1. These are two connected references by the learned Additional Sessions Judge of Aligarh at Etah which give rise to the same question of law for decision and can therefore be conveniently disposed of together. The facts out of which the question of law arises may briefly be stated as follows : One Babu Sohan Lal in whose behalf the reference has been made is a member of the Municipal Board of Jalesar. The Chairman of that Board is one Mr. Mubarak Ali Khan. It appears that in his capacity as a Municipal Commissioner Babu Sohan Lal was entrusted with certain public moneys. The Chairman has made two separate complaints against him for having dishonestly misappropriated those moneys and he is charged under Section 409, I.P.C., because he is a public servant as defined by Section 21, I.P.C. The Magistrate before whom the complaints were made took cognizance of the two offences and issued summonses to Babu Sohan Lal. In both cases an objection was taken on behalf of Babu Sohan Lal that in view of Section 197, Criminal P.C., the Magistrate was not authorized to take cognizance of the offences. It was contended in each case that Babu Sohan Lal was a public servant who was not removable from his office save by or with the sanction of the Local Government and as he was accused of an offence alleged to have been committed by him while acting in the discharge of his official duty, no Court could take cognizance of such an offence except with the previous sanction of the Local Government. It is admitted that no sanction of the Local Government has been obtained in this case. When the Magistrate took cognizance of the case, Babu Sohan Lal made an application in revision to the learned Additional Sessions Judge who has made these references. The learned Judge has accepted the contention on behalf of Babu Sohan Lal and has consequently recommended that the Magistrate's order summoning Babu Sohan Lal in each case should be quashed.
2. Upon a careful consideration of the facts, I find that I am unable to agree with the view taken by the learned Additional Sessions Judge. The decision obviously turns upon the interpretetion of the words 'not removable from his office save by or with the sanction of a Local Government' contained in Section 197, Criminal P.C. The simple point is whether this description rightly applies to Babu Sohan Lal so that he can claim the protection afforded by Section 197, Criminal P.C. In order to decide this point, reference must be made to Section 40, U.P. Municipalities Act which provides for the removal of a Municipal Commissioner. That Section draws a clear distinction between City Municipalities and non City Municipalities. In the case of City Municipalities the Local Government alone has power of removing a Municipal Commissioner. In other oases even the Commissioner can remove a Municipal Commissioner under Section 40 for any one of the reasons mentioned therein. Now the Municipality of Jalesar of which Babu Sohan Lal is a Commissioner is admittedly a non-City Municipality so that the Commissioner has the power of removal in respect of the Commissioners of that Municipality under Section 40, U.P. Municipalities Act. It necessarily follows that member of the Jalesar Municipal Board who is removable by the Commissioner under Section 40, U.P. Municipalities Act cannot be described as a person not removable from his office save by or with the sanction of a Local Government or some higher authority. The learned Additional Sessions Judge has given a rather curious reason for arriving at the finding that Babu Sohan Lal is a person not removable from his office save by or with the sanction of a Local Government or some higher authority. The reason is that the offence of criminal breach of trust with which he is charged is not an offence for which the Commissioner can remove any member of the Jalesar Municipal Board. This argument is obviously unsound. At this stage when the Magistrate has to decide whether he can take cognizance of the offence or not, the question whether the offence with which Babu Sohan Lal is charged is one for which the Commissioner would or would not eventually have the power to remove him does not arise at all. It is only when Babu Sohan Lal is convicted of the offence with which he is charged that the question of his removal can possibly arise. At this stage all that the Court is concerned with is the interpretation of the words 'not removable from his office save by or with the sanction of a Local Government or some higher authority.' For the reasons which I have already given it is perfectly clear that Babu Sohan Lal does not fulfil that description and he cannot therefore claim any protection under Section 197, Criminal P.C. The result therefore is that I reject the reference made by the learned Additional Sessions Judge.