KOCHHAR, J. - (1.) THE brief facts giving rise to this petition, under section 482 of the Code of Criminal Procedure (the Code), against the order dated 23. 1. 1992 passed by the learned Additional Chief Judicial Magistrate, Hindaun City, are as under : -
(2.) THE petitioner-Jagdish Prasad Sharma has been working as an Executive Officer in the Municipal Board, Hinduan City and Gopal. respondent No. l, has been working as a Sweeper in the said Board under him. THE respondent No. 1 filed a complaint before the Additional Chief Judicial Magistrate, Hindaun City on 22-7-1990 with the allegations that he had gone to the office of the petitioner on 11-7-1990 to represent the case of Mr. Fabuli, a woman sweeper, but he was abused and insulted and was addressed as 'bhangi' by the petitioner, who had injured his feelings and had committed an offence punishable under section 7 of the Protection of Civil Rights Act, 1955 (the Act ). THE Magistrate forwarded the matter to the Police Station, Hindaun where the case was registered. After investigation, the police submitted the final report to the effect that the matter was investigated and the allegation in the complaint was not substantiated. When the police report came up, the learned Magistrate has passed the impugned order dated 23-1-1992 stating that the contents of the complaint disclose that the petitioner has committed the offence punishable under section 7 of the Act. He was thus summoned by the learned Magistrate. Feeling aggrieved, the petitioner has approached this court by filing this petition. The petition was admitted on 13-3-1992 and, thereafter, the notice was issued to the respondent No. 1 as also to the State of Rajasthan. I have heard Shri S. R. Surana, the learned counsel for the petitioner, Shri B. L. Avasthi, the learned P. P. for the State of Rajasthan and have also perused the impugned order. Since none has appeared on behalf of the respondent No. 1, 1 did not have the advantage of hearing any one on his behalf. Shri Surana has contended that the report/complaint had been falsely filed by the respondent No. 1 as the petitioner had transferred him from octroi post to Safai karmchari in the office and he was aggrieved thereby. He has further contended that the applicant-petitioner is a public servant within the meaning of section 197 of the Code and no sanction of the State Government having been obtained the cognizance could not be taken by the learned Addl. CJM. Section 307 of the Rajasthan Municipalities Act, 1959 (the Municipalities Act) provides that the State Government shall appoint the officers and Secretaries mentioned in sub-sections (i) & (ii) and an Executive Officer is one of those officers. In view of sub-section (4) of Section 307 of the Municipalities Act an Executive Officer cannot be dismissed except by the State Government, who is the appointing authority. Section 87 of the Municipalities Act provides that every member, officer or servant, and every lessee of any municipal tax, and every servant or other employee of any such lessee shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860. The petitioner is, therefore, a public servant within the meaning of section 21 of the Indian Penal Code. Sub-section (1) of section 197 of the Code of Criminal Procedure, 1973, on which reliance has been placed, reads as under: - "197. Prosecution of Judges and public servants.- (l) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction - (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. "
(3.) IN view of section 307 of the Municipalities Act the appointing authority of the applicant-petitioner is the State Government and, as such, he can be removed from his office by the appointing authority which is the State Government. It is also clear from the complaint itself that the act complained against was stated to have been done by the petitioner while purporting to act in the discharge of his official duties as an Executive Officer. It appears that without noticing the provisions of sections 87 and 307 of the Municipalities Act and section 197 of the Code the learned Magistrate has taken cognizance of the offence. Since no cognizance could be taken against the petitioner without the sanction of the State Government, the impugned order is without jurisdiction and has to be set-aside. Consequently, this petition is accepted, the impugned order dated 23-1-1992 is set-aside and the proceedings against the petitioner are quashed. .;