W. Broome, J.
1. This application by Lala Ram (Pradhan of the Gaon Samaj of village Sahpur Gosna, district Mathura) and Jai Prasad (Lekhpal and secretary of the said Gaon Samaj) is directed against the orders of a first class Magistrate of Mathura rejecting their preliminary objections to a complaint under Sections 466, 468 and 471 I.P.C. that has been filed against them by the opposite-party Bhikki.
2. The allegations put forward by Bhikki in his complaint are that the two accused prepared records evidencing a fictitious auction of the land of a certain pond and purporting to show that the complainant gave the highest bid at the auction This was done, it is suggested, in order to make out that the complainant was in possession of the aforesaid pond as an auction-purchaser for a limited period and not on a permanent basis as a tenant.
3. The preliminary objection put forward by the applicants, which is being pressed in the present application, is that before they could be prosecuted sanction was needed under Section 197 Cr.P.C., which lays down that the State Government's previous sanction is necessary for the prosecution of 'any public servant who is not removable from his office save by or with the sanction of the State Government' with regard to 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
4. Under Section 121 of the U.P. Zamindari Abolition and Land Reforms Act each Gaon Panchayat way required to establish a land management committee for the purpose of carrying out the duties relating to the settling and management of land under its control; and this land management committee has been assigned various functions by Rule 115 of the U.P. Zamindari Abolition and Land Reforms Rules, including the letting out of certain classes of land and the disposal of uncultivated areas. Rule 115-S of these Rules provides that no lease or licence in respect of any property of the Gaon Samaj shall be made in favour of a person except by public auction held in accordance with the prescribed procedure; and Clause (h) of this rule lays down that 'the proceedings of the auction shall be duly noted in a book kept for this purpose.' This record of auctions has to be maintained by the Lekhpal (as Secretary of the Land Management Committee) under the guidance and supervision of the Chairman as is clear from Section 23 of the Gaon Samaj Manual,, which runs ay follows:
The Lekhpal shall be secretary of the Land Management Committee and shall, under the guidance and supervision of the Chairman, be responsible for the proper maintenance of the accounts, forms and registers of the Committee. In all matters pertaining to the work of the Committee he shall act under the directions of the Chairman.
The prosecution in this case suggests that Jai Prasad as Lekhpal and Secretary of the Land Management Committee prepared a fictitious auction record with the connivance and the instigation of Lala Ram the Chairman of the said Committee; and it seems to me that if Jai Prasad prepared and Lala Ram caused to be prepared a fictitious record of this nature, as alleged, they were undoubtedly purporting to act in the discharge of their official duty while so doing. As pointed out in H.H.B. Gill v. The King .
The test may well be whether the public servant, if challenged, may reasonably claim that what he does, he does in virtue of his office.
Applying this test to the facts of the present, case, it is obvious that the two accused, on being challenged with the allegation that they have prepared a fictitious record of a bogus auction, may very well claim that they prepared the record in virtue of the offices which they hold as Chairman and Secretary of the Land Management Committee, as a part of their normal official functions; and therefore they must be treated as having done this while purporting to act in the discharge of their official duty, within the meaning to be assigned to those words in Section 197 Cr.P.C. A similar situation arose in Amrik Singh v. State of Pepsu : 1955CriLJ865 , where the accused, an officer in the P.W.D., was alleged to have prepared a fictitious acquittance roll and it was held that sanction for his prosecution was necessary under Section 197. Cr.P.C. because:
the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office.
5. This however is not the only point to be considered in connection with the question of the need for sanction under Section 197 Cr.P.C. It has still to be seen whether the two accused-applicants arc public servants who are not removable from office save by or with the sanction of the State Government.
6. I am satisfied that both the applicants (No. 1 as Chairman of the Land Management Committee and No. 2 as Secretary of that Committee) are public servants. Under Rule 303 of the Zamindari Abolition and Land Reforms Rules money collected by the Land Management Committee remains in the custody of the Chairman and he is thus an 'officer whose duty it is to take, receive, keep or expend any property...for any secular common purpose in any village.' And the Secretary (who is also Lekhpal) is clearly an 'officer whose duty it is...to make, authenticate or keep any document for the ascertaining of the rights of the people of any village.' Both of them are thus public servants as defined in the tenth clause of Section 21, I.P.C.
7. The crucial question however is whether they are 'not removable from office save by or with the sanction of the State Government,' so as to come within the category of public servants who can claim the immunity from unsanctioned prosecution afforded by Section 197 Cr.P.C. Under Section 127A of the zamindari Abolition and Land Reforms Act the Chairman of the Land Management Committee is removable by the State Government; but by Rule 115-KK (made in accordance with the powers conferred by Section 344(1)(g) of the Act), this power of removal has been delegated to the Assistant Collector in charge of the sub-division.
It is clear therefore that under the Rules at present in force applicant No. 1 can be removed from the past of Chairman of the Land Management Committee without any order being passed by the State Government and without any reference being made to that Government. Applicant No. 2 is also removable without any intervention on the part of the State Government from the post of Lekhpal he can be removed by the Assistant Collector in charge of the sub-division (vide para 15 of the Land Records Manual), while from the Secretaryship of the Gaon Panchayat he can be removed by the 'prescribed authority' (the District Panchayat Raj Officer) under Section 25A of the Panchyat Raj Act. There appears to be no specific provision in the zamindari Abolition, and Land Reforms Act or Rules for the removal of the Secretary of the Land Management Committee but I take it that this is to be treated not as a separate and distinct appointment but merely as an extra function assigned to the Lekhpal under Rule 115-I.
8. As regards applicant No. 1 an attempt has been made to argue that because the power to remove him has been delegated by the State Government to the S.D.O., his removal by the S.D.O., should be treated as equivalent to removal by the State Government, thereby attracting the provisions of Section 197 Cr.P.C. But this question has been settle by a Division Bench decision in Jalaluddin v. Emperor : AIR1926All271 in which it has been held that:
Once the Local Government has delegated its power, the authority which actually removes the public servant from office is not the authority of the Local Government but the authority to whom the power is delegated.
9. My conclusion therefore is that although both the accused-applicants are Government servants and the offence which they are alleged to have committed was committed by them while purporting to act in the discharge of their official duties they cannot claim the benefit of Section 197 Cr.P.C. because they do not belong to that category of public servants who are 'not removable from office save by or with the sanction of the State Government.
10. This application is accordingly rejected. The preliminary objection raised by the applicants having been found to be without force, their trial may now proceed without further ado.