H.N. Kapoor, J.
1. This petition has been filed under Section 482, Cr. P. C. (New) for quashing the proceedings pending before the III Addl. Sessions Judge in Sessions Trial No. 98 of 1973 against the applicants and the charges framed under Sections 468/34 and 471/34, I.P.C. and the amended charges under Sections 420 and 120-B, I.P.C.
2. Prem Narain is a member of the Municipal Board, Soron and Mayaram is the Overseer of that Board. A complaint was filed against them by one Wazir Ali, brother of Kifayat Ali, who was another member of the Municipal Board. It was under Section 409, I.P.C. to the effect that certain construction work was to be carried out within the limits of the Municipal Board, Soron for which sanction of the Chairman had been obtained. That work was to be carried on under the supervision of Maya Ram the petitioner and Prem Narain as member of the Municipal Board was required to certify that the work had been completed. It was alleged that the work had not been carried on at all but a wrong certificate had been given by Prem Narain that the work had been completed and a false muster-roll had been prepared by Maya-ram. The Magistrate took cognizance on the basis of that complaint and framed charges under Sections 468/34 and 471/34, I.P.C. and committed the case to the court of Session for trial. The trial was almost completed and was ready for judgment. The Sessions Judge then realised that the charges had to be amended and so the amended charges were framed under Sections 420 and 120-B, I.P.C. Further evidence was ordered to be recorded. It was at this stage that the present petition was filed and stay order was obtained.
3. Prem Narain has been suspended by the Government because a criminal case was pending against him. Mayaram too has been suspended. Learned Counsel for the applicants has argued that the applicants have been put to a great harassment because of groupism in the Municipal Board and they are likely to suffer more by a prolonged trial. It was argued that the Magistrate wrongly took cognizance in the absence of sanction of the Government under Section 197, Cr. P. C. (old) and as such the entire proceedings were vitiated. No counter-affidavit was filed in this case although time for filing the counter-affidavit was taken.
4. There is no dispute about Mayaram being a public servant. Section 84 of the U. P. Municipalities Act provides that every officer or servant of a Board shall be deemed to be public servant within the meaning of the Indian Penal Code. There was a controversy on the point whether Prem Narain in the capacity of Municipal Board Commissioner was also a public servant or not. Illustration to Section 21(12th) of the I.P.C. clearly indicates that a Municipal Commissioner is a public servant, The Rajas-than High Court in the case of State v. Bansilal Luhadia held that the word 'Commissioner' in this Illustration has been used in the sense of Municipal member or councillor and not in the sense of an officer in the employment of a Municipality who is sometimes designated by that name. A learned single Judge of this Court also held in the case of Bhairon Pd. v. Emperor : AIR1928All756 that a member of the Municipal Board was covered by the definition of public servant and sanction of the local Government under Section 197, Cr. P. C. was necessary for prosecuting him. Their Lordships of the Supreme Court also held in the case of Maharudrappa Danappa Kesarappanavar v. State of Mysore : 1961CriLJ857 that, the Chairman of a managing committee of the Municipal Board is a public servant within Clause (10) of Section 21, I.P.C.
5. Section 40 of the U. P. Municipalities Act provides that a member of the Municipal Board can be removed by the State Government only. In my opinion, there is no doubt that a member of the Municipal Board when he is entrusted with certain duties and he acts in discharge of those duties, he does act as a public servant. It is not disputed that he is being prosecuted for acts done by him in the discharge of his duties as & member of the Municipal Board. Sanction of the State Government was, therefore, necessary for his prosecution. Similarly, sanction of the State Government was necessary for prosecution of Mayaram applicant No. 2. His service too is now centralised; the appointing and removing authority being the State Government. The entire proceedings were, therefore, vitiated in the absence of sanction. It was held by the Supreme Court in the case of R P. Kapoor v. State : 1960CriLJ1239 that the entire proceedings are liable to be quashed under Section 561-A, Cr. P. C. if there was lack of legal sanction.
6. The application is accordingly allowed. The entire proceedings in Sessions Trial No. 98 of 1973 pending in the court of the III Addl. Sessions Judge and the charges framed under Sections 468/34 and 471/34, I.P.C. and the amended charges under Sections 420 and 120-B of the I.P.C. are quashed. It shall, however, be made clear that a fresh trial of the applicants on the basis of a valid sanction will not be barred.