1. These appeals have been preferred by Rudragouda Rachangouda Patil, accused No. 1, and Kallayya Ulavayya Hiremath, accused No. 2, who have been convicted respectively under Sections 409 and 466 and under Section 409 read with Section 109 of the Indian Penal Code.
2. The accused as well as a third person Subbaya Venkaya Havalad were prosecuted under Sections 409, 409 read with Section 109, 466, 466 read with 109, and 467 of the Indian Penal Code. Accused No. 3 was acquitted. Accused No. 1 is the President of the Taluka Local Board of Kalghatgi, and accused No. 2 is the sub-overseer of the same Taluka Local Board. At the trial the learned Sessions Judge has not considered the question which was mainly argued before us in this appeal, viz., whether the Court had jurisdiction to try this case in view of the provisions of Section 197 of the Criminal Procedure Code. That section runs thus :-
When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a Local Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Local Government.
There is no doubt that accused No. 1 is a 'public servant' as defined in Section 21 of the Indian Penal Code and Section 135 of the Bombay Local Boards Act, VI of 1923. Under Section 26 of the Bombay Local Boards Act he is removable from office as President of the Taluka Local Board by the Government for misconduct, or neglect of or incapacity to perform his duty. It has been contended by Mr. O'Gorman for the appellants that as accused No. 1 was not removable from his office save by or with the sanction of the Local Government, the Court had no jurisdiction to take cognizance of or try the offences.
3. The learned Government Pleader has drawn our attention to the provisions of Section 31 of the Bombay Local Boards Act which runs as follows :
The Government in the case of a district local Board, and the Commissioner in the case of a taluka local board, may, if it or he thinks fit, on the recommendation of the local board, remove any member of such local board, elected or appointed under this Act, after giving him an opportunity of being heard and after such inquiry as the Government or the Commissioner, as the case may be, deems necessary if such member has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or has become incapable of performing his duties as a member of the local board.
This section, it will be seen, empowers the Commissioner to remove any member of a Taluka Local Board, and the learned Government Pleader has contended that as accused No.l is not only the President but also a member of the Taluka Local Board and as the Commissioner has power to remove him as such member from such Board, on such removal he would automatically cease to be President of the Taluka Local Board. That being so, it is argued that there are more than one ways in which the President of the Taluka Local Board can be removed from his office under the Act, viz., (1) by Government under Section 26, and (2) by his removal as a member under Section 31 resulting necessarily in his removal from the office of the President. The argument is no doubt ingenious, but having given the matter our fullest consideration, we feel that it does not adequately meet the contention raised by Mr. O'Gorman, It is true that under Section 31 the Commissioner may remove a member of the Taluka Local Board and that the effect of such removal would be, if such member was President of the Taluka Local Board, that he would cease to be such President. But accused No. 1 has been tried as President of the Taluka Local Board of Kalghatgi, and the question that arises in deciding whether Section 197 of the Criminal Procedure Code applies is whether he cannot be removed as President of the Taluka Local Board save by or with the sanction of the Local Government or some higher authority. It is clear from the terms of Section 31 of the Bombay Local Boards Act that the Commissioner has no authority to remove a President of the Taluka Local Board as such President. All he can do is to remove him as a member of the Board. There is no doubt that the provisions of Section 197 have reference to such provisions in different Acts as are contained in the present instance in Section 26 of the Local Boards Act, which expressly lays down that every President or Vice-President shall be removable from office, as such President or Vice-President, by the Local Government for misconduct, or neglect of or incapacity to perform his duty. It must, therefore, be held that a President of a Taluka Local Board cannot be removed from his office qua such President save by the Local Government. That being our opinion, we must hold that in the present case the Court had no jurisdiction to take cognizance of any offence or offences committed by accused No. 1 or alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Local Government.
4. Accused No. 1 has been convicted under two Sections, 409 and 466. The charge as to the latter section relates to an alleged forgery in respect of an: order dated August 4, 1935, passed by accused No. 1 directing the work which is the subject-matter of this case to be done by one Kallappa, who, according to the prosecution, had nothing to do with the execution of the work. The learned Sessions Judge has held in respect of this offence that the order, exhibit 25, is a document which purported to have been made by accused No. 1 in his official capacity and nothing has been urged before us against this view. The order is signed by the accused as President of the Taluka Local Board, and there can be no doubt from the evidence that the order in question purports to have been passed by accused No. 1 in his official capacity as such President. That being so, it is clear that so far as this offence is concerned, the Sessions Court had no authority to try accused No. 1 without the sanction of the Local Government under Section 197 of the Criminal Procedure Code. It, therefore, becomes unnecessary, in our opinion, to examine the question whether the other act of accused No. 1 alleged to constitute an offence under Section 409 was also done or purported to be done by him in the discharge of his official duty. It is clear from Queen-Empress v. A. Morton I.L.R. (1885) 9 Bom. 288. as well as from the principle enunciated in Subrahmmia Ayyar v. King-Emperor I.L.R. (1901) Mad. 61 : 3 Bom. L.R. 540. that where the Court has acted without jurisdiction with regard to a part of the trial, the whole proceedings are vitiated by the illegality committed and that any conviction based on such proceedings cannot stand. This principle would apply not only to the trial of accused No. 1 under Section 409 but also the trial of accused No. 2 in the present case.
5. We must, accordingly, set aside the convictions of both the accused and direct that any fine paid by accused No. 1 be refunded. This of course will be without prejudice to any fresh proceedings that may be taken with the proper sanction of Government under Section 197.
6. As regards accused No. 2, we may remark that even on the finding of the learned Sessions Judge, viz., that accused No. 2 assisted accused No. 1 in allowing Kallappa to draw the amount of Rs. 276-14-0, there does not appear to be sufficient material to sustain his conviction under Section 409 read with Section 109, Indian Penal Code. It is, therefore, doubtful whether there would be any sufficient case for proceeding against him in case it is decided to take fresh proceedings in this matter.
7. The bail bonds should be cancelled.
8. We have had to dispose of these appeals on a preliminary point that was not taken in the lower Court but one which goes to the root of the case. Accused No. 1 is the President of the Taluka Local Board of Kalghatgi. He is a statutory public servant under Section 135 of the Bombay Local Boards Act. Under Section 26(1) of the Act it is provided that a President or a Vice-President shall be removable from office, as such President or Vice-President, by the Local Government. Prima facie, therefore, Section 197, Clause (I), of the Code of Criminal Procedure, applies, and the District Magistrate could not take cognizance of the case without the sanction of the Local Government.
9. The learned Government Pleader made an ingenious attempt to get out of this difficulty by relying on Section 31 of the Act where it is provided that in the case of a Taluka Local Board the Commissioner may remove any member of the board for misconduct. The argument is that the Commissioner can indirectly remove a President of a Taluka Local Board from his office as President by removing him from his office as a member. The learned Counsel for the appellants contends that as the term of office of President and Vice-President and their liability to be removed are specifically dealt with in Section 26, Section 31 must be taken to refer to members other than a President or Vice-President. That is a doubtful proposition. But whether that be so or not, I think the language of Section 197 of the Criminal Procedure Code was intended to apply to such express provisions as to removability as we find in Section 26(1) and not to indirect powers such as it is suggested the Commissioner may possess. There is in fact an obvious correspondence between the language of Section 197 and that of Section 26(1) of the Local Boards Act. The Commissioner could not remove the accused qua President. He could only remove him, if at all qua member. But he has been prosecuted qua President. The argument of the learned Government Pleader would render the provisions of Section 26(1) practically superfluous in the case of the Taluka Local Board. I agree, therefore, that sanction was necessary to the trial of accused No. 1 on the charge of forgery at any rate, and that no sanction having been obtained the whole trial must be considered to be invalid.