Mohd. Yamin, J. - (1.) Heard Suresh Chand Sharma, respondent No.2, lodged a report at police station Dada Badi, Kota on 17.11.95 at 6.30 p.m. alleging that despite repeated requests Kota Nagar Nigam has failed to provide basic facilities of cleanliness in his locality. The public park is situated infront of his house where heap of garbage had collected and despite many requests to the corporation it was not removed. On 16th October at about 7.30 p.m. his wife was going on the road but there was no street light at 7.30 p.m. A scorpion had beaten her on the road. It was also alleged that poisonous insects were roaming on the road. It was further alleged that there was negligence of duty on the part of the staff of Municipal Corporation and they were not removing the public nuisances. The police registered a case under section 269 and 270 of IPC and started investigation. After investigation the police submitted final report but by impugned order, learned Magistrate took cognizance against the petitioner who is Mayor of Kota Municipal Corporation for the offences under section 269 and 268 IPC. The petitioner has come in this Court under Section 482 Cr.RC.
(2.) Learned counsel for the petitioner submitted that according to Section 87 of the Rajasthan Municipalities Act, 1959 (in short the Act of 1959') every member, officer or servant shall be deemed to be a public servant within the meaning of Section 21, of the IPC and, therefore, the petitioner is protected by the provisions of Section 197 Cr.P.C. He also cited AIR 1960 Rajasthan 173, Shrilal v. Manmath Kumar Misra & Anr. , wherein it was held for the purpose of Rajasthan Town Municipalities Act, 1951 that the Chairman Municipal Board was a public servant and the prosecution was barred against him without sanction of the State Government. In that case the petitioner instituted a suit against a municipal board and obtained an interim injunction restraining the board from demolishing a wall and though this order was served on the chairman of the board the wall was demolished by the other accused. The chairman and the executive officer of the board were alleged to be party of a conspiracy to demolish the wall. It was held that the impugned act of the chairman and the executive officer assuming that they were individually responsible for it was an act which was clearly relatable to the discharge of their official duties and therefore they were entitled for protection under section 197(1) of the old Cr.P.C. He has also submitted that even on the basis of evidence on record the Mayor cannot be criminally held liable for the offence.
(3.) On the other hand, learned counsel for the respondent No.2 has submitted that it is the petitioner who is criminally liable for the omission or negligence of not getting the heaps of garbage removed. His submission is that it is the Mayor who is ultimately responsible for all the acts/omissions on behalf of the corporation. Therefore, he has tried to support the' order of the learned Magistrate.;