1. The facts leading to this reference as stated by the learned Sessions Judge, Sorath Division are briefly as under. The complainant opponent 2 is the Chairman and a member of the Veraval Municipality and the applicants are its members. The opponent filed a complaint against the applicants in the .Court of the First Class Magistrate Veraval in which he alleges that on 26.2.1951 they sent an application concerning him to the ad hoc committee of the Veraval Nagrik Sangh on whose ticket they had been elected to the Municipality. They are also alleged to have sent an advance copy of the resolution expressing want of confidence in him to the Nagrik Sangh and to the Collector, Sorath Division and on 16.3.51 they moved the resolution and an amendment in a meeting of the Municipality. It is further stated that the above-mentioned letters and the resolution and the amendment thereto contained defamatory statements concerning the opponent and the applicants had therefore committed offences under Section 500, I.P.C.
2. A preliminary objection was raised on behalf of the applicants that the learned Magistrate could not take cognizance of the complaint for want of sanction from the State Government under Section 197, Cr.P.C. The applicants allege that as the Municipal Councillors or members of the Veraval Municipality they are public servants not removable from office except by the State Government and the acts in respect of which they were being prosecuted viz. the communications which they had sent to the Nagrik Sangh and to the Collector and the resolution which they had moved were committed by them while acting in the discharge of their official duties. A sanction by the Government was therefore a condition precedent to the Court taking cognizance of the complaint. The learned Magistrate overruled this objection and ordered the case to be proceeded with.
The applicants preferred a revision to the learned Sessions Judge who held that the applicants were public servants under Section 45, Bombay District Municipal Act. He further held that it was not clearly shown that their acts in sending communications to the Nagrik Sangh or the Collector or in sending a forward copy of the resolution to them could be said to have been committed by them in the discharge of their official duties and dismissed the applicants' revision so far as it related to the complaint in respect of these communications. But in respect of the resolution and the amendment which the applicants had moved at the meeting of the Municipality, the learned Sessions Judge was of the opinion that in moving, the resolution and its amendment they were acting in the discharge of their official duty and consequently the sanction of the local Government was necessary before they could be prosecuted. He has therefore recommended that the order of the learned Magistrate in so far as it directs the case against the applicants to proceed for moving the resolution and Its amendment should be set aside and he has made the reference accordingly.
3. After hearing the learned Advocate-General and the Advocate for opponent 2 (complainant) who appeared at the hearing of the reference, we are of opinion that the reference must be accepted. The applicants are Municipal Councillors and are therefore public servants under Section 45, Bombay District Municipal Act. The learned Advocate for opponent 2 did not dispute this but he contended that sanction to prosecute the applicants even in respect of the resolution moved by them was not necessary under Section 197, Cr.P.C., because it was not correct to hold that the applicant was not removable from office except by the State Government and that in moving the resolution they did not act in the discharge of their official duty.
4. In support of his contention that sanction by the State Government was not necessary for removal of the applicants from their office the learned Advocate referred to Section 15(2)(e) of the Act under which if a Municipal Councillor absents himself from the meetings of the Municipality during four months except with the leave of the Municipality he becomes disabled from continuing to be a Councillor. Now Section 15(2) refers to disabilities of a Councillor from continuing in office. But his removal is provided for by Section 16 of the Act under which the State Government can remove a Municipal Councillor from office on the recommendation of the Municipality if such Councillor has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of discharging his duties as a Councillor.
Section 179 further provides that in case of supersession of the Municipality by the Government all councillors shall vacate their office. Section 17 provides that unless a Municipal officer is disabled from continuing to be a councillor or removed from office under Section 16 or Section 179, he shall hold office for a term of three years extensible by the order of the Collector to a term not exceeding it the aggregate to four years. The provisions of Section 17 clearly distinguish between the disability to continue as a Councillor and his 'removal' from office which can be made only by the State Government either by removing him from office or under Section 16 or by superseding the Municipality. A Municipal Councillor is therefore a public servant not removable from office except by the State Government.
5. The opponents' learned Advocate next contended that in moving the resolution the applicants could not be said to have acted in the discharge of their duties as they had not complied with the provisions of Section 23(7), Bombay District Municipal Act. Non-compliance of the formalities prescribed for moving a resolution may render the resolution ineffective and the complainant may not be liable to be removed from his office of the Chairman of the Municipality but the moving of the resolution is an act which the applicants can undertake only in their capacity as Municipal Councillors that is in the discharge of their duties as Municipal Councillors arid consequently we cannot accept the learned Advocate's contention that the applicants did not act in the discharge of their duty merely because the resolution which they moved did not comply with the provisions of the Municipal Act. The complainant's complaint so far as it relates to the resolution and the amendment moved by the applicants in the meeting of the Municipality satisfies all the conditions of Section 197, Cr.P.C. and must be dismissed as the sanction of the State Government has not been obtained for their prosecution.
6. The reference is accepted and the complaint so far as it relates to the moving of the resolution and its amendment by the applicants in the meeting of the Veraval Municipality is ordered to be dismissed on the ground of want of sanction under Section 197, Criminal P.C.
7. I agree.