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Prem NaraIn Mohanlal Dubey Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1957CriLJ508
AppellantPrem NaraIn Mohanlal Dubey
RespondentState
Cases ReferredAfzalur Rahman v. Emperor
Excerpt:
- - before this section can be invoked, two conditions must be satisfied ;one, that the accused must be a person removable from his office only with the sanction of the state government or of the central government according to whether the person is employed in connection with the affairs of the state or the central government......rules made thereunder, be was not removable from his office by any authority subordinate to the state government and, therefore, sanction under section 197 of the criminal procedure code for his prosecution was necessary. it was contended on his behalf that in the absence of sanction, the prosecution could not proceed. the trial court rejected the contention, against which this revision has been filed.2. the question for determination is whether in the circumstances of the case, sanction under section 1.97 of the criminal procedure code is necessary?3. section 197(1) runs thus:when any person who is a judge within the meaning of section 19 of the indian penal code, or when any magistrate, or when any public servant who is not removable from his office save by or with the sanction of a.....
Judgment:
ORDER

A.H. Khan, J.

1. The Police filed a complaint against the petitioner, who is the Sarpunch of Gram Panchayat, Kalukheda, alleging that the Sarpanch was entrusted with a sum in the neighbourhood of Rs. 4,000/-, for improving the sources of water supply in villages. It is said that no work was done but all the same a report of the fictitious completion of the work was prepared and a receipt purporting to be in the name of a fictitious person was obtained, and thus the accounts were adjusted. On these facts, the accused was being tried under Sections 409, 467 and 218 of the Indian Penal Code. He raised the plea that being a Sarpanch, he was a public servant and under the Panchayat Vidhan and the rules made thereunder, be was not removable from his office by any authority subordinate to the State Government and, therefore, sanction under Section 197 of the Criminal Procedure Code for his prosecution was necessary. It was contended on his behalf that in the absence of sanction, the prosecution could not proceed. The trial Court rejected the contention, against which this revision has been filed.

2. The question for determination is whether in the circumstances of the case, sanction under Section 1.97 of the Criminal Procedure Code is necessary?

3. Section 197(1) runs thus:

When any person who is a judge within the meaning of Section 19 of the Indian penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a 'State Government' or 'the Central Government' is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the 'previous sanction'.

4. The object of this section is to guard against vexatious and frivolous proceedings against Judges, Magistrates arid Public Servants and it has been thought desirable that before launching proceedings against them, sanction of the superior authority is to be obtained. Before this section can be invoked, two conditions must be satisfied ;

One, that the accused must be a person removable from his office only with the sanction of the State Government or of the Central Government according to whether the person is employed in connection with the affairs of the State or the Central Government.

The second condition is that he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. If any of these two conditions is not fulfilled, then the case will not attract the protection which is afforded by Section 197.

5. Mr. Oza, learned Counsel for the applicant contends that the Sarpaneh is removable by an order of the State Government only, and therefore, it was necessary to obtain previous sanction for his prosecution under Section 197 of the Criminal Procedure Code and, in this connection, he has drawn my attention to Sub-section 4 of the amended Section 18 of the Madhya Bharat Panchayat Vidhan (Act No. 16 of 1955).

There is no doubt that Sub-section (4) empowers the Government to remove a Punch or a Sarpanch under certain circumstances. But in advancing this argument, Mr. Oza has conveniently overlooked Sub-sections (2) and (3) of the Section referred to above. Sub-sections (2) and (3) also empower 'the prescribed authority' (which is an authority subordinate to Government) to remove the Sarpanch from his office under certain circumstances.

Thus a perusal of the entire amended Section 18 shows that the Panch or Sarpanch is removable not only by the State Government but also by an authority subordinate to Government, namely, the prescribed authority. Now Section 197 of the Criminal Procedure Code applies to such public servants only, who are either removable by the State Government or by the Central Government.

In other words, where a person is removable both by the State Government and by an authority subordinate to Government, as in the instant case, Section 197 of the Criminal Procedure Code would not apply, and, consequently previous sanction would not be necessary.

I feel fortified in the view I have taken by the decision of the Federal Court, Afzalur Rahman v. Emperor AIR 1943 FC 18(A), where it is said that when the Police Officers can be dismissed by the Deputy Inspector General of Police, they are not removable only by or with the sanction of the Provincial Government within the meaning of Section 197, I have therefore not the least hesitation that the present case does not attract the application of Section 197 of tile Criminal Procedure Code and in consequence, no previous sanction is necessary for prosecuting the Sarpanch.

6. Mr. Oza, learned Counsel for the applicant in his endeavour to have a last fling asserts that as no prescribed authority was ever appointed by the Madhya Bharat Government it must be deemed that Government alone was competent to remove the Sarpauch. But this is a new point which has not been raised in the revision petition and the learned Government Advocate does not accept the contention.

Since the point is not raised in the revision petition, it is unnecessary to consider it. But on general grounds it may, however, be said that the principle laid down in the Federal Court case, is very clear and it is that if a person can be removed by an authority other than the Government also then he cannot seek the protection of Section 197 of the Criminal Procedure Code. On a challenge by the Government Advocate, Mr. Oza has conceded that now the Government has appointed the prescribed authority. It being so, the bottom is knocked out of the second contention sought to be raised.

7. For reasons stated above, I hold that no previous sanction is required for launching a prosecution against a Panch or a Sarpanch of a Gram Panchayat under Section 197 of the Criminal Procedure Code, and, the revision is, in consequence, rejected.


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