered accused Nos. 1 and 2 to demolish the alterations and repairs, and the accused Nos. 1 and 2 carried out that order on the 14th of January, 1950. It was alleged that the accused were not empowered to make the demolition, and had in the act also committed trespass in the house of the complainant. It was prayed that the accused be dealt for offences under secs. 427 and 451 of the Indian Penal Code. An objection was raised on behalf of the accused that they were public servants not removable from office except by or with the sanction of the local Government, and that the alleged action had been done while discharging their official duties. It was contended that the complaint had not obtained any sanction under sec. 197 of the Code of Criminal Procedure, and, therefore, the Magistrate had no jurisdiction to take cognizance of the offence against the accused. It was conceded by learned counsel appearing for the parties in lower court as also in this court that the provision of the U. P. Municipalities Act were applicable to the Municipal Committee of Bhawani Mandi by certain extensions of that Act made by competent authority. The learned Magistrate held that Bhanwarlal, as president of the Municipal Committee, was only removal by or with the sanction of the local Government, and the other accused were not protected, but as the trial was joint trial, it could not proceed without a proper sanction having been obtained for the prosecution of Bhanwarlal. He accordingly dismissed the complaint on the ground of want of sanction. The learned Sessions Judge also took the same view on revision. Learned counsel for the petitioner argued that under sec. 40 of the U. P. Municipalities Act, 1916, in the case of a Municipality other than a city Municipality the Commissioner was authorised to remove any member of the board, if certain circumstances mentioned in clauses (a) to (f) of that section existed. The Local Government, as provided in sub-sec. (3) of sec. 40, could also remove a member if he had so flagrantly abused in any manner his position as a member of the board as to render his continuance as a member detrimental to the public interest. It was argued that leaving aside that contingency, the power was vested in the Commissioner to remove any member of the board. It was further argued that a chairman or president did not stand on any higher footing, but was also removable by the Commissioner for the reasons mentioned in sub-sec. (1) of sec. 40. It was conceded by learned counsel for the accused that the municipal board in this case was not that of a city, and the Commissioner had power to remove any member of the board in the circumstances mentioned in sub-sec. (1 ). But it was contended that it was only in certain circumstances that the Commissioner could remove a member was vested in the Local Government and, therefore, it was the Local Government which alone could be considered to have the power of removal of a member. In my opinion, the contention raised by learned counsel for the accused is not correct. Sec. 197 Cr. P. C. only protects a limited class of public servants, who are not removable from their office '"'save by or with the sanction of a Provincial Government or the Central Government. " In case that power is delegated to a subordinate authority, it cannot be said that they cannot be removed except by or with the sanction of the Provincial f Government or of the Central Government. Although the Commissioner is only empowered to remove any member of the board in certain circumstances, it is clear that the power of dismissal is not exclusively to be exercised by the Provincial Government. It can, under certain circumstances, be exercised by an authority subordinate to the Provincial Government. The members of the board cannot, therefore, be granted protection under sec. 197 of the Code of Criminal Procedure. The above view finds support in B. Sohan Lal vs. M. Mubarak Ali Khan (1) (AIR 1939 All. 705. ). Learned counsel for the accused next contended that the position of Bhanwarlal, who was the president of the board, was different, inasmuch as a provision was made by sec. 48 of the U. P. Municipalities Act, 1916, for his removal by the Local Government. Sec. 40 however does not make any distinction between a chairman or a president of the board and a member of that board. So that while the Local Government may remove a chairman in certain circumstances mentioned in sec. 48, the Commissioner has also the authority to remove him in certain circumstances mentioned in sec. 40. There is a note at the end of sec. 40 in the Municipal Manual prepared by the Government of U. P. that a chairman remove under this section thereupon ceases to be chairman under sec. 48 (1 ). In my opinion, the two courts have not come to a correct conclusion on the application of sec. 197 of the Code of Criminal Procedure. It may be mentioned that so far as accused Nos. 1 and 2 are concerned, they are removable by the municipal board itself under sec. 67 and 74 of the Act. The revision is, therefore, allowed, the order of dismissal of the complaint passed by the Sub-Divisional Magistrate, Bhawani Mandi, dated 28th of April, 1951, is set aside, and the case is sent back to that court for further proceedings according to law. .;