G.K. Misra, J.
1. Anupama, petitioner No. 2 is the daughter of Bisweswar, petitioner No. 1. She was married to Premananda Panigrahi, son of Swetakmnar Panigrahi (opposite party No. 1) on 23rd November, 1962. On 6-5-1964, 16-5-64 and 11.6-64, opposite party No. I filed three applications before Dhruba Charon Das (opposite party No. 2) who is the Sarpanch of Kaintragarh Gram Panchayat alleging uneasily and immorality against Anupama and asking for an enquiry as to whether she was at her father's place or had gone away to other places on certain dates. The-ultimate relied sought was to give a certified copy of the report of enquiry to opposite party No. 1. Opposite patty No. 2 entertained the applications and directed enquiries into the allegations. Petitioner No. 1 protested against such enquiry as affecting the reputation of his daughter and himself and requested that if at all an enquiry was to be made it should be done in camera at the residence of the Sarpanch and not in public so that the prestige of the family might not be at stake. Opposite party No. 2 got evidence recorded through other members of the Gram Panchayat and the petitioners who were members of a conservative Brahmin society were scandalized. Petitioner No. 1 filed a complaint before the Sub-divisional Magistrate, Athmallik against opposite party Nos. 1 and 2 underSub-section 500 and 500/109, I. P.C. The learned Subdivisional Magistrate held .
From the evidence of P. Ws. 1 to 5 I am satisfied that P. W. 1 and his daughter, Anupama have been defamed by accused Swetakumar unnecessarily. Accused Swetakumar has no authority to question the chastity of his daughter-in-law so publicly as made above. On account of accused Sweta Kumar's initiative the allegations contained in his petitions have been given publicity and that there is no doubt about it.
The finding of the learned Magistrate so far as the Sarpanch is concerned is as follows:
I find reason to believe that he has not the petitions enquired into without bad intention. On the other hand accused Dhruba Charan Das acted in good faith in discharge of his duties as a Sarpanch for the well-being of P. W. 1 (petitioner No. 1) and accused Swetakumar. In such circumstances, he cannot be deemed to have abetted the offence of defamation. Further sanction of the State Government as contemplated under Section 197, Criminal P.C. has not been obtained by P. W. 1 (petitioner No. 1) to criminally prosecute him in the capacity of a Sarpanch as he is a public servant under the Orissa Gram Panchayats Act, 1948 ...
Hence the complaint petition is not maintainable again it accused Sarpanch, Dhiuba Charan Das. Therefore, accused Dhruba Charan Das is entitled to discharge.
On the aforesaid finding, the Sarpanch was discharged under Section 253 (1), Criminal P.C. This criminal revision has been filed against the order dated 2-9-1964 discharging the Sarpanch.
2. Mr. Mohanty advanced two contentions : (i) That sanction was not necessary under Section 197
Criminal P.C. for prosecution of the Sarpanch and (ii) That the finding of the S. D. M. that the Sarpanch acted in good faith in discharge of his duties for the well-being of P.W.I and accused Swetakumar is not correct. These contentions require careful examination. Section 197, Criminal P. C, lays down that when any public servant who is not removable from his office save by or with the sanction of a State 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 can take cognizance of such offence except with the previous sanction of the State Government in case of a person employed in connection with the affairs of a State.
Section 38 of the Orissa Gram Panchayats Act recognizes a Sarpanch who is the member of a Gram Panchayat as a public servant. It is unnecessary in this case to examine the contention of Mr. Mohanty that a Sarpanch is removable without the sanction of the State Government, The judgment in this case would proceed on the assumption that the Sarpanch is removable only with the sanction of the State Government.
The moot question to be answered is whether the offence alleged against the Sarpanch was committed by him while acting or purporting to act in the discharge of his official duty.
3. Mr. Ghosh placed reliance on S. 22 (o) and (v) of the Orissa Gram Panchayats Act, 1948 (hereinafter referred to as the Act) in support of a contention that the Sarpanch purported to act in the discharge of his official duty. Section 22 (o) and (v) may be quoted:
22. Subject to such exceptions as the State Government may make by general or special order, a Gram Panchayat may, if a majority of its members so decide, with the previous approval of Government, and shall if the State Government so direct undertake within its area the control and administration of and be responsible for the following matters:
(o) promotion of social and moral welfare including removal of unsociability, eradication of corruption and measures to discourage litigation and encourage arbitration;
(v) any other measure of public utility calculated to promote the moral and material well-being or convenience of the villagers.
It is conceded by Mr. Ghosh that the conditions precedent for the Gram Panchayat to act under Sub-section (o) and (v) of Section 22 by procurement of the previous approval of the Government or the direction of the State Government have not been fulfilled. Mr. Ghosh therefore, frankly conceded that he cannot show any provisions of the Act whereunder the Sarpanch, who exercises the executive power of the Gram Panchayat under Section 8, acted or purported in discharge of his official duty to act in making an enquiry against petitioner No. 2 affecting her morals and chastity.
4. The leading authority as to the meaning of the expression 'while acting or purporting to act in discharge of his official duty' is to be found in A I R 1948 P C 128. The observations of their Lordships are:
Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe though the judgment which he delivers may be such an act, nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.
This decision has been followed by the Supreme-Court in a series of decisions : 1955CriLJ865 . The question, however, is substantially one of fact to be determined with reference to the act complained of and the attendant circumstances. Each case must be decided on its own fact. In A I R 1956 Orissa 86, Panigrahi C. J. fully analyzed the principle on examination of the Privy Council and Supreme Court decisions. I am in respectful agreement with his-view.
5. Judged by the aforesaid test the action of the Sarpanch in entertaining the defamatory applications and directing enquiries thereof by procurement of evidence cannot be said to have been done by him while purporting to act in the discharge of his official duty. Sanction under Section 197, Cr. P. C, is not necessary even assuming that he is a public servant removable with the sanction of the State Government. The learned Magistrate misconceived the legal position, took an easy course of not going to the relevant law and acted contrary to law in holding that sanction was necessary.
6. It was then contended that the Sarpanch is protected by Section 111 (2) of the Act. The sub-section lays down that no suit or prosecution shall be entertained in any court against a Grama Panchayat or any member or officer thereof or any person acting, under its or his direction in respect of anything in good faith done or intended to be done under this Act or any rule or bye-law made there under. The expression, 'done or intended to be done' would carry the same connotation, as the expression ''acting or purporting to act' under Section 197, Cr. P.C. Reasons were elaborately given in A I R 1948 P C 128 where Section 270 of the Government of India Act, 1935 was being construed. For identical reasons, Section 111(2) of the Act cannot protect the Sarpanch. He also does not appear to have acted in good faith. The definition of 'good faith' as given in Section 3, subs. (22) of the General Clauses Act, 1897 will apply. A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not. The Sarpanch not having got any power to take up judicial function under the Gram Panchayats Act cannot be said to have done the enquiry honestly. The standard prescribed in the definition of 'good faith' in the General Clauses Act does not even assist him.
7. The learned Magistrate discharged the Sarpanch taking the view that he acted in good faith and therefore Section 500, I. P. C, had no application to him. His judgment does not refer to any particular Exception under Section 499. Mr. Ghosh placed reliance on the Ninth Exception which runs as follows:
It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other person or of the public good.
It is difficult to appreciate as to how the Ninth Exception assists the Sarpanch. 'Good faith' under the Indian Penal Code prescribes a more rigid standard. Nothing is said to be done or believed in good faith which is done or believed without due care and attention (S, 52, I. P. C). Mr. Ghosh never made any attempt to show as to how the case of the Sarpanch would come within the purview of the Ninth Exception. The Judgment of the learned Magistrate on this score cannot also be supported.
8. In the result, the order of the learned Magistrate discharging the Sarpanch Dhruba Charan Das under Section 253 (1), Cr. P. C, is quashed and the Magistrate is directed to proceed in accordance with law. The criminal revision is allowed.