MADHAB PRASAD MISRA v. STATE — 1971 DIGILAW 168 (ORI)

ORDER This revision is directed against the order dated 4-9-71 passed by the trial court, thereby framing a charge against petitioner No. 1 under Section 379/109, I.P.C., and against all the rest under Section 379, I.P.C. 2. The allegation against petitioner Nos. 2 to 7 in short is that they dishonestly removed some Jamu (black-berry) trees belonging to the Revenue Department and standing on plots Nos. 2929 and 2930, in mouza Khandapara Garh, Against petitioner No. 1 it is alleged that he abetted the commission of theft of the said Jamu trees by the other accused persons. 3. Mr. Misra, the learned counsel for the petitioners, contends that petitioner No. 1, being a public servant removable by the State Government, could not be proceeded against without a valid sanction from the proper authority, and as such this proceeding against him is bad in law and is liable to be quashed. With regard to the other petitioners it is urged that they cut and removed the trees in question as they purchased the same in a public auction conducted by the Sarpanch of the Gram Panchayat and so they have not committed any offence. 4. In fitness of things. I will at first take up the case of petitioner No. 1. At the outset it must be stated that the statement made by the Magistrate in the impugned order that his predecessor while taking cognizance of the matter on 25-3-71 appropriately considered the question of sanction and was satisfied that no such sanction was necessary to prosecute petitioner No. 1 is patently incorrect. Apart from the fact that cognizance in this case was taken, as I can see from the order sheet on 6-4-71 and not on 25-3-71, there is absolutely nothing in the order dated 6-4-71 that the Magistrate taking cognizance at all considered the question of sanction. That order, by which cognizance was taken, merely states that charge-sheet was received against the petitioners under Section 379/109, I.P.C. "cognizance taken", and the accused persons were summoned to appear on the next date fixed by the Court. Except stating "cognizance taken" there is absolutely nothing in the said order as to whether the above-mentioned question in any form or manner was considered, much less decided, by that Magistrate at the time of taking cognizance. 5. Except stating "cognizance taken" there is absolutely nothing in the said order as to whether the above-mentioned question in any form or manner was considered, much less decided, by that Magistrate at the time of taking cognizance. 5. It is seen from the F.I.R. that petitioner No. 1 is sought to be prosecuted not by his name, but by his designation as the Sarpanch of the Khandapara Gram Panchayat. The court below after stating the name of petitioner No. 1 has described him as the Sarpanch of the Khanda Gram Panchayat. As per the provisions of S. 143 of the Orissa Gram Panchayat Act (hereinafter referred to as the Act) all members officers and others mentioned in that Section are deemed to be public servants within the meaning of Section 21, I.P.C. Accordingly there is no doubt and it is not challenged, that petitioner No. 1 being the Sarpanch of the Gram Panchayat shall be deemed to be a public servant within the meaning of Section 21, I.P.C. 6. Under Section 115(2) of the Act, the Sarpanch of a Gram Panchayat is removable only by the State Government. True it is that a Sarpanch is liable to vacate officer in some other ways provided under the Act. But vacation of office under the other provisions of the Act is not the same thing as removal contemplated under Section 115(2) of the Act. Removal under Section 115(2) of the Act in my opinion is termination effected by a superior authority forcing the incumbent to vacate the office. The word 'removable' in Section 197, Cr.P.C. has the same connotation and is to be understood in the same technical sense. Other forms of termination, of the office provided under the Act would not amount to removal contemplated under Section 115(2) of the Act and under Section 197, Cr.P.C. My above view is supported by the Division Bench decision on this point in Pukhraj v. Ummaidram, AIR 1964 Raj 174 = (1964 (2) Cri.L.J. 339). I am also inclined to take the above view because of the difference in the terminology used in Sec. 24 and Section 115(2) of the Act providing for the termination of the office. While on the passing of a vote of no-confidence under Section 24 the member holding the office of Sarpanch or the Naib Sarpanch "shall be deemed to have vacated such office". While on the passing of a vote of no-confidence under Section 24 the member holding the office of Sarpanch or the Naib Sarpanch "shall be deemed to have vacated such office". Under Section 115(2) the State Government shall under certain circumstances, and may under the other circumstances mentioned therein, 'remove' any such incumbent from his office, as expressly provided under the said two sections. The above difference in the terminology is not without any significance, and in my opinion the said difference is only to distinguish "vacation" of office caused under Section 24 from the 'removal' effected under Section 115(2) of the Act. 7. On the above considerations petitioner N. 1 the Sarpanch of the Gram Panchayat, is a public servant of the category contemplated under Section 197, Cr.P.C. and so a prosecution against him cannot be launched without a valid sanction from the proper authority, if the offence alleged against him was committed by him while acting or purporting to act in the discharge of his official duty. 8. So it is now to be considered whether on the materials on record the complained-of-act of petitioner No. 1 can be said to have been committed by him "while acting or purporting to act in the discharge of his official duty." 9. The specific case alleged against petitioner No. 1 is that he abetted the commission of theft by the other petitioners by authorising them to cut and remove Jamu trees belonging to the Revenue Department and under the control and management of the Tahasildar of Khandapara. On behalf of petitioner No. 1 it was specifically urged in the court below that the Jamu trees in question belonged to the Gram Panchayat of which he was the Sarpanch, and he was duly authorised to dispose of those trees by public auction, and as such he cannot be held guilty for the offence alleged against him. Before me it has been submitted that this petitioner auctioned those trees in accordance with the decision of the Gram Panchayat and as approved by the B.D.O.; and in the public auction conducted by this petitioner the order accused persons in the case purchased those trees, paid the bid amount and thereafter cut and removed those trees. Accordingly it is urged that all that has been done by petitioner. Accordingly it is urged that all that has been done by petitioner. No. 1 in this connection was done by him in the capacity of a Sarpanch and in due discharge of his official duty, and so the court acted illegally in taking cognizance of the case against him in thee absence of a valid sanction from the proper authority. 10. In the revision petition it is stated on affidavit that under the Act the State Government issued a circular dated 28-12-62 providing for transferring the interest and management of orchards and fruit-bearing trees in favour of Gram Panchayat and in pursuance of the said circular the Collector, Puri, by an order passed in April, 1963, transferred the control and management of the orchards and fruit-bearing trees of the Khandapara Tahasil area to the control and management of the Khandapara Gram Panchayat. In support of that assertion a true copy of the Collector's letter No. XLI-1-63 Rev. dated April, 1963 has been filed as Annexure-1 to the revision petition which shows that in pursuance of instructions laid down in Revenue Department letter No. 61564-C-E (H) - 61/62 dated 28-12-62 the District Magistrate & Collector of Puri transferred the control and management of he orchards and fruit bearing trees in Khandapara Tahasil to the control and management of the Khandapara Gram Panchayat on certain terms and conditions as laid down in the said letter. Condition No. 3 in the said letter is as follows : "(3). No live trees should be cut up from any orchard in any circumstances; the G.P. may however cut and dispose of dead and wind-fallen trees and trees that have become otherwise useless." From the list of orchards (Annexure-3/1 to the revision petition) attached to the Khandapara Tahasildar's Memo No. 2114(15) dated 19-6-63 (Annexure 3 to the revision petition) it is seen that the orchards comprising plots Nos. 2929/2753 and 2930 were under the Khandapara Gram Panchayat. It is also asserted on affidavit in the revision petition that on plots Nos. 2929 and 2930 there were some black-berry (Jamu) trees, some of which had died and/or become useless and people were stealthily removing the branches of those tress, thereby causing loss to the Gram Panchayat and so some of these trees were put to sale by public auction. From the F.I.R. of this case it is quite evident that Jamu trees actually existed on plots Nos. From the F.I.R. of this case it is quite evident that Jamu trees actually existed on plots Nos. 2929 and 2930. 11. It was contended on behalf of the State that as no Jamu trees were shown in the aforesaid list Annexure 3/1 those trees were not transferred to the Gram Panchayat. The Collector by his aforesaid order as per Annexure-1 transferred the control and management of orchards and fruit-bearing trees of Khandapara Tahasil area to the Gram Panchayat. As the order is in the general from it is difficult to accept the contention that though the management and control of the orchard comprising the aforesaid two plots, on which the Jamu. Amba and Panas trees were standing was made over to the Gram Panchayat, the Jamu trees standing thereon continued in the possession, management and control of the officers of the Revenue Department of the Government and only the Amba and Panas trees in that orchard were under the management and control of the Gram Panchayat. Of course my aforesaid view in the matter is only a prima facie one based on whatever materials are not before me. 12. Mr. Misra, in course of the hearing of this case filed certain papers, stated to be true copies of the documents served on petitioner No. 1 under S. 173(4) Cr.P.C. Copies of these papers were also served on the counsel for the State, who does not challenge the correctness of these documents. From one of these papers it is seen that on 5-9-70 petitioner No. 1 wrote a letter to the local B.D.O. suggesting the some dead Jamu trees in Chitrakar Tota should be publicly auctioned. By the letter he requested the B.D.O. to fix the date of auction. The B.D.O. by his note dated 17-9-70 in that letter, asked petitioner No. 1 to fix the date of auction and intimate the same to him. Thereafter on 20-9-71 petitioner No. 1 fixed 24-9-70 as the date of public auction and sent a copy of the said notice to the local B.D.O. It is categorically asserted on affidavit and also seen from the other papers filed by Mr. Misra that the auction took place on 24-9-70 as notified, bid sheets were maintained and the trees were sold to petitioners Nos. 2 to 7, the highest bidders in that auction, on their depositing the bid amounts. Misra that the auction took place on 24-9-70 as notified, bid sheets were maintained and the trees were sold to petitioners Nos. 2 to 7, the highest bidders in that auction, on their depositing the bid amounts. It is also asserted on affidavit that the bid amounts collected in that public auction were duly deposited in the Gram Panchayat Fund. 13. Apart from the above considerations, under Section 44(k) of the Act, it was the obligatory function of the Gram Panchayat to protect, maintain and develop all properties vested in or entrusted to the management of the Gram Panchayat. As the management and control of the aforesaid orchards, comprising the two plots of land on which the Jamu trees in question were standing, had been duly entrusted by the Collector to the Gram Panchayat, its Sarpanch, petitioner No. 1 had the duly cast on him to look after the proper management of the said orchard in all its aspects. That being so on his assertion that the trees in question were auctioned in the best interest of the Gram Panchayat, and it is seen that petitioner No. 1 really auctioned these trees in a public auction in the manner aforesaid it can be said that petitioner No. 1 acted or purported to act in discharging his obligatory duty as contained in Section 44(k) of the Act. 14. Law is well settled that "if the act complained of is directly concerned with the official duties of a public servant so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so irrespective of whether it was, in fact a proper discharge of duties, because that would really be a matter of defence on the merits which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution." (Amrik Singh v. State of Pepsu, AIR 1955 SC 309 = (1955 Cri.L.J. 865)). 15. That being so and on the above considerations it is quite clear that the complained of act of petitioner No. 1 is directly concerned with his official duty as the Sarpanch, and his claim that he did that act by virtue of his office is justified and cannot be negatived on the facts now before me. 15. That being so and on the above considerations it is quite clear that the complained of act of petitioner No. 1 is directly concerned with his official duty as the Sarpanch, and his claim that he did that act by virtue of his office is justified and cannot be negatived on the facts now before me. So the case instituted against petitioner No. 1 cannot proceed in the absence of a valid sanction from the proper authority as provided under S. 197, Cr.P.C. 16. Moreover, under S. 138 of the Act, no legal proceeding can be instituted against a Sarpanch of a Gram Panchayat for anything done or purported to have been done under this Act until the expiration of one month next after notice in writing has been delivered to him or left at his office or place of residence, explicitly stating therein the cause of action, the nature of the relief sought, the amount of compensation, if any, claimed and other details as specifically mentioned in that Section. As the complained-of act of petitioner No. 1 can be said to have been done or purported to have been done in performance of his official duty under the Act, and there is nothing on record to show that the notice contemplated under Section 138 has been served on him in the manner prescribed in the said Section, the prosecution against this petitioner is bad in law and is to be quashed so far as it relates to him. 17. The other petitioners, as seen from the F.I.R., have been asserting that they have purchased the trees in question in an auction made by the Gram Panchayat, and on, payment of the bid amount they cut and removed these trees. From the papers submitted by Mr. Misra and from the assertions on affidavit it is seen that these persons were the highest bidders in the auction by which the trees in question were sold and they deposited their respective bid amounts and the Sarpanch received the same. From these facts it appears that these petitioners acted on the bona fide belief that they had the right to cut and remove the trees in question. That being so, on the facts now before me the charge under Section 379 I.P.C. framed against them is not well founded and the same is liable to be quashed. 18. Mr. From these facts it appears that these petitioners acted on the bona fide belief that they had the right to cut and remove the trees in question. That being so, on the facts now before me the charge under Section 379 I.P.C. framed against them is not well founded and the same is liable to be quashed. 18. Mr. Misra submitted certain other aspects of the matter which need not be dealt with and decided at present in view of my above findings. In the result, therefore, the present proceeding so far as it relates to petitioner No. 1 is quashed. Consequently the charge under Section 379/109 I.P.C. framed against him is quashed. The charge framed against the other petitioners under Section 379, I.P.C. is also quashed. The impugned order is accordingly set aside and this revision petition is allowed. Petition allowed.