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The State Vs. B. Chikkavenkatappa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Case No. 36 of 1964
Judge
Reported inAIR1965Mys253; 1965CriLJ379; (1965)1MysLJ26
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 197, 203 and 438; Mysore Town Municipalities Act, 1951 - Sections 23(9) and 23(10); Bombay District Municipal Act, 1901 - Sections 23(7)
AppellantThe State
RespondentB. Chikkavenkatappa and anr.
Excerpt:
.....the learned sessions judge, the learned counsel for the complainant did not dispute that the vice-president was a public servant, who was removable from his office only by or with the sanction of the state government but the learned counsel contended that the criminal acts complained of against the first accused were not done by him while acting or purporting to act in the discharge of his official duties and hence no previous sanction of the government was necessary under s. but took the view that the criminal acts complained of could not be said to have been done by accused 1 while acting or purporting to act in discharge of his official duties. considering the terms of this sub-section it may well be said that a vice-president can be removed from his office not only by the..........by the state government under s. 197, cr. p.c. the contention of accused 1 was that he was the vice-president of the bangarpet municipal council and as such he was a public servant removable only by or with the sanction of the state government and the alleged acts, even if true, were done while acting or purporting to act in the discharge of his official duties as the vice-president while inspecting the complainant's building to see whether the complainant was constructing the building in accordance with the licence granted to him.(4) the learned magistrate accepted the contentions of accused 1 and held that he was a public servant and that the acts complained of were committed by accused 1 while acting or purporting to act in discharge of his official duties. the learned magistrate.....
Judgment:
ORDER

(1) This is a reference made under S. 438, Cr. P.C. by the IIIrd Additional Sessions Judge,--Bangalore Division, Bangalore, who, on examining the records of the Special First Class Magistrate, K.G.F., in C. C. No. 3214 of 1962, felt that the Order passed by the said Magistrate on 11-3-1963, purporting to discharge Accused 1 in that case, was erroneous.

(2) The facts necessary for deciding this reference are only few and are as follows. Before the Magistrate, Respondent 1 in this Revision Case was the Complainant and Respondent 2 was Accused 1. It was alleged in the complaint that while the complainant was supervising construction of his house Accused 1 and another person, Accused 2, entered his house and that Accused 1 (Respondent 1) took his chappals into his hand, raised his hand and came upon the complainant in a furious mood saying that he would hit the complainant and dishonour him (the complainant) with object of intimidating him in order to force him to close the window, which he had put in the building under construction. According to the complainant both the accused were guilty of offences punishable under Ss. 355 and 506, I.P.C.

(3) When Accused 1 appeared before the Magistrate in pursuance of the summons issued to him, he took up a preliminary objection that the court could not take cognizance of any complaint against him, unless there was previous sanction by the State Government under S. 197, Cr. P.C. The contention of Accused 1 was that he was the Vice-President of the Bangarpet Municipal Council and as such he was a Public servant removable only by or with the sanction of the State Government and the alleged acts, even if true, were done while acting or purporting to act in the discharge of his official duties as the Vice-President while inspecting the complainant's building to see whether the complainant was constructing the building in accordance with the licence granted to him.

(4) The learned Magistrate accepted the contentions of Accused 1 and held that he was a public servant and that the acts complained of were committed by accused 1 while acting or purporting to act in discharge of his official duties. The learned Magistrate felt that the complaint was not maintainable in the absence of sanction under S. 197, Criminal P.C. and he passed the order purporting to discharge Accused 1. Though the order is styled as an order of discharge it is clear that the learned Magistrate purported to dismiss the complaint under Section 203, Criminal P. C.

(5) Feeling aggrieved by the order of the learned Magistrate, the complainant preferred a Revision Petition before the IIIrd Additional Sessions Judge, Bangalore, in Criminal Revision Petition No. 12 of 1963. Before the learned Sessions Judge, the learned Counsel for the Complainant did not dispute that the Vice-President was a public servant, who was removable from his office only by or with the sanction of the State Government but the learned Counsel contended that the criminal acts complained of against the first accused were not done by him while acting or purporting to act in the discharge of his official duties and hence no previous sanction of the Government was necessary under S. 197, criminal P.C. and that the learned Magistrate should have taken cognizance of the complaint against Accused 1.

(6)The learned Sessions Judge has proceeded on the basis that Accused 1 was a public servant who was removable from his office only by or with the sanction of the State Government; but took the view that the criminal acts complained of could not be said to have been done by Accused 1 while acting or purporting to act in discharge of his official duties. Hence, the learned Sessions Judge felt that no sanction of the Government was necessary under S. 197, Criminal P. C. and that the Magistrate was not justified in dismissing the complaint on the ground of want of sanction under S. 197, Criminal P. C.

(7) Mr. Byra Reddy, Learned Counsel for the Complainant (Respondent 1) has contended before me that Accused 1 who was the Vice-President of Bangarpet Municipal Council, was not a person who could be removed from his office only by or with the sanction of the State Government and hence S. 197, Criminal P. C. has no application to a complaint against him (Accused 1). Mr. Byra Reddy referred to the provisions of sub-ss. 9 and 10 of S. 23 of the Mysore Town Municipalities Act 1951 (which will hereinafter be referred to as the Mysore Act) and contended that the Vice-President of a Municipal Council could be removed from his Office not only by or with the sanction of the State Government but also by the Municipal Council itself by passing a resolution of want of confidence.

(8) The relevant portions of sub-ss. (9) and (10) of S. 23 of the Mysore Act read as follows :-

'(9) 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;'

* * * *

'(10) Every President and every 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 if he is unable to pay his debts.'

The proviso to sub-s. (9) and the explanation to sub-s. (10) are no relevant for the purpose of this case.

[9] In support of his contention Mr. Byra Reddy relied on the decision of the Bombay High Court in Vishvamohan v. Mahadu, A.I.R. 1954 Bom 191. In that case, the question which came up for consideration was whether the sanction of the Government under S. 197, Criminal P.C. was required before prosecuting the President or the Vice President of a Municipality, constituted under the Bombay District Municipal Act 1901, (hereinafter referred to as the Bombay Act). Section 23(7) of the Bombay Act reads as follows:

'The terms of office of every president and every vice-president shall cease on the expiry of his term of office as Councillor. Every President who is elected by the Municipality and every Vice President shall be removable from his office as such president or vice-president by the Municipality by a resolution passed to that effect, provided that three-fourths of the whole number of the councillors of the Municipality vote in favour of such resolution and provided further that before such resolution is passed the president or vice-president is given a reasonable opportunity of showing cause why such a resolution should not be passed. Every president and every Vice-President shall be removable from his Office as such president or Vice-President by the (State) Government for misconduct, or neglect of, or incapacity to perform, his duty and a President or Vice-President so removed shall not be eligible for re-election during the remainder of the term of office of the Municipality.'

Dealing with the question whether the President and the Vice-President of a Municipality under the Bombay Act were removable only by or under the sanction of the Government. Shah J., observed as follows:--

'That the term of his sub-section provided for the removal, inter alia of a Vice-President by two different authorities. The Municipality itself under the first part of the sub-section could remove a vice-president from his Office by a resolution passed by three fourths of the whole number of the councillor of the Municipality. It may be noted that the power conferred by this part of the sub-section upon the Municipality is unrestricted in its scope and extent. In other words, the Municipality, if it so chooses, can remove a President or a Vice-President from his Office for no apparent reason whatsoever, more so when he is guilty of misconduct or neglect of or incapacity to perform his duty as President or Vice-President, as the case may be. The power conferred on the State Government by the second part of the sub-section to remove a President or a Vice President, however, is restricted in its scope and extent. The State Government can remove a President or a Vice President of a district Municipality only when he is found guilty of misconduct or neglect of, or of incapacity to perform his duty as President or vice-president as the case may be. Except for these reason, the State Government has no authority whatsoever to remove a President or a Vice President from his Office. Considering the terms of this sub-section it may well be said that a Vice-President can be removed from his office not only by the Municipality but also by the State Government although the latter would be able to remove him only in certain circumstances. Accordingly, in order to take cognizance of the complaint in the present case the learned Magistrate would not be in need of a sanction of the State Government since the accused is not removable from his Office of Vice-President 'save by or with the sanction of the State Government' but is also removable by the Municipality as and when it pleases.'

Mr. Sheriff, the learned Counsel for Respondent 2 (accused 1), contended that the language of section 23(7) of the Bombay Act is not in pari materia with that of section 23(9) of the Mysore Act and hence the decision of the Bombay High Court cannot have application to the facts of this case. Mr. Sheriff pointed out that while the first part of section 23(7) of the Bombay Act states that the President or Vice-President shall be removable from his Office by an appropriate resolution passed by the Municipal Council, the corresponding portion of S. 23(9) of the Mysore Act states that on passing an appropriate resolution, the president or the Vice president shall be deemed to have vacated his office. Mr. Sheriff contended that while in section 23(7) of the Bombay Act, the word 'removable' is used, in the corresponding section of the Mysore Act, the words used are 'deemed to have vacated his Office'

[10] Though there is some difference in the phraseology in section 23(7) of the Bombay Act and 23(9) of the Mysore Act, I think, there is no material difference between these two provisions. The word 'remove' is not defined in the Code of Criminal Procedure or in the Bombay Act. In the absence of such definition, the ordinary meaning of that word has to be taken in interpreting section 197 Criminal P.C. According to the Concise Oxford Dictionary, one of the meanings of the word 'remove' is 'to take off or away from the place occupied.' Taking away from the office of the President or the Vice President may happen by the act of removal by the Government or by the act of the President or Vice-President vacating his Office on an appropriate resolution being passed by the Municipal Council. Thus, the use of the word 'remove' in section 23(7) of the Bombay Act and the use of the words 'vacate his Office' in section (9) of the Mysore Act, do not make any difference for the purposes of section 197, Criminal P.C.

[11] I am in respectful agreement of the observations of Shah. J. in the aforesaid decision. As the President or Vice President of a Municipal Council is not a public servant who is not removable from his office save by or with the sanction of the State Government, but is also removable by a resolution of the Municipal Council expressing want of confidence, I do not think the sanction provided by section 197, Criminal P.C., is necessary for prosecution of the President or Vice-President of a Municipal Council, constituted under the Mysore Town Municipalities Act, 1951.

[12] No doubt the learned Counsel for the Complainant made a concession before the learned Sessions Judge that Accused 1 was a Public Servant to whom section 197 Criminal P.C. would apply. But the concession made by the Counsel on a pure question of law, will not estop him or his client from withdrawing from such concession at a later stage of the same proceedings or in an appeal or revision therefrom.

[13] In the result, this reference is accepted, though not for the reasons stated by the learned Sessions Judge; the Order passed by the learned Magistrate purporting to discharge Accused 1 in C.C. No. 3214 of 1962 is hereby set aside, the learned Magistrate is directed to take cognizance of the complaint against Accused 1 also and to proceed with it according to law.

[14] Reference accepted.


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