JUDGMENT K.C. Sood, J. :- This petition, under Section 482 of the Code of Criminal Procedure, is directed against the orders of learned Chief Judicial Magistrate, Chamba dated March 4, 2004 where by the application of the petitioner and his co-accused, under Section 197 of the Code of Criminal Procedure, taking objection to the cognizance of the alleged offences against them under the Water (Prevention and Control of Pollution) Act, 1974 "Water Act" for short) without the previous sanction of the Government under Section 197 of the Code was kept pending with the directions that this application shall be decided after the conclusion of the trial The petitioner along with his co-accused was directed to be put the notice of accusation against him under Section 251 of the Code of Criminal Procedure. The Background: 2. The Himachal Pradesh Pollution Control Board, hereinafter referred to as "State Board", laid a complaint before the Chief Judicial Magistrate, Chamba, through its Assistant Environmental Engineer, against the President and the Executive Officer of the Municipal Council, Chamba under Sections 41, 43, 44, 47 and 49 of the Water Act. The State Board is a Statutory Body created under the Water Act. The allegations against the accused, the President and the Executive Officer, petitioner herein, are that they being responsible for the affairs of the Municipal Council, a local body, are liable to be prosecuted under Section 47 of the Water Act for having failed to prevent "the pollution" within the municipal limits of Chamba, i.e., Bhagat and Pacca Tala for the offences punishable under Sections 41, 43, and 44 of the Water Act. 3. The allegations against the accused petitioners are : (a) The accused are running/operating the local body without the consent of the Board under Sections 24, 25, 26 of the Water Act. (b) The accused disobeyed the directions of the Board and thereby committed the offences punishable under Sections 41. 43, 44 of the Water Act. (c) The local body has been provided with a sewage scheme/sewage treatment plant which is not being operated at its optimum capacity as the users have not been persuaded by them to take connection to the sewerage scheme and if the connection is not taken by the local residents, the sewage will not be treated and if left unattended, the discharge would flow some where else and will aggravate the problem of pollution; 4. The accused were summoned by the learned trial Magistrate, Chamba. Both the accused, including the petitioner herein, filed an application under Section 197 of the Code of Criminal Procedure saying that in the absence of sanction of the Competent Authority under Section 197 of the Code, cognizance for the alleged offences cannot be taken against them. They specifically stated that the alleged in-action on the part of the petitioner and his co-accused, the President of the Municipal Council, was in the discharge of his public duties and therefore, the complaint was mislaid. 5. Learned trial Magistrate by impugned order, relying upon Raj Kishore Roy v. Kamleshwar Pandey and another, 2002(6) Supreme Court Cases 543 took a view that question of sanction shall be decided in the judgment after the conclusion of the trial and the application was directed to be kept pending for decision after the conclusion of the trial. 6. The other contention of the learned Counsel for the petitioner is, Municipal Council is a creature of the statute and not a Corporation or Company within the meaning of Section 47 of the Water Act. The prosecution, submitted learned Counsel for the petitioner, under Section 47 of the Act is not maintainable. 7. The object of Section 197, indisputably is to guard against vexatious proceedings against public servants and ensure that no proceeding is started against a public servant unless there are good reasons for such prosecution. To invoke Section 197, two conditions must be satisfied: (a) The accused is a public servant or was a public servant removable from his office only with the sanction of the State Government or Central Government and (b) Such public servant is accused of an offence allegedly committed by him while acting or purporting to act in he discharge of his official duties. 8. The question which arises for consideration is whether the petitioner is a public servant and removable by either the State Government or the Central Government. 9. Section 21 of the H.P. Municipal Act, 1994, hereinafter referred to as "Municipal Act" lays down that every member of the municipality and every person employed by the municipality, whether for the whole time or part time, shall be deemed to be public servant within the meaning of Section 21 of the Indian Penal Code, Section 21 reads :- "21. Section 21 of the H.P. Municipal Act, 1994, hereinafter referred to as "Municipal Act" lays down that every member of the municipality and every person employed by the municipality, whether for the whole time or part time, shall be deemed to be public servant within the meaning of Section 21 of the Indian Penal Code, Section 21 reads :- "21. Every member of the municipality and every person employed by the municipality, whether for the whole or part of his time, shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, 1860." 10. Admittedly, the President is a Member of the Municipal Council and the Executive Officer is an employee of the Municipal Council would, therefore, public servants for the purpose of Section 197 of the Code of Criminal Procedure. 11. This apart, Section 305 of the Municipal Council provides for the appointment of Executive Officers/Secretaries in the municipalities. Section 305 lays down that each Municipal Council shall have. Executive Officer who will be appointed by the State Government and shall govern by such conditions of service as may be prescribed by the rules under the Act. Sub-section (2) to Section 305 makes an Executive Officer of the Municipal Council responsible to assist the President of the Municipal Council in the discharge of his functions under the Act or any other law for the time being in force. Section 305 reads :- "305. (1) There shall be an Executive Officer in each Municipal Council and a Secretary in each Nagar Panchayat, who shall be appointed by the State Government and shall govern by such conditions of service as may be prescribed by rules under this Act. (2) It shall be the duty of the Executive Officer and the Secretary, as the case may be, to assist the President of the Municipal Council or Nagar Panchayat, as the case may be, in the discharge of their functions under this Act or any other law for the time being in force. (2) It shall be the duty of the Executive Officer and the Secretary, as the case may be, to assist the President of the Municipal Council or Nagar Panchayat, as the case may be, in the discharge of their functions under this Act or any other law for the time being in force. (3) Save as otherwise expressly provided by or under this Act, the officer referred to in sub-section (1), shall - (a) exercise all the powers specifically imposed or conferred upon him by or under this Act or under any other law for the time being in force; (b) lay down the duties of and supervise and control officers and officials holding office under the municipality in accordance with the rules made by the Government; (c) supervise and control the execution of all works of the municipality; (d) take necessary measures for the speedy execution of all works and developmental schemes of the municipality; (e) have custody of common seal and all papers and documents connected with the proceedings of the meetings of the municipality and of its Standing Committees and other Committees; (f) draw and disburse money out of the municipality fund; and (g) exercise such other powers and discharge such other functions as may be prescribed; (h) attend every meeting of the municipality and shall have the right to attend the meeting of any committee thereof and to take part in the discussion but shall not have the right to move any resolution or to vote. If in his opinion any proposal before the municipality is violative of or inconsistent with the provisions of . this Act or any other law, rule or order made there under, it shall be his duty to bring the same to the notice of the Government. (4) Every person in possession of moneys, accounts, records, or other property pertaining to a municipality shall on the requisition for this purpose in writing of the officer referred to in sub-section (1), forthwith hand over such moneys or deliver up such accounts, records or other property to the said officer or the person authorized in the requisition to receive the same. (5) The Executive Officer shall bring to the notice of the municipality any act or resolution of the municipality which may be in violation of any Government instructions or the provisions of this Act, provided that if such act or omission of the directions of the Government or the provisions of this Act, as the case may be, is not rectified within 15 days of the communication, it shall be the duty of the Executive Officer to bring such omission or violation to the notice of the Government." 12. A reading of Section 21 and 305, as quoted above, makes it abundantly clear that the petitioner is a public servant for the purposes of Section 197 of the Code. 13. Learned Counsel for the State Board relying upon Mohd. Hadi Raja v. State of Bihar, AIR 1988 Supreme Court 1945 submits that protection under Section 197 of the Code is not available to the Officers of the Government Companies or Public Undertakings even if such Public Undertakings are "State" within the meaning of Article 12 of the Constitution merely because of the pervasive control of the Government. 14. The question raised in Mohd. Hadi Raja was whether the protection of the provisions of Section 197 of the Code is applicable for prosecuting Officers of the Public Undertakings or the Government Companies because of the deep pervasive control. Their Lordships held that the justification for the protection under Section 197 of the Code lies in the Public Policy to ensure that official acts performed by a public servant do not lead to needless and vexatious prosecution of such public servant and it is desirable that it should be left to the Government to determine the question of expediency in prosecuting public servant. Their Lordships noticed that expression "Public Servant" has not been defined in the Code but Section 2(y) of the Code says that words used in the Code but not defined in the Code though defined in the Indian Penal code shall be deemed to have the same meaning attributed to them in the Indian Penal Code. 15. Section 21 of the Indian Penal Code defines public servant and, therefore, expression "public servant" will have the same meaning in the Code of Criminal Procedure. 15. Section 21 of the Indian Penal Code defines public servant and, therefore, expression "public servant" will have the same meaning in the Code of Criminal Procedure. Their Lordships held that though by the contrivance of mechanism of corporate structure, some of the public undertakings are performing the functions which are intended to be performed by the State, ex facie, such instrumentality or agency being a juridical person has an independent status and the action taken by them, howsoever important the same may be, in the interest of the State cannot be held to be an action taken by or on behalf of the Government as such within the meaning of Section 197 of the Code. 16. In the present case indeed the Executive Officer is appointed by the State Government and therefore removable from the service only by the State Government. 17. The ratio in Mohdd. Raja is of no assistance to the respondents in the present case. As noticed by me earlier, the Municipal Council is neither a Body corporate nor a public undertaking or Government company. Municipal Council is a local body created under Part IXA of the Constitution of India under Article 243Q of the Constitution. Article 243Q provides for the constitution of Municipalities and mandates that a State Legislature by a Statute may constitute by law the Municipalities with such powers and authority as may be necessary to enable them to function. Article 243 of the Constitution mandates that there shall be constituted in every State Nagar Panchayat or Municipal Council or Municipal Corporation depending upon the area. It is pursuant to the mandate of Part-IXA of the Constitution that the H.P. Municipal Act, 1994 was enacted and Municipal Councils were constituted for smaller urban areas and a Municipal Corporation for a longer urban areas in the State of Himachal Pradesh under the Himachal Pradesh Municipal Act, 1994. 18. In the present case as noticed earlier, the petitioner being public servants and removable by the State Government, the non-action attributed to them by the complainant HP. Board cannot but be in the discharge of their official duties and therefore, the prosecution could not have been instituted against him without the previous sanction of the competent Authority. 19. 18. In the present case as noticed earlier, the petitioner being public servants and removable by the State Government, the non-action attributed to them by the complainant HP. Board cannot but be in the discharge of their official duties and therefore, the prosecution could not have been instituted against him without the previous sanction of the competent Authority. 19. The Supreme Court in Abdul Wahab Ansari v. State of Bihar, AIR 2000 Supreme Court 3187 observed: Previous sanction of the competent authority being a precondition for the Court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, 1998(1) SCC 205 1998 AIR SCW 544: AIR 1998 SC 1524: 1998 Cri. L.J. 1242, similar contention had been advanced by Mr. Sibbal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had hold on the application of the accused that the provisions of Section 197 gets attracted. Rejecting the contention, this Court had observed (para 23 of AIR. Cri. L.J.): "The Legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself If a prohibition imposed by the Statute from taking cognizance the accused after appearing before the Court on process being issued, by an application indicating that Section 197 (1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there, should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings." The Court proceeded to observe. "The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the Court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority." "In the case of Ashok Sahu v. Gokul Saikia, 1990 Supp SCC 41, this Court had said that want of sanction under Section 197 of the Code is a prohibition against institution of the proceedings and the applicability of the Section must be judged at the earliest stage of the proceedings and in that case the Court directed the Magistrate to consider the question of sanction before framing a charge. In yet another case, in the case of P. Saha v. M.S. Kochar, 1979(4) SCC 177: AIR 1979 SC 1841: 1979 Cri. L.J. 1367, a three Judge Bench of this Court had held that the question of sanction under Section 197 Cr. PC. can be raised and considered at any stage of the proceedings and further in considering the question whether or not sanction for prosecution was required, it is not necessary for the court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. This being the position, We are of the considered opinion that the decision of this Court in Birendra K. Singhs case,2000(8) JT 248, does not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time" (Emphasis given) 20. The Apex Court in Suresh Kumar Bhrkamchand Jain v. Pandey Ajay Bhushan and others AIR 1998 Supreme Court 1524 held that when a Magistrate on the basis of a complaint, issues process for appearance of the accused and the accused when appears take a plea that offence alleged to have been committed by him in the discharge of his official duty and that he was not removable from his office save by or with the sanction of the Government and consequently the Court has no power to take cognizance except with the previous sanction of the Government as required under sub-section (1) of Section 197 of the Code, then in such a case, it would be unreasonable to hold that accused even though might have really acted in discharge of his official duty for which the complaints have been lodged yet he will have to wait till the stage under sub-section (4), Section 246 of the Code reaches or at least till he will be able to bring in relevant materials while cross-examining the prosecution witnesses. Their Lordships proceeded to observe: "On the other hand, it would be logical to hold that the matter being one dealing with the jurisdiction of the Court to take cognizance, the accused would be entitled to produce the relevant and material documents...". 21. In view of the fact that the acts of inaction complained by the HP Board against the petitioner and his co-accused President of the Council have reasonable nexus with the discharge of their official duties. It is the own case of the complainant that non-action on the part of the petitioner and his co-accused is in the discharge of their official duties. The petitioners, in the circumstances, are entitled to protection from criminal proceedings without sanction under Section 197 of the Code. 22. The present proceedings, having been initiated without sanction under Section 197 of the Code, are illegal. The learned Magistrate could not have taken cognizance of the offences alleged against them. The petitioners, in the circumstances, are entitled to protection from criminal proceedings without sanction under Section 197 of the Code. 22. The present proceedings, having been initiated without sanction under Section 197 of the Code, are illegal. The learned Magistrate could not have taken cognizance of the offences alleged against them. The reliance of the trial Magistrate in Raj Kishor Roy supra was misplaced. In Raj Kishor itself, their Lordships observed that bar under Section 197 of the Code of Criminal Procedure is mandatory where an act is allegedly done by the public servant in the course of his service or in the discharge of his duties. In Raj Kishor Rao what their Lordships observed was that there can be cases when it may not be possible to decide the question effectively without giving opportunity to the defence to establish that he had been acting in the official course of his duty and in such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered on the conclusion of the trial. In that case, the complainant was the first respondent had falsely implicated the appellant and his brother in order to teach them a lesson for not paying anything to the complainant. The complaint was that the first respondent had brought an illegal weapon and cartridges and falsely shown them to have been recovered from the appellant and his brother. It is in this context, their Lordships observed that this is a type of the case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the first respondent acted in the course of the performance of the duty and/or whether the defence is pretended or fanciful can only be examined during the course of the trial. 23. In the present case, there is no personal allegation against the petitioner. What is alleged against them is that the petitioner and his co-accused failed to discharge their official duties having not motivated the residents of the Municipal area of Chamba to get sewerage connections. 23. In the present case, there is no personal allegation against the petitioner. What is alleged against them is that the petitioner and his co-accused failed to discharge their official duties having not motivated the residents of the Municipal area of Chamba to get sewerage connections. In fact, when this case came up before this Court on August 27, 2004, an Inspection report of the Environmental Engineer Headquarters on the complainant Board was filed pursuant to the orders of this Court dated July 13, 2004. The report disclose that sewerage and sewage treatment system within the municipal Council, Chamba, has been constructed by the Irrigation and Public Health Department of the Government. The operations of the sewage and sewerage treatment system are being undertaken by the Irrigation-cum-Public Health Department of the Government of Himachal Pradesh and not by the Municipal Council. The report also discloses that the system covers nine Wards out of the total eleven wards. The complaint filed before the learned Magistrate alleged that: "7. That though the said local body has been provided with a sewage scheme/sewage treatment plant, it is not being operated to its optimum capacity, as the users have not been persuaded by them to take connection to the sewerage scheme. In all likelihood it is apparent that when the users under their control will not be persuaded by the Local Body to obtain connection to the Sewage Treatment Plan (STP) and the sewage will not be treated and if left unattended or discharged elsewhere, will aggravate the problem of pollution." 24. Learned Counsel for the petitioner argued at considerable length on the merits of the case. I do not intend to enter into the merits of the case although it is the own case of the State Board that these two sewage plants are being run by the Irrigation and Public Health Department of the State Government and not by the Municipal Council. But the fact remains that the non-action or inaction alleged against the petitioner and his co-accused is in respect of discharge of their official duties, responsibilities and functions and therefore, the provisions of Section 197(1) of the Code of Criminal Procedure are attracted and his co-accused was mislaid in the absence of sanction under Section 197 of the Code. 25. But the fact remains that the non-action or inaction alleged against the petitioner and his co-accused is in respect of discharge of their official duties, responsibilities and functions and therefore, the provisions of Section 197(1) of the Code of Criminal Procedure are attracted and his co-accused was mislaid in the absence of sanction under Section 197 of the Code. 25. So far the argument that Municipal Council is a Company for the purposes of Section 47 is concerned it is noticed to be rejected. Section 47 of the Water Act reads : "47. Officers by companies. – (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible for the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly; Provided that nothing contained in this sub-section shall render any such person liable to punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligent on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. - For the purposes of this section, - (a) "Company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." 26. It may be noticed that the Company for the purpose of Section 47 means any Body corporate including firm(s) or other Association of individual. There is no scope of dispute that Municipal Council is not a body corporate as noticed. For this reason too, the prosecution of the Officer as Executive Officer of the Municipal Council, Chamba is mislaid under Section 47 of the Act. 27. There is no scope of dispute that Municipal Council is not a body corporate as noticed. For this reason too, the prosecution of the Officer as Executive Officer of the Municipal Council, Chamba is mislaid under Section 47 of the Act. 27. As at presently advised, I need not go into the question whether any offence under Section 41, 43 and 44 of the Water Act is made out against the petitioner as the complaint has been held to be mislaid in the absence of sanction under Section 197 of the Code. 28. No other point was urged before me. 29. In result, the petition is allowed. The impugned order of learned Chief Judicial Magistrate, Chamba dated March 3, 2004 is set aside and quashed. The petitioner shall stand discharged. A copy of the order shall be remitted to the Chief Judicial Magistrate, Chamba immediately. 30. No costs. -