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Ramazan Bi Vs. Bhimsen Rao - Court Judgment

LegalCrystal Citation
SubjectService;Criminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 311 of 1969
Judge
Reported inAIR1970Mys195; 1970CriLJ1113; (1970)1MysLJ218
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 197; Mysore Land Revenue Act, 1964 - Sections 16(1) and 233; Village Accountants Recruitment Rules - Rule 6; Code of Civil Procedure (CPC), 1908; Indian Penal Code (IPC), 1860 - Sections 16, 16(1), 166, 167 and 218; Mysore Service Regulations - Regulation 71; Constitution of India - Article 141
AppellantRamazan Bi
RespondentBhimsen Rao
Appellant AdvocateB.S. Raikote, Adv.
Respondent AdvocateMurlidhar Rao, Adv.
Excerpt:
.....towards leave encashment benefit is not acceptable. - the subsection clearly empowers the deputy commissioner to appoint a village accountant to a village or a group of villages. ' in the above-said decision, their lordships have clearly stated that the deputy commissioner is the competent authority to appoint a village accountant and if there are any general orders of the state government or the divisional commissioner governing the appointment of village accountants, the deputy commissioner should exercise the power of appointment of a village accountant so as to conform to such orders. their lordships have also pointed out that there is nothing in this section which warrants an inference that the government or the divisional commissioner should sanction the post of village..........16 of the mysore landrevenue act, 1964, (which will be hereinafter be referred to as the act), the deputy commissioner is the competent authority to appoint village accountants. he argues that there is no delegation of the power of appointment by the government to the deputy commissioner. the words 'subject to the general orders' used in section 16 (1) only mean, subject to the general orders of the government with regard to the number of appointments or vacancies, and has no reference to the competency of the deputy commissioner to appoint village accountants, even as per rule 6 of the mysore general services (revenue subordinate branch) village accountants (cadre and recruitment) rules, 1961, the appointing authority in respect of village accountants, shall be the deputy commissioner.....
Judgment:
ORDER

1. The petitioner before this Court was the complainant in C. C. 195/3 of 1969 on the file of the first Class Magistrate, Raichur. He filed a complaint under Sections 166 and 167, Indian Penal Code against the accused, who is a Patwari (Village Accountant). The accused raised a preliminary objection that the case could not be proceeded with as sanction of the Government under Section 197, Criminal Procedure Code had not been obtained. The learned Magistrate upheld the objection of the accused and dismissed the complaint. In this revision petition, the petitioner challenges the legality of the said order passed by the learned Magistrate.

2. Sri Raikote, learned counsel appearing on behalf of the petitioner, has contended that under Section 16 of the Mysore LandRevenue Act, 1964, (which will be hereinafter be referred to as the Act), the Deputy Commissioner is the competent authority to appoint Village Accountants. He argues that there is no delegation of the power of appointment by the Government to the Deputy Commissioner. The words 'subject to the general orders' used in Section 16 (1) only mean, subject to the general orders of the Government with regard to the number of appointments or vacancies, and has no reference to the competency of the Deputy Commissioner to appoint Village Accountants, Even as per Rule 6 of the Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, the appointing authority in respect of Village Accountants, shall be the Deputy Commissioner of the District. Sri Raikote, in support of his said contention, has strongly relied on a Bench decision of this Court, C.S.N. Murthy v. State of Mysore, (1968) 2 Mys LJ 366. It is further contended by him that even assuming that the power of such appointment is delegated by the Government to the Deputy Commissioner, once such powers are delegated no sanction of the Government is required as per Section 197, Criminal Procedure Code. In support of his said contention, he has relied on Shukla v. Navnit Lal, : 1967CriLJ1200 and Krishna Murthy v. Abdul Subhan, AIR 1965 Mys 128.

3. Sri Murlidhar Rao, learned Counsel appearing on behalf of the respondent-accused, has argued that Section 16 of the Act specifically states that the Deputy Commissioner, may subject to the general orders o the State Government and the Divisional Commissioner, appoint a Village Accountant, He contends that unless the Deputy Commissioner gets the general orders of the State Government, he cannot appoint a Village Accountant. He argues that in the instant case there is no delegation of power by the Government to the Deputy Commissioner. The decision of the Supreme Court in : [1967]3SCR855 has no application to this case as there is no delegation of such power. The exercise of the power under Section 16 of the Act is subject to the general orders of the Government, and as the Government is the final authority so far as the appointment of Village Accountant is concerned, sanction of Government is necessary before a Village Accountant could be prosecuted. Sri Murlidhar Rao has relied on an unreported decision of a Single Judge of this Court rendered in Cri. Revn. Petn. No. 115 of 1968 (Mys). The accused in that case was a Village Accountant in Dharwar District. A preliminary objection raised by him that he could not be prosecuted for offences under Sections 166, 167 and 218, Indian Penal Code without prior sanction of the Government was upheld by this Court.

4. Section 16 (1) of the Act, reads as follows;--

'16. Village Accountant -- (1) the Deputy Commissioner may, subject to the general orders of the State Government and the Divisional Commissioner, appoint a Village Accountant for a village or group of villages and he shall perform all the duties of a Village Accountant prescribed in of under this Act or in or under any other law for the time being in force, and shall hold office under and be governed by such rules as may be prescribed.'

In (1968) 2 Mys LJ 366, a Division Bench of this Court had occasion to interpret the wording of the said Section. At page 372, their Lordships observed as follows:--

'We are unable to accept the construction which Mr. Rama Jois seeks to place on Section 16 (1). The exercise of the power given to the Deputy Commissioner under Section 16 (1) to appoint a Village Accountant is not made conditional upon the rules having been framed prescribing the duties of the Village Accountant and conditions of his service. What this sub-section provides is that a Village Accountant appointed under Section 16 (1) shall perform such duties and be governed by such conditions of service as may be prescribed whether before or after he is appointed. Similarly, if rules are framed Tinder the Land Revenue Act regulating the appointment of the Village Accountants, thereafter the appointment of a Village Accountant by the Deputy Commissioner should be in accordance with those rules. But the power conferred on the Deputy Commissioner to appoint a Village Accountant is not kept in abeyance until such Rules are made, We think the Deputy Commissioner is competent to appoint a Village Accountant even before any rules are framed, or even in the absence of such Rules.'

Further then- Lordships observed as follows:--

'x x x x What this sub-section states is that if there are any general orders of the State Government or the Divisional Commissioner governing the appointment of Village Accountants the Deputy Commissioner should exercise his power to appoint Village Accountants so as to conform to such orders. If there are no orders of the Government or the Divisional Commissioner in this behalf, the power of the Deputy Commissioner is not rendered ineffective or kept in abeyance until such order is made. There is nothing in this sub-section which warrants an inference that the Government or the Divisional Commissioner should sanction the post of a Village Accountant for any village or a group of villages before the Deputy Commissioner can appoint a Village Accountant. The subsection clearly empowers the Deputy Commissioner to appoint a Village Accountant to a village or a group of villages. It may be, that administrative sanction of the Government is necessary before creating a new post which must necessarily involve financial con-sequence to the State in the form of salary, allowances payable to the holder of the post and other expenditure. But such administrative sanction is de hors the provisions of the Land Revenue Act and is purely an internal matter within the Government organisation.'

In the above-said decision, their Lordships have clearly stated that the Deputy Commissioner is the competent authority to appoint a Village Accountant and if there are any general orders of the State Government or the Divisional Commissioner governing the appointment of Village Accountants, the Deputy Commissioner should exercise the power of appointment of a Village Accountant so as to conform to such orders. Their Lordships have also pointed out that there is nothing in this Section which warrants an inference that the Government or the Divisional Commissioner should sanction the post of Village Accountant and the sub-section clearly empowers the Deputy Commissioner to appoint a Village Accountant. It may further be mentioned that their Lordships have pointed out in the said Judgment that the Village Accountants Recruitment Rules, of 1961, which were made in the exercise of the powers under the proviso to Article 809 of the Constitution and Section 233 of the Mysore Land Revenue Code, should, to the extent to which there is no inconsistency be deemed to have been made in exercise or the powers under Section 197 of the Land Revenue Act also. Under Rule 6 of the said Rules, the appointing authority in respect of a Village Accountant is the Deputy Commissioner of the District, There is therefore no force in the contention of Sri Murlidhar Rao that the appointing authority so far as the Village Accountants are concerned, is the Government and not the Deputy Commissioner.

5. I am also of opinion that there is force in the contention of Sri Raikote that even assuming for the sake of argument that the power of appointment is delegated to the Deputy Commissioner, no sanction of the Government under Section 197 Criminal Procedure Code is required. That this is the legal position has been laid down by the Supreme Court in : 1967CriLJ1200 . In paragraph 9 of the judgment, their Lordships have observed as follows:--

'It was suggested on behalf of the appellant that even if the Railway Board had power to remove the appellant from the office and even if it was acting under the powers delegated to it, the principle of the maxim qui facit per alium facit per se applies to the case and the appellant must be deemed to be removable only by or with the sanction of the Central Government within the meaning of Section 197 of the Criminal Procedure Code. We do not think there is any substance in this argument. If once the Central Government has delegatedits power to another authority with regard to appointment and removal of a public servant, then for the purpose of Section 197, Criminal Procedure Code the public servant concerned will not be treated to be a public servant 'not removable from his office except by or with the sanction of the Central Government' within the meaning of that section.'

6. Similar was the view expressed by Hegde, J., (as he then was) in AIR 1963 Mys 128, It has been laid down in the said case that the protection under Section 197, Criminal Procedure Code is not available to a public servant, whom lower authority, has, by law or order, been empowered to remove. His Lordship has held that where on the date of taking cognizance of the offences the accused, a treasurer, could have been removed from service by the Comptroller of State Accountants, who had power to appoint as well as dismiss a treasurer by virtue of Regulation 71 of the Mysore Service Regulations, the accused is not a public servant who is not removable from his office save by or with the sanction of the State Government within the meaning of Section 197, Criminal Procedure Code and as such no sanction to prosecute him is necessary.

7. In Cri. Revn. Petn. No. 115 of 1968 (Mys), his Lordship has held that the authority to appoint and remove a Village Accountant under Section 16 of the Act has been delegated to the Deputy Commissioner and the Deputy Commissioner can appoint a Village Accountant only under the general orders of the State Government and hence sanction of the State Government for prosecution is necessary. As pointed out already a Bench of this Court in 1968-2 Mys LJ 366 has held that the Deputy Commissioner is the competent authority to appoint a Village Accountant, and that Section 16 empowers the Deputy Commissioner to appoint a Village Accountant. The Supreme Court in : 1967CriLJ1200 has also clearly laid down that once the power is delegated by the Government, the sanction of the Government for prosecution is not necessary.

8. Sri Murlidhar Rao has submitted that in view of the decision of a Single Judge rendered in Cri. Revn. Petn. No. 115 of 1968 (Mys), this is a fit case where the matter should be referred to a Division Bench for decision. The Supreme Court, in : 1967CriLJ1200 has clearly laid down that in a case where the power of appointment and removal has been delegated by the Government to a subordinate authority, no sanction of the Government is necessary. It is need-lass to point out that under Article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all courts within the territory of India. Apart from that, as pointed out by me already, a Division Bench of this Court had laid down that the appointing authority in respect of a Vil-lage Accountant is the Deputy Commissioner. I am, therefore, of opinion that in the circumstances mentioned above, there is no need to refer the case to a Division Bench.

9. In the result, for the reasons mentioned above, I am of opinion that in the present case, it is not necessary to get the sanction of the State Government under Section 197, Cr. P. C. I, therefore, set aside the order of the Trial Court and direct the learned First Class Magistrate, Raichur, to take the complaint on file and proceed with the case according to law.

10. Order accordingly.


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