A. K. MATHUR, J. - (1.) THIS revision petition is directed against the order passed by the learned Additional Sessions Judge No. 2, Hanumangarh dated 25-3-1987 whereby he has held that the accused Birbal Ram who is a Sarpanch cannot seek the protection of Section 197 Cr. P. C. and the court take cognizance without sanction of the Government for prosecution of acts done by him in discharge of his official duty.
(2.) THE brief facts giving rise to this revision petition are that the petitioner is a Sarpanch of the Gram Panchayat, Goluwala Tehsil Pilibanga District Ganganagar and in discharge of his official duty went to the house of one Smt. Jamna and Ramchandra and uprooted them in pursuance of the resolution of the Gram Panchayat on the ground that Modu Ram who owns the present land in dispute which was allotted to him way back in the year 1971 should be restored possession of the land in dispute. Modu Ram moved an application before the Gram Panchayat that possession of the land in disputed allotted to him may be handed over to him. It was found that this very piece of land was allotted to one Smt. Jamna and Ram Chandra in the year 1982. When this fact came to the notice of the Gram Panchayat that this land has been allotted to Modu Ram way back in the year 1971 and the same piece of land has been allotted to Smt. Jamna and Ramchandra without any payment of cost, therefore, a notice was issued to Smt. Jamna and Ramchandra on 4-9-1982 that they must remove their possession from the land in dispute within a period of 15 days else their possession will be removed with the help of the police. THEreafter, no action was taken and Modu Ram approached to the Pradhan of the Panchayat Samiti and the Pradhan in turn directed the Gram Panchayat that since the land has been allotted to the petitioner Modu Ram who is from backward class, still possession has not been restored to him, therefore, possession should be restored to him. THEreafter, a request was made by the Sarpanch of the Gram Panchayat to the S. H. O. , Police Station, Pilibanga for police assistance for removing Smt. Jamna and Ramchandra who are in possession of the land in dispute. On 13-9-1982 the S. H. O. Police Station, Pilibanga directed the ASI Sri Bhagwan Singh to assist the Gram Panchayat in getting the land-vacated. In pursuance of this ASI Bhagwansingh along with Birbal Ram and others went to the spot and got the land vacated. THEreafter, a complaint was filed by the non-petitioners Smt. Jamna and Ramchandra before the police as well as before the Collector, Sri Ganganagar, but without any result. THErefore, a complaint was filed in the court of Munsif& Judicial Magistrate, Suratgarh and the learned Munsif & Judicial Magistrate after recording the statements of the witnesses took cognizance against the petitioner Birbal Ram. as well as the ASI Bhagwansingh and others under Sections 436, 148, 149, and 504 IPC. THE notices were issued and thereafter the petitioner and ASI Bhagwan Singh were committed to the Court of Sessions and during the course of the trial an objection was raised before the learned Additional Sessions Judge that since Birbal Ram, Sarpanch and Bhagwan Singh, ASI being public servants cannot be prosecuted without previous sanction from the competent authority under Section 197 Cr. P. C. THE learned Additional Sessions Judge after considering over the matter overruled the objection and directed that both the accused persons are not entitled to protection under Section 197 Cr. P. C. Aggrieved against this order, the present revision petition has been filed by Birbal Ram for quashing the order dated 25-3-1987. Mr. Bhagwati Prasad, learned counsel for the petitioner submits that Birbal Ram being Sarpanch of the Gram Panchayat is a public servant and he is entitled to the protection under Section 197 Cr. P. C. as he acted in purported exercise of his official duty in executing the orders of the Gram Panchayat for restoring the possession to the original owner namely Modu Ram who belongs to backward class. Learned counsel submits that allegations regarding abuse and burning are too vague. Learned counsel further submits that if the Sarpanch has gone along with a pistol that too also cannot be said to be in excess of the powers of the Sarpanch. Learned counsel has invited my attention to Section 26 of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as 'the Act,) which lays down that Sarpanch being the Chief Executive of the Gram Panchayat has a duty to see that orders of the Gram Panchayat are executed properly. More-so, a direction was issued from the Pradhan of the Panchayat Samiti to get the land restored to the original owner. Learned counsel submits that under Section 26 of the Act a duty has been cast on the Panchayat to do all acts necessary for and incidental to the execution of its duties. In the purported exercise of his duties the Sarpanch has sought the police help for execution of the orders of the Gram Panchayat that the land in question should be restored to Modu Ram and in that exercise of the powers Smt. Jamna and Ram Chandra were evicted from the land in dispute. In support of his contention, learned counsel has invited my attention to Dal Chand vs. The State of Rajasthan (1) and Sobha Ram vs. State of Rajasthan (2 ). As against this, Mr. Jain, learned counsel for the non-petitioners submits that in fact, it was a civil dispute and the Gram Panchayat could not have cancelled the patta granted in favour of the non-petitioners. Learned counsel further submits that the acts done by the Sarpanch and the A. S. I. were not in the purported exercise of their powers. Learned counsel submits that abusing and burning of the house of non-petitioners does not come in the purported exercise of the powers of the Sarpanch as well as the A. S. I. In support of his aforesaid contention, learned counsel has invited my attention to Pukhraj vs. State of Rajasthan (3); Prabhakar vs. Sinari Shankar Anant Verlekar (4); Bhagwan Prasad Srivastava vs. N. P. Mishra (5) and P. Arulswami vs. State of Madras (6 ). It is true that neither the Sarpanch nor the A. S. I, has powers to resort to abusing or burning of some one's house. But a public servant has a power to resort to reasonable action so as to implement the orders passed by the competent authority. In Prabhakar V. Sinari's case (Supra) it was observed by their Lordships of the Supreme Court as under: - "it does not matter if the acts were strictly necessary for the discharge of the duty. What has to be found out is whether the act and the official duty were so inter related that one could postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation. " In the present case, the Sarpanch as well as the A. S. I. went on the spot to evict Smt. Jamna and Ramchandra and certain unparliamentary language might have been exchanged that cannot be said to be a reason to deny a public servant the protection as envisaged in Section 197 Cr. P. C. So far as the question of burning of the house is concerned, I have seen the photographs and found that the allegations of burning appear to be vague. Therefore, it cannot be said that both the public servants have not acted in discharge of their official duties. As a matter of fact, there is no specific provision in the Panchayat Act empowering the Sarpanch to go on the scene but under Section 26 of the Act since the Sarpanch is the Chief Executive of the Gram Panchayat, therefore, it is his duty to see that the orders of the Panchayat should be implemented. Accompanying of the Sarpanch himself with police and other persons for removing the trespassers like Smt. Jamna and Ramchandra cannot be said to be an act beyond the discharge of his official duties.
(3.) MR. Jain, learned counsel for the non-petitioners has invited my attention to the observations made in Pukhraj's case (Supra) and Bhagwan Prasad Srivastava's case (Supra ). Both these cases deal with the sanction and it has laid down the parameters as to how sanction should be examined when an official acts in discharge of his duties. The ratio which has been laid down is that the officers who discharge their duties in purported exercise of their duties, only those acts are protected. In Pukhraj's case (Supra), it was observed as under by their Lordships of the Supreme Court:- - "the section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or. when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant, in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or pro porting to be done in execution of a duty," Therefore, in the present case at best it could be said that while discharging their duties bona fidely they might have done some excess, but nonetheless it is in the purported discharge of their official duty. ;