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1972 DIGILAW 51 (RAJ)

Kallua v. State of Rajasthan

1972-03-08

MEHTA

body1972
MEHTA, J.—Kallua was acting as Sarpanch, Gram Panchayat, Khanua, police station, Roopbas. He along with other Panchas of the Gram Panchayat ordered the demolition of the eastern wall of the complainant Parsadi*s house on January 16, 1966. Complainant Parsadi initiated proceedings against Kallua and others under secs. 166, 167 and 120-B , I.P.C., in the court of Additional Munsiff-Magistrate, Bayana. In the course of the proceedings an objection was taken by Kallua on August l, l966, that he acted or purported to act in the discharge of his official duty as Sarpanch in issuing the order for the demolition of the wall and that as Sarpanch was removable by the State Government, he could not be prosecuted without the sanction of the Government by virtue of sec. 197, Cr.P.C. that objec-ction was rejected by the Additional Munsiff-Magistrate, Bayana, by his order dated October 15, 1968 A revision-petition was filed by Kallua in the court of Sessions Judge, Bharatpur, against the order of the Additional Munsiff-Magistrate, Bayana. That revision-application was dismissed by Additional Sessions Judge, Bharatpur, on September 8, 1970. Kallua presents this revision-petition against that order. 2. The contention of learned counsel for the petitioner is that both the courts below, i.e., the Additional Munsiff-Magistrate, and Additional Sessions Judge, Mr. Murlidhar Choudhary, fell into error in holding that Sarpanch is removable from the office by the Collector and. therefore, the provisions of sec. 197, Cr.P.C., were not attracted. Learned Deputy Government Advocate also supports this contention. 3. The word Panch has been defined in sec. 2(3) of the Rajasthan Panchayat Act, 1953, like this. 4. "Panch" means a member of a Panchayat other than a Sarpanch." The very definition of Panch suggests that it does not Include Sarpanch, The definition of the term Sarpanch as given in sec. 2(9A) of the Rajasthan Panchayat Act runs as follows: "Sarpanch means the Sarpanch of a Panchayat elected under sub-sec. (1) of sec. 13;" Panchas are elected in accordance with the provisions of sec. 6 of the Rajasthan Panchayat Act. The election of Sarpanch is not conducted according to that section but in accordance with a distinct provision, embodied in sec. 13(1) of the Act. (1) of sec. 13;" Panchas are elected in accordance with the provisions of sec. 6 of the Rajasthan Panchayat Act. The election of Sarpanch is not conducted according to that section but in accordance with a distinct provision, embodied in sec. 13(1) of the Act. Sec. 13(1) is reproduced below : "Every Panchayat shall have a Sarpanch who must be a person qualified to be elected as a Panch and able to read and write Hindi and shall be elected by the electors of the whole Panchayet Circle in the prescribed manner." Thus, the procedure for election of the Panchas and Sarpanch are quite distinct. The State Government by its Notification No. F.4(138) SC/A/58/417, dated January 1, 1962, has delegated the power prescribed in sec. 17 of the Act relating to the removal of the Panchas under sec. 17(4) to the Collector of the District. The court below has curiously interpreted the word "Panchas" mentioned in the notification by holding that it would include Sarpanch. As I have already pointed out above, the definitions of the Panchas and the Sarpanchas are variegated. The provisions relating to their elections are also separate and distinct. The word Sarpanch under no stretch of imagination can be said to be covered by the word Panchas. If the State Government delegated such powers in respect of the Sarpanch also to the Collector, the same would have been definitely mentioned in the Notification, but that has not been done. That shows that the State Government retained the power of removal of Sarpanch with itself. Learned Additional Sessions Judge has relied upon an authority of this Court reported in Maluram vs. The State of Rajasthan(l). The relevant portion of the judgment is excerpted as under : "as far as village Panchayats are concerned, a Sarpanch is included in the words total number of Panches used in sec. 19(2)." Sec. 19(2) of the Act deals with no confidence motion. The relevant portion of the judgment is excerpted as under : "as far as village Panchayats are concerned, a Sarpanch is included in the words total number of Panches used in sec. 19(2)." Sec. 19(2) of the Act deals with no confidence motion. It runs as under : "If the motion against the Sarpanch is carried by a majority of not less than 3/4 the total number of members of the Panchayat including the Sarpanch but excluding the associate Panchas, or if the motion against the Up-Sarpanch is carried by a majority of the total number of members of the Panchayat including the Sarpanch but excluding the associate Panchas, the Sarpanch or the Up-Sarpanch, as the case may be, shall within 3 days of the passing of the motion resign his office by submitting his resignation to the Officer-in-charge of the Panchayats and thereupon his office shall be deemed to be vacant." The above provision of sec. 19 of the Act simply prescribes a quorum for the purpose of no-confidence motion. If a Sarpanch is not included in the words "total number of Panchas" appearing in sec. 19(2), the Sarpanch would have no right to table a motion of no confidence or even to vote in a meeting convened for that purpose. But that does not mean that the position of Panch and Sarpanch is the same for the purpose of S. 17 of the Act. As laid in down S. 17 it is the State Government which can remove a Sarpanch and not the Collector. The power under that section has been delegated in respect of the Panchas only and not Sarpanchas. Therefore, the case, reported as Maluram vs. The State of Rajasthan supra), hardly supports the proposition laid down by learned Additional Sessions Judge, Bharatpur. There is a direct authority of this Court on the matter under discussion. It is reported as Ram Dutt vs. State of Rajasthan(2). In that case it has been pointed out by Honble Bhargava J. that a Sarpanch can be removed only by the State Government and the complaint against him could not be taken cognizance of unless there is a previous sanction of the State Government. The same view has been expressed by Honble Bhandari and Beri JJ., in Pukhraj vs. Ummaidram(3). In that case it has been pointed out by Honble Bhargava J. that a Sarpanch can be removed only by the State Government and the complaint against him could not be taken cognizance of unless there is a previous sanction of the State Government. The same view has been expressed by Honble Bhandari and Beri JJ., in Pukhraj vs. Ummaidram(3). In that case the learned Judges made the following observation : "The Sarpancha of a Panchayat is a public servant, not removable from his office except by or with the consent of the State Government and consequently he is entitled to protection under sec. 197, Cr.P.C. A complaint against him cannot, therefore, be taken cognizance of without the previous sanction of the State Government." The term public servant has not ben defined in Criminal Procedure Code, but it is provided in sec. 5 that all words and expressions used in the Code and defined in the Indian Penal Code shall be deemed to have meanings attributed to then, by that Code. Thus, the words, public servant in sec. 197, Cr.P.C., can be construed as including a Sarpanch who is deemed to be a public servant within the meaning or the Indian Penal Code, as laid down in sec. 78 of Rajasthan Panchayat Act, 1953. 5. In this case the act alleged to have been done by Kallua shows that he did so in the execution his official duties. There is, therefore, reasonable connection between the action and discharge of the official duty and, consequently, the provision of sec. 197, Cr.P.C., does come into play. 6. In the result, I accept this revision-petition and set aside the order of Additional Sessions Judge, Bharatpur, dated September 8, 1970, as also that of the Additional Munsiff Magistrate, Bayana, dated October 15, 1968, and hold that Kallua cannot be prosecuted without the prior sanction of the State Government under sec. 197, Cr.P.C.