Criminal Writ Petition No.318 of 1994

26th June, 2000

Petitioner Counsel: Mr. A.N.GUPTE, Mr. N.Y.GUPTE
Respondent Counsel: Mr. A.J.JOSHI
Other Counsel: Mrs. KEJARIWAL

Cases Cited:
Vishvamohan Tiwari Vs. Mahadu Dalpat, 1964 Mh.L.J. 227 [Para 8]
Konkati Narayana Vs. Balakanti Veerayya, AIR 1959 A.P. 27 [Para 10]
State of Maharashtra Vs. Lalgit Rajshi Shah & ors., 2000(2) Mh.L.J. 801 [Para 14]
Ramesh Balkrishna Kulkarni Vs. State of Maharashtra, (1985) 3 SCC 606 [Para 16]

JUDGMENT

JUDGMENT :- This Criminal Writ Petition is filed by the petitioners/original accused, being aggrieved by the order of issuance of process, dated 16th January, 1993, passed by the Judicial Magistrate, Class, Palghar, under Sections 447, 452, 427, 504, 506(2) read with Section 34 of the Indian Penal Code. This order of issuance of process was passed by the Judicial Magistrate, First Class, Palghar, against the present petitioners/accused, after taking cognizance of the complaint dated 16th January, 1993, filed by the complainant/Respondent No.1 herein-Kaliram Gajanan Sankhe.

2. Few facts, which are required to be stated to appreciate the controversy involved, are as follows:

Petitioner No.1/Shantaram Balya Sankhe, at the relevant time, was Sarpanch, Petitioner No.2/Khanderao Chintaman Pimpale was Upa-Sarpanch and petitioner Nos. 3 to 15 were members/office bearers of the Grampanchayat, Village Kolwade, Taluka Palghar, Dist. Thane.

3. As per the averments made by the complainant/Kaliram Gajanan Sankhe in his complaint dated 16th January, 1993, the complainant was residing along with his family members in the said village and had his own house at Kolwade within the area of Gaothan, which was the ancestral house of the complainant. There was a partition between the complainant and his family members of the ancestral house in the year 1984. The complainant carried out repairs in the year 1986 of the portion of the house, which came into his possession and occupation. The Verandah was reconstructed with slab thereon. The complainant's son was unemployed. Therefore, the complainant started a grocery shop in the verandah for his son. The gaothan land was in occupation and possession of the complainant's family for generations.

4. As per the story of the complainant, the house of the complainant and the verandah, so also the construction carried out by him in it, was legal and valid. The said construction was done in the year 1960 and repairs were carried in the year 1981. The said construction did not abut on any public road, nor obstructed any one. However, on the instigation of Petitioner No.2/Khanderao Pimpale, Sarpanch i.e. petitioner No.1 had acted illegally with the assistance of other members/office bearers of the Grampanchayat and decided to demolish the house of the complainant and they misused their office and took police help and when they went to the house of the complainant, they allegedly said that if the complainant obstructed, they would run a bulldozer and they would finish the complainant. Thus, all the accused gave threat of killing the complainant. They also had brought crane with them. The complainant told them that no show cause notice was given to him and that his construction was legal. When the attempt was made to stop them, the sons of the complainant were arrested under Section 151 of the Code of Criminal Procedure. The complainant was saying again and again that his construction was not encroaching upon anybody's property or public road, nor was it illegal, and was in existence for many years within the Gaothan area. The allegation of the complainant is that, in spite of this position, without giving prior notice and with malafide intention and with misuse of power, the accused, in furtherance of their illegal conspiracy amongst each other, entered the complainant's verandah and damaged the complainant's shop and with the help of crane demolished construction of the complainant and caused damage to the extent of Rs.70,000/-. They also gave threat of killing the complainant. Hence, the allegation of the complainant is that the accused have misused their official position and committed illegality and committed criminal offence to suppress the complainant. Hence, being aggrieved, the complainant filed the complaint in the Court of the Judicial Magistrate, First Class, Palghar under Sections 447, 452, 427, 504, 506(2) of the Indian Penal Code and prayed that action in accordance with law be taken against the accused.

5. The learned Judicial Magistrate, First Class, Palghar, read the complaint and recorded verification and came to the conclusion that prima facie case was made out against all the accused and issued process against them under Section 447, 452, 427, 504, 506(2) read with Section 34 of the Indian Penal Code. Being aggrieved by the said order, the petitioners/original accused have approached this Court under Article 227 of the Constitution of India, and Section 482 of the Code of Criminal Procedure, 1973.

6. It is the contention of the petitioners that the lower court committed error in taking cognizance of the said complaint as no sanction as required under Section 197 of the Code of Criminal Procedure, 1973 was taken by the complainant before launching prosecution against the petitioners who were public servants as per Section 21 of the Indian Penal Code. They have, therefore, prayed that in view of this position, the process issued by the learned Judicial Magistrate, First Class, Palghar and the proceedings be quashed and set aside.

7. Mr.Gupte, the learned Advocate appearing for the petitioners/original accused submitted that all the petitioners were public servants within the meaning of Section 21 of the Indian Penal Code and therefore, sanction ought to have been taken by the complainant before prosecuting the petitioners who were Sarpanch, Upa-Sarpanch and members of the Village Panchayat, Kolwade and, therefore, cognizance ought not to have been taken by the learned Magistrate and that the prosecution for want of sanction is void and hence should be quashed.

8. Mr. Joshi, the learned Advocate appearing for the original complainant/Respondent No.1 herein, on the other hand, submitted that though Section 184 of the Bombay Village Panchayats Act, 1958 states that every member of a panchayat and officer and servant maintained by or employed under a panchayat shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, for prosecuting them for any offence alleged to be committed by them while acting or purporting to act in the discharge of their official duty, no previous sanction of the State Government is required as they are not public servants of the category either "employed" or "removable" by the State Government as required by Section 197 of the Criminal Procedure Code. He submitted that in view of this position, there was no question of sanction before prosecuting them. He relied upon the Judgment of this Court, reported in 1964 Mh.L.J. 227 (Vishvamohan Tiwari vs. Mahadu Dalpat). This was a case under the Bombay District Municipal Act, 1901, now repealed vide Section 343 of the Maharashtra Municipalities Act, 1965 (Maharashtra Act No.XL of 1965). In this case, the petitioner/accused-Vishvamohan Tiwari was charged under Sections 504 and 506 (1) of the Indian Penal Code in pursuance to the complaint made by one Madhu Dalpat. The question which arose in this case was, whether the complaint was barred for want of sanction of the State Government as required under Section 197 of the Criminal Procedure Code since the accused in his capacity as a Vice-President was a public servant within the meaning of Section 21 of the Indian Penal Code, read with Section 45 of the Bombay District Municipal Act, 1901 and had acted as such, at the Board meeting on the day in question. The finding of the learned Magistrate on this point was that, the complaint was barred. In the result, the learned Magistrate dismissed the complaint summarily, for want of sanction required under Section 197 of the Criminal Procedure Code. Against this order of the learned Magistrate, the complainant filed Revision Application in the Sessions Court at Jalgaon, who by its Judgment held that by virtue of the provision of Section 23(7) of the Bombay District Municipal Act, 1901, the State Government was not the only authority, which could remove a President or Vice President of a District Municipality and that, therefore, no sanction under Section 197 of the Criminal Procedure Code was necessary, before the learned Magistrate could take cognizance of the complaint filed by the complainant-Dalpat in the Court. He also came to the conclusion that, prima facie case in respect of offence under Sections 504 and 506(1) of the Indian Penal Code, against the accused, was made out by the complainant in his complaint and, therefore, the learned Magistrate was entitled to proceed with the complaint. Being aggrieved by this order, the accused-Vishvamohan Tiwari filed Criminal Revision Application in the High Court. The learned Single Judge, who heard the Criminal Revision Application, after examining the provisions of Section 197(1) of Criminal Procedure Code and relevant case law on the point, came to the conclusion that, the learned Magistrate was in error in his view that sanction under Section 197 of the Criminal Procedure Code was necessary before he could take cognizance of the offence charged against the accused by the complainant. He observed that, before any sanction under Section 197 of the Criminal Procedure Code could be required, it was necessary that the public servant should be removable from his office only by or with the sanction of the Government, Central or State, in whose employment he might be. He further observed that, if by virtue of the provision of any Act, such a person was also liable to be removed by any other authority, it could not possibly be said that sanction under Section 197 of the Criminal Procedure Code would be necessary before such person could be prosecuted for any offence committed by him in the discharge of his public duties. He then dealt with the provision of sub-section (7) of Section 23 of the Bombay District Municipal Act, which was as follows:-

"The term of office of every President and of every Vice-President shall cease on the expiry of his term of office as Councillor. Every President, who is elected by the municipality and every Vice-President shall be removable from his office as such President or Vice-President by the municipality by a resolution passed to that effect, provided that three-fourths of the whole number of the Councillors of the municipality vote in favour of such resolution and provided further that before such resolution is passed, the President or Vice-President is given reasonable opportunity of showing cause why such a resolution should not be passed. Every President and every Vice-President shall be removable from his office as such President or Vice-President by the State Government for misconduct, or neglect of, or incapacity to perform his duty and a President or Vice-President so removed shall not be eligible for re-election during the remainder of the term of office of the municipality."

The learned Single Judge, therefore, observed that the term of sub-section (7) of Section 23 provided for the removal, inter alia, of a Vice-President by two different authorities. The Municipality itself, under the first part of the sub-section, could remove the Vice-President from his office by a resolution passed by three-fourths of the whole number of the Councillors of the Municipality. The power so conferred by this part of the sub-section upon the Municipality was unrestricted in its scope and extent. The Municipality, in other words, if it so chose to do, could remove a President or a Vice-President from his office for no apparent reason whatsoever, more so when he was guilty of misconduct or neglect of or incapacity to perform his duty as President or Vice-President, as the case may be. The power conferred on the State Government by the second part of the sub-section to remove a President or a Vice-President, however, was restricted in its scope and extent. The State Government could remove a President or a Vice-President of a District Municipality only when he was found guilty of misconduct or neglect of, or of incapacity to perform his duty as President or Vice-President , as the case may be. Except for these reasons, the State Government had no authority whatsoever to remove a President or a Vice-President from his office. Considering the terms of this sub-section, therefore, it could not be said that the Vice-President could be removed from his office not only by the Municipality, but also by the State Government although the latter would be able to remove him only in certain circumstances. The learned Single Judge, therefore, observed that in this case, the learned Magistrate would not be in need of a sanction of the State Government since the accused was not removable from his office of Vice-President, "save by or with the sanction of the State Government", but was also removable by the Municipality as and when it pleased. Observing this, the learned Single Judge of this Court, dismissed the Criminal Revisional Application filed by the accused-Vishvamohan Tiwari against the order of the learned Sessions Judge. The order of the learned Magistrate, dismissing the complaint was set aside and the learned Magistrate was ordered to proceed with the complaint and dispose of the case in accordance with law.

9. In the present case at hand also, the Sarpanch, Upa Sarpanch and other members of the Village Panchayat can be removed from their office, if 'no confidence motion' is duly passed against them. They are also employed by the State Government and are not always removable by the State Government and, therefore, no sanction is required from the State Government to launch prosecution against them.

10. Andhra Pradesh High Court had an occasion, in Konkati Narayan and others vs Balakanti Veerayya, reported in A.I.R. 1959 A.P. 27, to deal with the question, whether Sarpanch or Upa Sarpanch of the Grampanchayat was public servant and whether he was entitled to protection under Section 197 of the Criminal Procedure Code. The learned Single Judge, in this case, observed that Section 197 of the Criminal Procedure Code did not afford protection to all public servants, but only to certain category of public servants, namely, those who were not removable from office, save by or with the sanction of a State Government or the Central Government, as the case may be. He further observed that it was true that the Sarpanch and the Upa Sarpanch were deemed to be public servants by virtue of Section 145 of the Hyderabad Gram Panchayats Act, but that a Sarpanch or Upa Sarpanch of the Gram Panchayat was not a public servant not removable from his office, save by or with the sanction of the State Government, nor was he a person employed in connection with the officers of the State and, therefore, he was not entitled to the protection under Section 197 of the Criminal Procedure Code.

11. At this stage, it would be convenient to reproduce Section 184 of the Bombay Village Panchayat Act, 1958, which lays down as follows :

"184. Members, etc. of panchayats to be public servants:

Every member of a panchayat and every officer and servant maintained by or employed under a panchayat shall be deemed to be a public servant (emphasis supplied by me) within the meaning of section 21 of the Indian Penal Code (XLV of 1860)."

12. The most significant phrase in this section is, "......shall be deemed to be a public servant...". It is significant to note that Section 184 of the Bombay Village Panchayats Act, 1958, does not say that every member of a Panchayat....etc. are all public servants (emphasis supplied by me) within the meaning of Section 21 of the Indian Penal Code. It only says that every member of the panchayat....etc. shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.

13. When the person is "deemed to be" something, the only meaning possible is that, in reality, he is not that something and that the Act of the Legislature requires him to be treated as such only for the purposes of the said Act and not otherwise. The legal fiction is created only for the purposes of the said Act. When a person is "deemed to be" a public servant,it cannot be said that by this deeming provision, it becomes possible to prosecute him for having committed any offence under the Indian Penal Code. There is a sea of difference between the two phrases "public servant" and "deemed to be a public servant".

14. The Supreme Court in State of Maharashtra vs. Lalgit Raishi Shah and others reported in 2000(2) Mh.L.J. 801 has considered whether officers exercising powers under specific sections of the Maharashtra Co-operative Societies Act, 1960, become "public servants" under the Indian Penal Code so as to be prosecuted for having committed offence under the Penal Code. In this case, the question for consideration was, whether the Chairman of a Co-operative Society under the Maharashtra Co-operative Societies Act, 1960 could be held to be a public servant for the purpose of Section 21 of the Indian Penal Code and as such, could be proceeded against for offences under Section 5(1) read with Section 5(2) of the Prevention of Corruption Act, 1947. The contention of the accused, was based on the pronouncement of the Supreme Court in Antulay's case reported in (1984) 2 SCC 183, that the elected office bearers of the Co-operative Society could not come within the purview of the said definition and, therefore, they could not be prosecuted for offences under the Indian Penal Code unless and until Section 21 of the Indian Penal Code is amended, was accepted by the Supreme Court. The sole question that was for consideration before the Supreme Court was with respect to the effect of the provisions of section 161 of the Maharashtra Co-operative Societies Act, 1960 in interpreting the provisions of Section 21 of the Indian Penal Code and this is what the Supreme Court observed:

It is undoubtedly true that the Co-operative Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry No.32 of List II of the Seventh Schedule of the Constitution. The legislature no doubt in Section 161 has referred to the provisions of section 21 of the Indian Penal Code, but such reference would not make the officers concerned, "public servant" within the ambit of Section 21. The State Legislature had the powers to amend Section 21 of the Indian Penal Code, the same being referable to legislation under Entry 1 of List III of the Seventh Schedule, subject to Article 254(2) of the Constitution as, otherwise, inclusion of the persons who are "public servants" under section 161 of the Co-operative Societies Act would be repugnant to the definition of "public servant" under section 21 of the Indian Penal Code. That not having been done,it is difficult to accept the contention of the learned counsel appearing for the State that by virtue of deeming definition in Section 161 of the Co-operative Societies Act by reference to Section 21 of the Indian Penal Code, the persons concerned, could be prosecuted for the offences under the Indian Penal Code. The Indian Penal Code and the Maharashtra Co-operatives Societies Act, 1960 are not statutes in pari materia. The Co-operative Societies Act is a completely self-contained statute with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code. Both statutes have different objects and created offences with separate ingredients. They cannot thus be taken to be statutes in pari materia so as to form one system. This being the position, even though legislature had incorporated the provisions of Section 21 of the Indian Penal Code into the Co-operative Societies Act, in order to define a "public servant" but those "public servants" cannot be prosecuted for having committed offences under the Indian Penal Code."

15. Section 161 of the Maharashtra Co-operative Societies Act, 1960 also states that the Registrar and other officers...shall be "deemed to be public servants" within the meaning of section 21 of the Indian Penal Code. Thus, by a legal fiction, they become public servants only for the purposes of the Maharashtra Co-operative Societies Act, 1960. That by itself does not make these persons public servants under the Indian Penal Code so as to be prosecuted for having committed offences under the Penal Code. The Supreme Court thus, in this case (supra) did not interfere with the decision of the Division Bench of this Court, who had come to the conclusion that Section 161 of the Maharashtra Co-operative Societies Act, 1960 incorporating Section 21 of the Indian Penal Code ipso facto did not enlarge the definition of term "public servant" in Section 21 of the Indian Penal Code.

16. In Ramesh Balkrishna Kulkarni vs. State of Maharashtra, reported in (1985) 3 SCC 606 also the Supreme Court has held that the Municipal Councillor is not a public servant within the meaning of Clause Twelfth of Section 21 of the Indian Penal Code and hence cannot be prosecuted under Section 5 of the Prevention of Corruption Act, 1947.

17. In the present case at hand also by virtue of Section 184 of the Bombay Village Panchayats Act, 1958, every member of the Panchayat ... is deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, but that does not by itself make those persons "public servants" under the Indian Penal Code so as to be prosecuted of having committed offence under the Indian Penal Code.

18. Mr. Gupte drew my attention to Section 39 of the Bombay Village Panchayats Act, 1958 which speaks of removal from office of the Sarpanch and Upa-Sarpanch. It states as follows :

"S.39. Removal from office.

(1) The Standing Committee may remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of, or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Standing Committee also be removed from the panchayat.

Provided that, no such person shall be removed from office unless the Chief Executive Officer under the orders of the President of the Zilla Parishad concerned holds an inquiry after giving due notice to the panchayat and the person concerned; and the person concerned has been given a reasonable opportunity of being heard and thereafter the Chief Executive Officer submits his report to the Standing Committee.

(1A) Where a person is removed from office of the Sarpanch or Upa-Sarpanch, he shall not be eligible for re-election as Sarpanch or Upa-Sarpanch, during the remainder of the term of office of members of the panchayat.

(2) The Standing Committee may subject to like condition disqualify for a period not exceeding five years, any person who has resigned his office as a member, Sarpanch or Upa-Sarpanch and has been guilty of the acts and omissions specified in sub-section (1) :

Provided that such action is taken within a reasonable time after such resignation.

(3) Any person aggrieved by an order of the Standing Committee under sub-section (1) or (2) may, within a period of thirty days from the date of the communication of such order, appeal to the Commissioner."

19. In my opinion, this Section cannot be taken recourse to because this talks of removal of Sarpanch and Upa-Sarpanch, who have been guilty of misconduct in the discharge of duty or disgraceful conduct, neglect, incapacity to perform his duty etc. Just because report from C.E.O. is required, that does not make them employees of the State Government.

20. In fact, the Supreme Court has held in Mohd. Hadi Raja vs. State of Bihar and another, reported in A.I.R. 1998 SC 1945, that the protection by way of sanction is not available to the officers of the Government companies or Public Undertakings though such public undertakings are "State" within the meaning of Article 12 of the Constitution of India on account of deep pervasive control of the Government. In this case, it is reiterated by the Supreme Court that no sanction to prosecute such officers of Government Companies or public undertakings will be required. The Supreme Court has also observed as follows :

"It will be appropriate to notice that whenever there was felt need to include other functionaries within the definition of public servant, they have been declared to be "public servants" under several special and local Acts. If the legislature had intended to include officers of instrumentality or agency for bringing such offices under the protective umbrella of Section 197, Cr.P.C., it would have been done so expressly."

21. In the present case at hand, after hearing both the Advocates, I have come to the conclusion that no sanction is required to prosecute Sarpanch, Upa Sarpanch and other members of the Village Panchayat as they are not employees of the State Government, nor are they removable exclusively by the State Government. They are, therefore, not public servants within the meaning of Section 21 of the Indian Penal Code though they are deemed to be public servants by virtue of Section 184 of the Bombay Village Panchayats Act, 1958. No sanction, therefore, was required to launch prosecution against them. In my opinion, therefore, the lower Court was correct in issuing process against the petitioners. Hence, the following order:

Criminal Writ Petition No.318 of 1994 is dismissed. Rule discharged. Interim order dated 29th August, 1994 is hereby vacated.

Petitioners to remain present before the learned Magistrate on 7th August, 2000. Magistrate to proceed in accordance with law.

Writ to be sent immediately.

Petition dismissed