M.L.SHRIMAL, J. - (1.) THIS revision petition is directed by Gopaldass and eight other against the order of the Additional Sessions Judge, Jalore dated March 28, 1973 whereby he set aside the order of discharge and reminded the case to the trial Magistrate for holding further inquiry into the matter and passing fresh orders according to law.
(2.) THE fasts leading to this revision petition are that on August 12, 1966 at 5 00 p.m. the accused demolished the construction raised by the complainant and removed the material from the scene of occurrence. The complainant filed a complaint to the court of Sub divisional Magistrate Balotra and lodged a first information report at the police station, Balotra Later on, both these proceedings were consolidated. The petitioners along with others were ordered to be prosecuted under Sections 395, 147, 447, 342, 427 read with Section 149 I.P.C. In the course of proceedings an objection was taken by the accused on June 3, 1967 against their prosecution on the ground that the Panchas of the Gram Panchayat were not rermoveable save by or with the sanction of the State Government, they could not be prosecuted without prior sanction of the Government by virtue of Section 197 Cr.P.C. It was also averred that the accused in the capacity of Panchas and the employees of the Panchayat acted Act, 1953 hereinafter referred to as 'the Act' and their prosecution was barred under Section 79 of the Act. In support of their contention the accused submitted thirteen documents along with the application dated June 3, 1967 Tue record shows that a copy of the list of the documents relied upon by the accused was also given to the complainant for submitting a reply. The complainant did not file any reply to the application dated June 3, 1967. The preliminary objection raised by the accused found favour with the learned Sub -divisional Magistrate, who held that the prosecution of the accused was barred by Section 197 Cr.P.C. and Section 79 of the Rajasthan Panchayat Act, 1953. The learned Magistrate quashed the proceedings and discharged the accused by his order dated September 25, 1970. A revision petition was filed by the complainant in the Court of Additional Sessions judge, Jalore against the order of the Sub -divisional Magistrate, Bdlotra.
(3.) THE learned Additional Sessions Judge, Jalore held that the powers under Section 17 of the Act were delegated to the Collector by notification No. F4(132)SC/A/58/417 dated January 1, 1962. He placed reliance on Kalu v. State of Rajasthan 1972 RLW 230 and observed that the accused were not entitled to the protection of Section 197 Cr.P.C. As regards the protection of Section 79 of the Rajasthan Panchayat Act, the learned Judge held that it depended on the decision of certain questions of facts which required inquiry and leading of evidence by both the parties. With these observations me learned Additional Sessions Judge set aside the order of discharge and remanded the case to the trial court for holding further inquiry and giving a fresh finding on the point whether Section 79 of the Act is attracted or not. The accused have come up in revision before this Court challenging the order dated March 28, 1973 of the Additional Sessions Judge, Jalore.;