- (1.) THIS is a reference by the Additional District Magistrate, Udai-pur, recommending that the order of the First Class Magistrate, Rajsamand dated 21. 9. 57 holding that the applicants are not entitled to the protection under sec. 197 Cr. P. C. be set aside.
(2.) THE facts which have given rise to this application are these. THE Village Panchayat Arni ordered the demolition of a platform which they found to have been built on a public way encroaching upon it. THE owner of the platform did not demolish it. THEreupon they themselves proceeded to demolish it along with some employees of the Panchayat. A complaint under secs. 148,440,454,390 and 500 I. P. C. was filed against them in the court of the learned Magistrate. THE applicants who are the accused persons filed an application claiming protection under sec. 197 Cr. P. C. THE learned Magistrate held that they were not entitled to such protection. He did not give any reason in support of his finding. THE learned Additional District Magistrate was of the opinion that they were so entitled and has consequently made this reference. He too has not given any reason in support of his recommendation. Sec. 197 Cr. P. C. runs as follows: - "197. (1) When any person who is a Judge within the meaning of sec. 19 of the India Penal Code, of when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or pur porting 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 employed in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State, of the State Government;" A Panch is no doubt a judge within the meaning of sec. 19 of the Indian Penal Code when acting in his judicial capacity. Sec. 197 Cr. P. C. only applies of offences alleged to have been committed by person while acting or purporting to act in the discharge of his official duty as a judge. The Panchas acted in an administrative capacity in passing the order of demolition of the platform. They cannot be said to have acted in their official capacity as judges when they proceeded to execute the order which they had themselves passed. Under the circumstances it cannot be said that they are entitled to protection under sea 197 Cr. P. C. They are not public servants who are removable from their office only with the sanction of the State Government. The obligatory duties of the panchayats are defined in sec. 24 of the Rajasthan panchayat Act, 1953. Under clause (7) of that section the removal of encroachments on public streets, is one of their obligatory duties. Under sec. (l) (ii) they have administrative power to require the owner of any building to remove any encroachment on a public way Under sec. 27 (1) they have power to impose fine for disobeying the administrative order passed by them and under clause (2) of that section if any work required to be done by the panchayat under the provisions of sec. 26 is not executed within the period specified in the notice for such execution the panchayat is empowered to cause such work to be executed itself, and recover the cost from the owner. Sec. 79 of the Panchayat Act gives protection to the Panchas and officers and servants of the Panchayats against acts performed by them lawfully and in good faith in discharge of their duty. The learned Magistrate should therefore consider whether the applicants are entitled to protection under sec. 79 (1) of the Rajasthan Panchayat Act. If he finds that the case is covered by this provision the Panchas and the officers and servants of the Panchayat have complete immunity from prosecution and the complaint should be dismissed. If on the other hand he finds that the act was not done lawfully and in good faith in discharge of duty then he should proceed with the case against the applicants according to law. The reference is accordingly rejected. Let the record be returned immediately. .;