1. This is a Revision Petition preferred by the petitioners-accused 1 and 2 against the order of the learned District Magistrate, Chickmagalur in Cr.R.P. 8 of 1954, setting aside the order of the. learned Special Second Class Magistrate, Tarikere in C. C. 25/54 holding that sanction of Government to prosecute these petitioners was necessary under Section 197, Cr. P. C.
2. The facts that have given rise to this petition are briefly these:
3. Petitioners 1 and 2 are accused 1 and 2 and the respondent is the complainant in C. C. 25/54 on the file of the Special Second Class Magistrate, Tarikere. The complainant is a hotel-keeper at Kadur. The petitioners are President and Vice-president respectively of the Kadur Town Municipal Council. A-3 to A-10 are the employees in the said Municipality. Accused 11 and 12 are the Police Constables working at Kadur. The Respondent-complainant's petition was that on 16-5-1953 the said accused persons trespassed into his hotel and committed theft of moveables worth Rs. 150/-. The learned Magistrate referred the complaint to the police under Section 156, Cr. P. C. and the Police submitted a 'B' report. Anyway, the complainant undertook to prove the case and the case was taken on file.
The accused took a preliminary objection stating that the Court had no jurisdiction to take cognizance of the complaint as against A-l and A-2 inasmuch as no sanction of Government as contemplated under Section 197, Cr. P. C. was obtained by the complainant to prosecute them. The learned Magistrate upheld this contention and the proceedings against the present petitioners were dropped. The complainant took this order in revision to the District Magistrate, Chickmagalur who set aside the order of the trial Magistrate holding that no sanction of Government was necessary to prosecute them. As against that order, the present petitioners have come up in revision.
4. It appears to me that the order of the learned District Magistrate cannot be sustained. Section 197(1), Cr. P. C. runs as follows:
'When any person who is a Judge within the meaning of Section 19, I.P.C., or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a 'State Government' or 'the Central Government' 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
(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and
(b) in the case of a person employed in connection with the affairs of a State, of the State Government.'
Petitioners I and 2 who are President and Vice-President respectively of the Kadur Town Municipal Council, claim to be 'public servants' with in the meaning of Section 107, Cr. P.C. and contend that without the sanction of the local Government they cannot be prosecuted.
5. The point that arises for consideration is whether the petitioners are 'public servants' within the meaning of Section 197, Cr. P. C. That they are public servants' as defined in Section 21, I.P.C., cannot be disputed. Any person, whether receiving pay or not and who chooses to take upon himself the duties and responsibilities of a public servant, must be regarded as a 'public servant'. Further, Section 45(1) of the Mysore Town Municipalities Act 'inter alia' provides that every councillor, officer or servant of a municipality should be deemed to be a public servant within the meaning of Section 21, I.P.C. So there can be no doubt on the point that the petitioners are public servants within the meaning of Section 21, I.P.C.
6. But the question that has to be considered is whether the petitioners arc 'public servants' in the sense in which that term is used in Section 197, Cr. P.C. The conditions that are to be fulfilled for attracting the provisions of that section are:
(1) that the petitioners are public servants;
(2) that they are not removable from their office except with the sanction of the State Government; and
(3) that they are accused of an offence alleged to have been committed by them while acting or purporting to act in discharge of their official duties.
The learned-District Magistrate seems to think that the petitioners are not public servants who are not removable by the State Government and in support of that position, he relies upon Section 23(9), Mysore Town Municipalities Act. That provision runs as under :
'Every president and every vice-president of a municipal council shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the whole number of councillors at a special general meeting convened for the purpose; provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the whole number of councillors and at least fifteen days notice has been given of the intention to move the resolution.'
Relying on this provision, the learned District Magistrate opines that the petitioners (President and Vice-President) could be removed by a resolution of the Municipal Council expressing want of confidence in them and passed by a majority of not less than two-thirds of the whole number of councillors, and that they are not removable by the State Government. Again, to fortify that view, the learned District Magistrate relies on a case reported in -- 'In re S.S. Shirke', AIR 1931 Bom 527 (A). It appears to me that the view taken by the leamed District Magistrate is not correct,
7. The word used in Section 197(1), Cr. P. C. is 'removable' while the word used in Section 23 (9), Mysore Town Municipalities Act is 'vacated'. There appears to be much difference between these two words. Different words have been used in different sections of the Town Municipalities Act. It must be presumed that the Legislature had an object in making use of different expressions in different sections. In Section 23(6), Town Municipalities Act it is provided that every president, who, for a period exceeding two months and every vice-president who for a period exceeding one month, absents himself from the municipality in such manner as to be unable to perform his duties as such president or vice-president, shall cease to be president or vice-president, unless leave so to absent himself has been granted by the municipal council. The word used in this provision is 'cease'.
Again in Section 23(8) of the same Act it is provided that if a vice-president of a municipal council is elected or appointed as president of the council, he shall be deemed to have vacated his office as vice-president. The word employed is Vacated', as used in Sub-clause (9) of Section 23. It cannot be said that those different words have been used in different sections without any purpose. 'To vacate an office', 'ceasing to hold an office' and 'removable from an office' are quite distinct acts. A person may vacate or cease to hold an office as a result of his own voluntary act. A president or vice-president of a Municipal Council may absent himself for a particular period whereupon he will cease to be a president or vice-president. As a result of a resolution expressing no confidence in a president or vice-president by a majority of not less than two-thirds of the municipal councillors, a president or vice-president will have to vacate his office.
But the word 'removable' appearing in Section 197, Cr. P. C. connotes altogether a different meaning. For the removal of a president or vice-president the motion must originate from without, and the only agency by which a president or a vice-president can be removed from the office is the local Government. This removal of president or vice-president is provided for in Section 23(10), Town Municipalities Act. The word used is 'removable'. It provides that a president and vice-president shall, after an opportunity is afforded for hearing him, be 'removable' from his office as such president or vice-president by the Government for misconduct in the discharge of his duties or for neglect of or incapacity to perform his duties or if he is unable to pay his debts. A president or a vice-president of a municipal council ceasing to be such for absenting himself from the municipality for a fixed period or his vacating the office in consequence of a resolution expressing no confidence in him passed by a majority of not less than two-thirds of the councillors, or a vice-president vacating his office as vice-president when he becomes a president, or a president or a vice-president vacating his office by resignation, are different and cannot come within the expression 'not removable from his office' occurring in Section 197(1), Cr. P. C.
In this connection, I would like to refer to the decision reported in -- 'Hidayatullah v. Emperor', AIR 1933 Sind 161 (B). That case also relates to the prosecution of the president of the municipality and their Lordships have held that 'relinquishment of an office', resignation of an office, vacating or ceasing to hold an office are different from the expression 'removed from an office', and that it is only the State Government that can remove the president of a municipality. The case relied on by the learned District Magistrate, reported in AIR 1931 Bom 527 (A), is not of much help. In that case, the prosecution related to an administrative officer of the School Board appointed under Section 9(1), Bombay Primary Education Act. That section itself (9(2)) provided that the School Board administrative officer shall not, save with the previous sanction of the Government, he removable from office, reduced or suspended, unless by the votes of at least two-thirds of the whole number of councillors. And, therefore their Lordships held that the administrative officer was a person who could be removed from his office without the previous sanction of Government when there was a clear majority of votes of at least two-thirds of the whole number of councillors. The facts of that case appear to he different from the facts of the present case. We do not find the words corresponding to Section 9(2), Bombay Primary Education Act in Section 23(9), Mysore Town Municipalities Act.
I am, therefore, of opinion that the learned District Magistrate was not right in relying upon Section 23(9) and coming to the conclusion that no sanction of Government was required to remove a president or a vice-president of a Town Municipal Council.
8. I am also of opinion that the said order of the learned District Magistrate is without jurisdiction. It appears to me that the learned District Magistrate should not have exercised his revisional jurisdiction in a matter of this type. He purports to have made this order under Section 436, Cr. P. C. which runs thus :
'On examining any record under Section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204 or into the case of any 'person accused of an offence' who has been discharged: Provided that no Court shall make directions under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of shewing cause why such direction should not be made.'
It appears to me that the powers of revision given to a District Magistrate under Section 436 are limited, those powers can be exercised only for the limited purpose indicated in the section. A further inquiry can be ordered under that section under the revisional jurisdiction of a District Magistrate in cases where a complaint has been dismissed under Section 203 or Sub-section (3) of Section 204 or in cases where a person accused of an offence has been discharged. The present order of the learned District Magistrate holding that no sanction of Government was necessary to prosecute the present petitioners can neither be said to be an order of dismissal under Section 203 or one under Sub-section (3) of Section 204, nor an order of discharge made under Section 209, 253 or 259, Cr. P, C. Therefore I am of opinion that the order of the learned District Magistrate was without jurisdiction. The only course open to the learned District Magistrate, if he found that the order of the learned Magistrate holding that previous sanction of Government was necessary to prosecute the petitioners was wrong, was to make a report of the same to the High Court as contemplated in Section 438, Cr. P. C. The present order made by the learned District Magistrate is liable to be quashed.
9. From a perusal of the allegations made in the complaint petition, it is clear that the petitioners are accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duties. Hence the provisions of Section 197(1), Cr. P. C. are attracted. I think that the petitioners are entitled to the benefit of that section.
10. In the result, this revision petition is allowed and the order of the learned District Magistrate is set aside and that of the learned trial Magistrate restored.
11. Revision allowed.