Skip to content


J.M. Pendse Advocate Vs. Chandra Gopal Pyaralal Mahajan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1972CriLJ1207
AppellantJ.M. Pendse Advocate
RespondentChandra Gopal Pyaralal Mahajan
Cases Referred and Vishnu v. Emperor.
Excerpt:
.....it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - we are not satisfied that in interpreting the word 'removal' in the case of an elected representative it must be construed loosely......: air1961guj57 his lordship is also of the same view as taken by rajasthan high court that the word removal should be understood in a restricted sense.10. the question that arose in : air1964bom191 is different from the one arising in the instant case. in those cases the question that was considered was only about the removal of the president. those cases did not consider the question when the president was also a councillor i agree with the view expressed in those cases that the word 'removal' should not be given a restricted meaning. under section 47 of the municipalities act. the president is removable by a motion of no-confidence. the word 'remove' has been used in sub-section (4) of this very section. therefore the argument that when the president or vice-president is to vacate.....
Judgment:
ORDER

S.B. Sen, J.

1. A very short question has arisen in this case but it is of some importance. Chandra Gopal was the President of the Municipality. Khategoan. A complaint was filed by Mr. Pendse Advocate of Kannod alleging that through his subordinate staff the opponent has forcibly removed some material from a plot of land belonging to him in his possession. A complaint under Sections 447. 427 and 379 was lodged by Mr. Pendse and Chandra Gopal was one of the accused persons.

2. On 11-1-1967. the learned Magistrate held that Chandra Gopal being the President of the Municipality would be deemed to be a councillor and was not removable from his office except by the State Government under Section 41 of the M. P. Municipalities Act. As there was no sanction by the State under Section 197 of the Code of Criminal Procedure. Chandra Gopal could not be prosecuted. The trial Court therefore discharged him. A revision was filed by the applicant against this order but was dismissed. The applicant has now come up in revision before the High Court.

3. It is a common ground that Chandra Gopal was a councillor and became President of the Municipality Khategoan. There is no dispute that he was a public servant at the relevant time. The only dispute is whether he was removable from the office by the State Government as contemplated under Section 197 of the Criminal Procedure Code. The trial Magistrate under the circumstances of the case held that sanction would be necessary.

4. It has been contended by the applicant's counsel that Section 197 will apply when the accused is not removable from his office save by or with the sanction of the State Government as contemplated in Section 197. That means that if there is any other mode of removal in addition. Section 197 would not apply.

5. He placed reliance on a decision reported in State v. Chikka Venkat-appa AIR 1965 Mys 253. In that case sanction was considered with respect to the prosecution of the President or Vice-President of the Municipal Council. Under the Mysore Town Municipalities Act No. 22 of 1951. they are removable not only by or with sanction of the Govern' ment but also by Municipal Council itself. In that connection it was observed that the use of the word 'remove' in Section 23(7) of the Bombay Municipal Act 3 of 1901 and use of the words 'vacate his office' in Section 23(9) of the Mysore Act do not make any difference for the purpose of Section 197 of the Criminal Procedure Code. It was further held by his Lordship that the word 'remove' should have the dictionary meaning. 'Remove' means lake away that is taking away from the office of the President or Vice-President and it may happen in various cases.

6. Similar is also the view express in Vishwamohan v. Mahadu : AIR1964Bom191 . In that case, it was held that under Section 23 (7) of the Bombay District Municipal Act. a vice-president can be removed from his office not only by the Municipality but also by the State Government although the latter would be able to remove him only in certain circumstances. It has been held that in a complaint case the Magistrate should not be in need of a sanction of the State Government since the accused is not removable from his office of vice-president save by or with the sanction of the State Government but is also removable by the Municipality as and when it pleases.

7. Now, the above two cases undoubtedly hold that when there are other ways of removal of the President, Section 197 is not attracted. There is, however a contrary view taken in Pukhraj v. Ummaidram. . which is a Division Bench case. In that case the question was about the removal of a Sarpanch. The argument made before their Lordships was that a Sarpanch was liable to be removed in a number of ways and it is only under Section 17(4) or Section 73. that the State Government can take action for removal and in other case, the removal is caused by force of law on action taken by the authorities subordinate to the State Government. Their Lordships defined the term 'removal' under Section 197 and observed:

What is meant by removal under Section 197. Cri P.C. Section 197 grants the protection to the public servants but such a public servant must be one removable from his office only by or with the sanction of the State Government or the Central Government. The very word 'removable' signifies that the termination of the employment of the public servant must not come to an end automatically by force of law nor must it come to an end because he has resigned. It must come to an end on some superior authority forcing him to vacate the office. Usually in the case of a Government servant this is done on account of misconduct and certain safeguards are provided under Article 311 of the Constitution by placing restrictions on the removal of a Government servant. It is in this technical sense that the word should be construed in Section 197 Cri. P.C. and not in any other sense. It is to be construed in the sense in which it is used in the Civil Services (Classification. Control and Appeal) Rules. There is ample authority for the proposition that under Article 311 it is to be so construed See Satish Chandra v. Union of India. : [1953]4SCR655 Khem Chand v. Union of India. AIR 1938 SC 300, Parshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC . There is no reason to construe the word 'removal' in a different manner in Section 197, Cri. P.C. when it is to be applied to the Government servant. It is urged however that when it is to be applied to a person holding a public office as an elected representative such a narrow construction on the word 'removal' should not be given. We are not satisfied that in interpreting the word 'removal' in the case of an elected representative it must be construed loosely. The word 'removal' must have the meaning of causing vacation of office as a result of misconduct or misbehaviour or any other similar cause. This discussion takes us to the conclusion that Ummaidram could be removed only by the State Government and the complaint against him could not be taken cognizance of as there was no previous sanction of the State Government.

8. In the Rajasthan case the facts were that one Pukhraj filed a complaint against Umaidram. Sarpanch of Billala and 6 others alleging that they had demolished the Chabutri and latrine belonging to the complainant and thus committed offences under Sections 451, 427 and 147 of the Indian Penal Code. The Magistrate discharged the accused. In revision, the Additional Sessions Judge held that as Umaidram was a Sarpanch he could not be removed save by or with the consent of the State Government and he was entitled to protection under Section 197 of the Code of Criminal Procedure.

9. In Chimanbhai v. Jashbhai : AIR1961Guj57 his Lordship is also of the same view as taken by Rajasthan High Court that the word removal should be understood in a restricted sense.

10. The question that arose in : AIR1964Bom191 is different from the one arising in the instant case. In those cases the question that was considered was only about the removal of the President. Those cases did not consider the question when the President was also a councillor I agree with the view expressed in those cases that the word 'removal' should not be given a restricted meaning. Under Section 47 of the Municipalities Act. the president is removable by a motion of no-confidence. The word 'remove' has been used in Sub-section (4) of this very Section. Therefore the argument that when the President or Vice-President is to vacate his office on account of no-confidence motion we cannot take it as 'removal' cannot stand. Section 47 (4) of the M. P. Municipalities Act is quoted below:

The fact of the removal of the President or the Vice-President under Sub-section (1) and the appointment of his successor shall be notified in the Gazette by the State Government.

Section 47 of the Act therefore, supplies a mode of removal. I agree with the view expressed in the above two cases Mysore and Bombay that restricted meaning of the removal should not be given. If that was so. then Section 197 would have mentioned that removal should have a particular meaning. On the other hand the very words 'save or by the State Government' would indicate that it will apply only in cases when the removal can be made by the State Government and not in any other manner.

11. The restricted meaning has also been given to the word 'removal' in : AIR1961Guj57 ; Ramdutt v. State. AIR 1966 Raj 125 and Vishnu v. Emperor. AIR 1941 Bom 85 I respectfully disagree with the view expressed in the latter cases regarding the scope and meaning of the word 'remove'. But those cases also say that the President or Vice-President cannot be prosecuted unless there is a sanction because they are also Councillors. With this latter view, I fully agree with respect.

12. It was argued that under Section 38 a councillor ceases to be a councillor under certain circumstances. Section 38 is quoted below:

38: Effect of subsequent disabilities:

(1) If any Councillor:

(a) becomes subject to any of the disqualifications specified in Section 35 and such disqualification is not removable or being removable is not removed; or

(b) absents himself during three consecutive months from the meetings of the council except with the leave of the Council; or

(c) becomes incapable of acting or

(d) acts as a Councillor in any matter (i) in which he directly or indirectly by himself or his partner any share or interest as is described in Clause (1) of Section 35; or

(ii) in which he is professionally interested on behalf of a client principal or other person; or

(e) fails to pay arrears of any kind due by him to the council on a demand made therefor under Section 53 within the period specified therein he shall be subject to the provisions of Sub-section (2) cease to be a Councillor and his seat shall become vacant with effect from a date to be notified by the State Government.' It was argued that this was also a mode of removal. If we read carefully this section there is no question of removal. I am not using 'removal' in a narrow sense as suggested in . -But even taking the broadest sense of removal. Section 38 cannot be made applicable. The word 'removal' means action of some outside agency. If anybody remains absent or incurs any other disability he ceases to be a councillor. The action is automatic. What the Government does in that case in issuing notification is to inform the people about it. Therefore there is no mode of removal in the Act other than the removal contemplated under Section 41 by the State Government.

13. It is thus seen that if the accused is a President or a Vice-Presi-dent. he can be removed by the State Government and otherwise also but if he is a Councillor he can be removed only by the State Government. Sanction, therefore would be necessary for his being a Councillor. There has been no dispute that the councillor is public servant as defined under the Municipalities Act. Section 352 of the Act says that every councillor is a public servant within the meaning of Section 21 of the Indian Penal Code. I, therefore, respectfully agree with the view expressed in and hold that the councillor is a public servant and can be removed only by the State Government. The President being a councillor can be removed from his presidentship otherwise but not from his concillorship except by the State Government. Any complaint therefore against him in the discharge of his duties as a public servant (about which there has been no dispute) would require sanction under Section 197 of the Code of Criminal Procedure, It is true that we may conceive of a person becoming President without being a councillor but that is not the position here If the accused was merely a President sanction might not have been necessary but the present case, cannot go on against the accused. Under these circumstances the sanction would be necessary under Section 197 of the Code of Criminal Procedure.

14. The result is the revision petition is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //