K. S. LODHA, J. - (1.) THESE two applications under section 482 Cr. P. C. arise out of the same matter and, therefore, they can ©conveniently be disposed of by a single order.
(2.) THE facts giving rise to these applications are as under : Non-petitioner no. 2 in both the cases Licchi Ram filed complaint in the court of Munsif and Judicial Magistrate, Sardarshahar on December 10, 1982 against the petitioners in these two cases alleging that the petitioners had, on the night of October 24, 1984 at about 12, unlawfully entered the 'guwadi' of the complainant, armed with Gandasi, Kassi, Jaih etc. and demolished the Guwadi and destroyed the grain lying therein. THEy also uprooted the fencing, and removed the utensils, sewing machine, beddings, and other articles lying there and, thus, committed offences under sections 392, 379, 380, 147, 148/149, I. P. C. etc. This complaint was forwarded to the Police Station. Bhanipura by the learned Magistrate for investigation. THE S. H. O. thereupon, registered a case against the petitioners and started investigation. After completing the investigation the police filed a final report stating therein that as a matter of fact, the complainant or his father had trespassed upon the public way by making encroachment obstructing the same, whereupon the complaint was filed by the villagers against them and the Panchayat, after making an enquiry and giving notice to the complainant, for removal of the obstructions, took proceedings for removing the same but the complainant had failed to comply with the notice. It was also mentioned that the obstruction was removed after informing the Collector and the Superintendent of Police and after obtaining the police assistance. THE complainant was, therefore, false and, while filing the final report the S. H. O. requested that the proceedings under sec. 211, I. P. C. may be initiated against the complainant. THE complainant however, filed a protest petition, which was treated as a complaint by the learned Magistrate. THE learned Magistrate, after taking evidence of the complainant and the witnesses, took cognizance of the offences under sections 147, 380, 456 and 427 read with 149, I. P. C. against the petitioners. It may be mentioned that petitioner Manphool in Petition No. 46/87 is a Sarpanch of Gram Panchayat, Ratusar and petitioner Gaurisharkar in Petition No. 10/87 is a Panch of that Panchayat. Petitioners No. 7, 8 and 9 in Petition No. 10/87 are among the complainants, who had complained about the obstructions raised by non-petitioner no. 2 before the Panchayat. Petitioners preferred two separate revisions against the order of the learned Magistrate dated August 6, 1983, by which the cognizance was taken against them but the learn d Sessions Judge, Churu rejected the revisions by two separate orders dated November 23, 1984 and July 18, 1986. Hence these two applications. I have heard learned counsel for the petitioners, learned Public Prosecutor and the learned counsel for non-petitioner no. 2, and have gone through the record. The only contention raised before me by the learned counsel for the petitioners in both the cases is that the learned Magistrate had no jurisdiction to take cognizance against the petitioners without the sanction of the State government, as envisaged by sec. 197, Cr. P. C. inasmuch as it clearly appears that the Sarpanch Manphool and Panch Gauri Shankar were purporting to act in discharge of their duties as Panchas of the Gram Panchayat in removing the obstructions, caused by non-petitioner no. 2 by a public way. According to the learned counsel the learned Magistrate was aware of the provisions of sec. 197, Cr. P. C. but failed to apply the same and the learned Sessions Judge also committed the same mistake, as, probably, both of them were misled by reading the provisions of sec. 79 of the Rajasthan Panchayat Act, 1953 (for short 'the Act') and Sec. 197, Cr. P. C. together, thinking that they were analogous, whereas, as a matter of fact, the two provisions catter for two different situations. Learned counsel for non-petitioner no. 2 however, urged that the petitioners cannot be allowed to raise the question of necessity of sanction under section 197, Cr. P. C. for the first time before the revisional court or this court under sec. 482, Cr. P. C, but hey should appear before the learned Magistrate and place necessary material before him in support of this plea so that complainant may also have an opportunity of rebutting the same and, thereafter, the Magistrate may decide whether the cognizance could not be taken without sanction. I have given my careful consideration to the rival contentions. So far as the objection raised by the learned counsel for non-petitioner no. 2 goes, it was, of course, open to the petitioners to appear before the learned Magistrate and challenge the order taking cognizance against them in the absence of sanction under sec. 197, Cr. P. C , but a perusal of the order of the learned Magistrate clearly shows that the provisions of sec. 197, Cr. P. C. were present in his mind as he has referred to that provision in the order dated August 6, 1983. That being so, it will now be futile to compel the petitioners to appear before the learned Magistrate and raise this objection before him. As a matter of fact, sec. 197, Cr. P. C. casts a duty on the Magistrate to see before taking cognizance of an offence against the accused-persons, that there is no legal bar against the cognizance being taken. The very opening words of sec. 197, Cr. P. C. indicate this and it further appears that there was material before the learned Magistrate by way of final report filed by the police to put him on the guard that the matter was one, in which, probably sec 197, Cr. P. C. may be attracted. It was, therefore, the duty of the learned Magistrate to consider the matter in that respect in proper perspective. The learned Magistrate has observed that the fact that the demolition of the 'guwadi' had taken place in the night and the goods lying therein had been removed and placed at the house of the Sarpanch Manphool and not at the Panchayat Bhawan, prima facie, shows that the proceedings were not bona fide. He further, observed that sec. 79 of the Act and sec. 179, Cr, P. C. then come to the aid of the Sarpanch and his men when the action complained of has been taken in legal and bonafide manner. Sec. 79 of the Act of course provides complete protection to the Sarpanch and against any civil or criminal action in respect of anything lawfully and in good faith done under the Act or any rule or by-laws made thereunder. But, sec. 197 Cr. P. C. does not speak of such a complete protection. It only lays down 'no court shall take cognizance of any offence alleged to have been committed by public servant while acting or purporting to act in the discharge of official duty except with previous sanction. . . " It does not lay down that the action must have been taken in the legal and bonafide manner. What is required to attract sec. 197 is that the alleged offence must have been committed by the public servant while acting or purporting to act in discharge of his official duty. Here, learned counsel fur the petitioners, does not claim a complete protection under section 79 of the Act but claims protection under section 197, Cr. P. C. and where there was some material before the learned Magistrate to show that the offence alleged to have been committed by the petitioners was one, which may have been committed by the Sarpanch and the Panch and the other persons acting under their directions in discharge of duty as a Sarpanch and Panch, or atleast purporting to be in discharge of such duties. The final report tiled by the police clearly indicated that from the material on record of the Panchayat, it appeared that the complainant himself had encroached upon a public way whereupon, a complaint had been filed against him and the Panchayat made an enquiry, inspected the site and gave notice to the encroacher to remove the encroachment and on failure on his part to do so, steps for removal of the encroachment had been taken by passing a Resolution and after informing the Collector and the Superintendent of Police, and obtaining police assistance. The learned Magistrate should certainly have stayed his hands before taking cognizance against the petitioners in the absence of sanction under sec. 197, Cr. P. C. If he was not satisfied on. the basis of the final report itself, he should have made enquiries in this respect to satisfy himself whether Sarpanch and Panch and the other accused could be said to have acted in discharge of their official duties, or could atleast be said to have purported to act in discharge of such duties.
(3.) IT has already been held by this Court in Dal Chand Vs. the State of Rajasthan (1) that the Sarpanch and Panch are public servants not removable from their offices save by or with the sanction of the State Government, while relying upon two earlier decisions of this Court in Pukh Raj Vs. Uramaidram (2) and Ramdutt vs. State of Rajasthan (3 ). The same ease was further considered the question as to how an act can be considered to be done in discharge of purported discharge of the duty by the Sarpanch or Panch. Reliance in this connection was placed on Hori Ram Singh Vs. Emperor (4) and H, H. B. Gill Vs. King (5 ). The Court further observed:- "at any rate, the accused-petitioner acted in pursuance of this order or under a mistaken belief as to the existence of such duty that in compliance with the orders passed by the Panchayat as well as the Panchayat Samiti the possession of the complainant over the land had to be removed. . . . . . . . . . IT cannot be said that the accused petitioners were not acting in the course of performance of their duty. The offence alleged to have been committed must be held to be in respect of an act done or purported to be done in the discharge of an official duty and not in a private capacity. " In my opinion, this case fully applies to the facts and circumstances of the present case. Learned counsel for non-petitioner no, 2 urged that the case of non-petitioner no. 2 was that his brother was holding a 'patta' of the land in dispute and was in possession thereof and, therefore, the Panchayat had no jurisdiction to enter upon the private land and demolish the construction. As soon as the Patta was produced before the Panchayat, it should, have stayed its hands, and any further act on their part to demolish the construction was altogether illegal and cannot be said to be carried out in discharge or purported discharge of the duty of the Panchayat. I am unable to accept this contention. The mere raising of a dispute about title would not altogether debar the Panchayat from taking action for removal of encroachment if the Panchayat is not, prima facie, satisfied about the title. In this connection, reliance may be placed upon the ease (6), wherein it has been observed that mere raising of a dispute by a private person, where the Panchayat is taking action under sec. 24 (7) or sec. 26 (h) is not enough to oust the jurisdiction of the Panchayat. The Panchayat must, before its jurisdiction is ousted, be satisfied that the dispute has some foundation prima facie, and if the Panchayat is satisfied that there is some foundation, the Panchayat should stay its hands and if, on the other hand, the Panchayat is of the opinion that the dispute raised is purely imaginary and has no foundation what soever in support of it, the Panchayat is not bound to stay its hands simply because some person has thought it fit to raise an imaginary dispute. The same view has also been taken in Pukh Raj's case (Supra ). In the present case, the Panchayat did make an enquiry and was of the opinion that the alleged Patta was of no avail to the petitioner and that the land was a public lane, on which the petitioners had raised an obstruction. I am, thus, clearly of the opinion that there was sufficient material before the learned Magistrate to come to the conclusion that the Panch and the Sarpanch of the Panchayat were acting or atleast purported to act in discharge of their official duties and, therefore, for this action, no cognizance could be taken for any offence without the previous sanction of the State Government, under a misapprehension that sec. 197, Cr. P. C. could be applicable only if the act has been done purely in legal and bonafide manner. As already pointed above, this is not the requirement of sec. 197, Cr. P. C. In this respect, it will be profitable to refer to a decision of this Court in Hari Ram Vs. B. P. Sood (7) where the scope of sec. 197 Cr. P. C. has been explained. It may be stated here that when the Sarpanch and the Panch cannot be proceeded against in the absence of the sanction under sec. 197, Cr. P. C, the persons acting under their directions also could not be proceeded against. ;