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Kalusing Dalesing Rajput Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 651 of 1968
Judge
Reported in(1969)71BOMLR669
AppellantKalusing Dalesing Rajput
RespondentThe State of Maharashtra
DispositionApplication allowed
Excerpt:
bombay village panchayats act (bom. iii of 1959), sections 38, 7(3) - bombay village grampanchayats (gram sabha meetings) rules, 1950, rules 11, 16, 40--whether obligatory on sarpanch to prepare minutes of dram sabha meeting.;under section 38(2)(c) of the bombay village panchayats act, 1958, the obligation and duty to prepare minutes or proceedings of the gram sabha meeting are on the officers and servants of the panchayat and the sarpanch is not concerned with the same, except with exercising supervision and control over the acts done and action taken by such officers and servants of the panchayat.;the words 'keeping and maintenance of records and registers' in section 38(2)(c) of the act do not mean mere entrusting the custody thereof to the secretary but connote the obligation of..........or other office-bearers. preparation, maintenance and keeping of the records of the panchayat or grampanchayat normally is a ministerial act, and unless the statute so positively directs, preparation and maintenance of the minutes must be deemed to be the duty of the ministerial staff, inasmuch as such preparation does not involve any question of taking decision or laying down any policy. the minutes or proceedings of a meeting merely represent what transpired at the said meeting either of the gram sabha or panchayat. section 60 of the act provides for the appointment of one or more secretaries for every panchayat or group of panchayats and he is to he appointed by the chief executive officer of the zilla parishad. section 61 of the act provides for the appointment of 'such servants as.....
Judgment:

V.S. Deshpande, J.

1. The petitioner-accused was the Sarpanch of the village Panchayat of village 'War, Taluka and District Dhulia. He was elected Sarpanch on December 5, 1965, defeating respondent No. 2 hereinafter referred to as the complainant, and continued to be such Sarpanch till April 5, 1967, when he was disqualified and removed. A meeting of the Gram-Sambha Was convened on November 26, 1966. It is common ground that no such meeting in fact was held, though there is controversy as to whether 7 members were present and the meeting had to be adjourned for want of quorum, or not a single member turned up at the meeting'. On January 8, 1967, the Secretary of the Panchayat, Dattatraya Madhav, scribed the minutes showing as though the meeting of the Gram-Sambha was held on November 26, 1966, and the said minutes were signed by the' accused as Sarpanch. The complainant took possession of the said minute book and sent it to the Collector, complaining that the said minutes were false. On January 11, 1967, the complainant lodged this complaint against the accused for offences under Sections 420 and 466, Indian Penal Code alleging that the accused deliberately prepared false minutes with a view to deceive the authorities. Ultimately, the learned Magistrate charged the accused for offence under Section 167, Indian Penal Code. The accused admitted that no meeting of the Gram Sabha in fact took place on November 26, 1966, but according to him 7 members were present and the meeting had to be adjourned for want of quorum. He admits his signature on the minutes. His case, however, is that the complainant himself dictated the said minutes to the Secretary and ho put his signature thereon in a hurry without reading the same.

2. At the trial, the complainant examined himself and four other witnesses, who were shown to be present at the meeting according to the minutes, but who have deposed on oath that they never attended the meeting. The accused examined the Secretary, who stated that he had written the minutes at the instance of the complainant and obtained the signature of the accused, without reading out the said minutes to him. Two more defence witnesses also were examined by the accused, but reference to them is, however, unnecessary. Both the Courts accepted the complainant's case and disbelieved the say of the accused as well as his witnesses and convicted the accused for offence under Section 167, Indian Penal Code and sentenced him to pay a fine of Rs. 200 in default to suffer simple imprisonment for one month.

3. Mr. V.S. Kotwal, the learned advocate appearing for the petitioner-accused, contends that both the Courts failed to appreciate the evidence of Dattatraya Madhav, the Secretary, properly. He says, it is ignored that the evidence given by the Secretary is highly damaging to his career of more than 15 years and the same could not have been given by him unless the same was true. I am not impressed with this contention of the learned advocate. Courts of facts have disbelieved him and I do not find any good reason to take a different view.

4. The main contention of Mr. Kotwal however is that assuming that the facts found by the Courts below arc true, even then no offence under Section 167, Indian Penal Code can be said to have been made out. I find much substance in this contention of Mr. Kotwal. Before any accused is said to have committed an offence of framing incorrect document with intent to cause injury, within the meaning of Section 167, Indian Penal Code, four ingredients are required to be proved: (1) It must be proved that the accused was a public servant. (2) Then it must also be proved that the accused was charged with the preparation of the said document. (3) It must also be proved that the accused in fact framed or prepared the said document in his capacity as such public servant. (4) Lastly, it must be proved that either he intended to cause injury or knew that injury was likely to be caused by his act to any person.

5. Mr. Kotwal does not dispute that the accused is a public servant. In fact, in view of the provisions of Section 184 of the Bombay Village Panchayats Act, 1958, hereinafter referred to as the Act, this position can hardly be disputed. The real question however that requires consideration is whether the accused was saddled with the duty of preparing the minutes of the Gram Sabha meeting and whether in fact he framed or prepared the said minutes 1 Under Section 9 of the Act a Panchayat is to be a body corporate having perpetual succession and a common seal. The duty to convene at least two meetings of the Gram Sabha every year is cast on the Sarpanch or Upa-Sarpanch, under Section 7(7) of the Act. There is however no provision as to the preparation, maintenance and keeping of the minutes of the proceedings of the Gram Sabha meeting in the Act. The Panchayat, being a corporation cannot have its mind or the will. The will and the acts of the Panchayat are regulated and governed by the statute of which it is merely a creature. Normally, it is for the statute to decide what powers and duties should be conferred on the Gram Sabha or on the Panchayat or on the Sarpunch or other office-bearers. Preparation, maintenance and keeping of the records of the Panchayat or Grampanchayat normally is a ministerial act, and unless the statute so positively directs, preparation and maintenance of the minutes must be deemed to be the duty of the ministerial staff, inasmuch as such preparation does not involve any question of taking decision or laying down any policy. The minutes or proceedings of a meeting merely represent what transpired at the said meeting either of the Gram Sabha or Panchayat. Section 60 of the Act provides for the appointment of one or more Secretaries for every Panchayat or group of Panchayats and he is to he appointed by the Chief Executive Officer of the Zilla Parishad. Section 61 of the Act provides for the appointment of 'such servants as may be necessary for the proper discharge of its (Panchayat's) duties'. Sub-section (4) of Section 62 of the Act enjoins on the Secretary the duty of keeping the accounts of the Panchayat in such form as may be prescribed and also of preparing the annual report of the administration of the Panchayat for approval by the Panchayat. Excepting this special provision in regard to the keeping of accounts and the preparation of the annual report, there is 110 provision throughout the Act requiring any particular officer to prepare and frame the other documents or records of the Panchayat. Prima facie, therefore, preparation of the minutes or proceedings of any meeting of the Gram Sabha or Panchayat cannot be said to be the statutory obligation either of the Sarpanch himself or even of the Secretary personally. This ministerial work is capable of being done or performed by any servant of the Panchayat.

6. Strong reliance seems to have been placed before the Courts below on the provisions of Section 38 of the Act in support of the contention that the said section casts a duty upon the Sarpanch to prepare such minutes of the meeting of the Gram Sabha. To my mind, reliance on Section 38 of the Act for this purpose is wholly misconceived. As shown in its marginal note, Section 38 provides for executive power of the Panchayat and defines the functions of the Sarpanch and Upa-Sarpanch. Sub-section (7) of Section 38 vests the executive power of the Panchayat in the Sarpanch, but this is for the purpose of carrying out the provisions of this Act and the resolutions passed by the Panchayat. In the present case we are not so much concerned with the executive power of the Panchayat or even with the power, for that matter, of the Sarpanch, We are more concerned with his duty, because the allegation of the prosecution is that the Sarpanch is saddled with the duty of preparing the minutes of the Gram Sabha meetings. However, even if it is assumed that this executive power of the Sarpanch is coupled with incidental duties, this provision cannot be relied on unless it is shown that there is some provision in the Act, specifically requiring the Sarpanch to prepare such proceedings or there is some resolution passed by the Panchayat casting such duty on the Sarpanch. It is true that this section further lays down that the Sarpanch 'shall be directly responsible for the due fulfilment of the duties imposed upon the Panchayat by or under this Act.' Here again, in the absence of any positive provision requiring the Panchayat to prepare such minutes, it is not possible to infer an obligation on the Sarpanch without more, to prepare the minutes or proceedings by himself. Mr. Rege, the learned Assistant Government Pleader, or Mr. Sharad Manohar appearing for the complainant could not satisfy me how any obligation of the Sarpanch for preparation of the minutes of the Gram Sabha meeting can be spelt out from the phraseology of Sub-section (1) of Section 38 of the Act.

7. On the contrary, Mr. Kotwal, the learned advocate appearing for the accused, appears to be justified in relying on Clause (c) of Sub-section (2) of this section in support of his contention that the actual obligation and duty to prepare such minutes or proceedings of the Gram Sabha meeting is on the officers and servants of the Panehayat, and the Sarpanch is not concerned with the same, except with exercising supervision and control over the acts done and action taken by all officers and servants of the Panchayat. The said Clause (c) of Sub-section (2) of Section 38 in terms requires the Sarpanch to exercise supervision and control over the acts done and action taken by all officers and servants of the Panchayat, including acts pertaining to 'keeping and maintenance of records and registers of the Panchayat in the custody of the Secretary'. The words, 'keeping and maintenance of records and registers' cannot be narrowly construed to mean mere entrusting the custody thereof to the Secretary. To my mind, this connotes the obligation of preparation and maintenance of such records and registers and there is no good reason why the minutes or proceedings of the Gram Sabha meeting or Panchayat meeting should be excluded from 'records and registers of the Panchayat' contemplated under this clause. Clause (h) of Sub-section (2) of Section 38 also requires the Sarpanch to cause to be prepared all statements and reports required by or under this Act. This again gives an unmistakable indication that Sarpanch is never expected to prepare any part of the record of the Panchayat himself and his obligation only is to see to it that such record is prepared by the officers and servants of the Panchayat. Duty to supervise and control the acts is not and cannot he the same thing as the doing of the act itself. In view of the scheme and the provisions of the Act, it is impossible to hold that the Sarpanch was charged with the preparation of this document, namely, the minutes of the Gram Sabha meeting, within the meaning of Section 167, Indian Penal Code.

8. Mr. Rege, the learned Assistant Government Pleader, and Mr. Sharad Manohar relied on the provisions of Rules, styled as the Bombay Village Gram-punchayats (Gram Sabha Meetings) Rules, 1959. The provisions of Rule 11 and Rule 16 were pressed into service in support of the contention that the Sarpunch must be deemed to have been saddled with the duty of preparing such minutes. All that Rule 16 provides is that '' a brief record of the proceedings of every meeting of the Gram Sabha shall be kept in Marathi in a bound book.' The rule does not provide as to who has to keep the record of such proceedings. This rule also docs not provide as to who is to sign such record by way of authentication. This rule further requires that a copy of the proceedings shall be sent to the District Village Panchayat Officer within seven days of such meeting. The implication of this requirement is that even if the Sarpunch is on leave or is not available, a copy of such proceedings has got to be sent to the Officer mentioned in the rule. The implication of this provision clearly is that the Sarpunch is not only not required to prepare such minutes, but his association with such minutes also is not held as necessary for a copy of such minutes being sent to the named Officer. Rule 11 lays down that the minute of the previous meeting shall be read at the beginning of every meeting and shall be confirmed and signed by the person presiding at the meeting. Two important features of this rule have a material bearing on the controversy that is raised in the present case. In the first instance, it is only Rule 11 that provides for signature on such minutes. Secondly, the minutes are required to be signed by the person presiding at the next meeting and not necessarily by the Sarpaneh. Sub-section (5) of Section 7 of the Act in terms provides for presiding over the Gram Sabha meeting by electing one of the members of the Panchayat present, in a given situation. The Gram Sabha meeting thus can be presided over by any other Panchayat member than the Sarpaneh. Thirdly, the minutes of the previous meeting are already prepared, even before they are signed by the person presiding at the next meeting. It is well settled that such confirmation of any minutes at the next meeting is done only by way of verification and the minutes do not cease to be valid till the date of confirmation. In fact the Gram Sabha meetings are held normally twice a year and if the validity of the minutes were to depend upon their confirmation in the next meeting and upon their being signed thereat, the requirement of Rule 16 in regard to sending a copy thereof to the named Officer within seven days of the first meeting could never have been complied with. It is thus clear that neither Rule 11 nor Rule 16 directly or indirectly can be said to have laid down any obligation on the Sarpunch to prepare such minutes or proceedings of the Gram Sabha meeting or even to sign the same. On the other hand, the implications of the provisions of the said rules are pointers to the contrary. Thus, the second ingredient of the offence must be held as absent, inasmuch as there is no material to hold that the accused, the Sarpaneh, was under any obligation to prepare the minutes of the meeting.

9. The next question is whether the accused did -in fact prepare the minutes. Admittedly the minutes have been scribed by the Secretary. There is also no evidence as to who had dictated the said minutes and as to whose brain was working behind it. But admittedly these minutes are signed by the accused. Once it is found that he was under no obligation to prepare such minutes, his mere signature assumes quite a different complexion. This apart, the above discussion clearly shows that signature of the Sarpunch cannot be said to be a part of the act of preparing the minutes. The minutes are complete as soon as they are prepared and Rule 11 contemplates signature of the Sarpunch only at the next meeting when the minutes are confirmed and only if the Sarpunch happens to be the person presiding over the said meeting. Otherwise any other person presiding is to sign, by way of confirmation. The rules do not contemplate the minutes being signed by the Sarpanch even if he happens to preside over the meeting to which the minutes relate. Rule 40 of the Bombay Village Panchayats (Meetings) Rules, 1959 presents a slight contrast on this point. Under this rule, the proceedings of the meeting of the Panchayat are required to be signed by the person presiding at the meeting, irrespective of whether he is Sarpanch, Upa-punchayats or other member of the Panchayat. As against that, the minutes of the Gram Sabha meeting are contemplated to be signed only at the confirmation stage at the next meeting of the Gram Sabha. That is the combined effect of Rule 11 and Rule 16 of the Bombay Village Gram-punchayats (Gram Sabha Meetings) Rules, 1959. If the signature of the Sarpanch on the minutes or proceedings of the Gram Sabha meeting is not the requirement either of the Act or the rules framed thereunder, the same must necessarily be held as an idle act on the part of the Sarpanoh in the context of the facts of this case, as admittedly no confirmatory meeting is ever held and his signature on the minutes alone cannot be an indication of his having prepared the said minutes. The third ingredient of the offence also must, therefore, be held as non-existent.

10. In the view that I am taking in regard to the second and the third ingredients of the offence, it becomes unnecessary to deal with the fourth ingredient, as the same also does not appear to me to be free from difficulty in the circumstances of this case.

11. It is no doubt true that no Gram Sabha meeting had taken place on November 26, 1966 and false minutes have admittedly been written in the proceeding book, which have been signed by the accused. Obviously this was to avoid the disqualification under Section 7(7) of the Act to which the Sarpanch had exposed himself by not holding the second gram sabha meeting of the year. It should appear odd that in spite of these admissions, the accused should he held as not having committed this offence. However, admission of facts is not the same thing as confession of the guilt. The short point that requires consideration is whether the accused has committed the offence with which he was charged, and in view of the discussion above the answer must be recorded in the negative, though these acts may come under some other penal provision- Mr. Sharad Manohar urged that the accused must be held as guilty at any rate of abetment of the offence under Section 167, Indian Penal Code. It is not possible to convict the accused for some other offence with which he was not charged, particularly when it also involves recording of a, finding that somebody else has also committed the offence.

12. The result is that the revision application is allowed, the conviction and sentence of the petitioner-accused is sot aside and he is acquitted. Fine, if paid, be refunded.


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