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Chimanbhai Kashibhai Patel Vs. Jashbhai Motibhai Desai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Ref. No. 24 of 1960
Judge
Reported inAIR1961Guj57; 1961CriLJ499; (1960)GLR249
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 197 and 197(1); Bombay Municipal Boroughs Act, 1955 - Sections 18(1), 21(1), 27, 31 and 56(1); Indian Penal Code (IPC) - Sections 21 and 409
AppellantChimanbhai Kashibhai Patel
RespondentJashbhai Motibhai Desai and anr.
Appellant Advocate H.P. Shukla,; P.B. Desai and; N.C. Trivedi, Advs.
Respondent Advocate D.K. Shah, Adv. and; H.K. Thakore, Asst. Govt. Pleader for State
DispositionReference accepted
Cases ReferredSatwant Singh v. State of Punjab
Excerpt:
criminal - sanction to prosecute - section 197 of criminal procedure code, 1973 - act done by public servant in official capacity - act done was dishonest or fraudulent or contrary to law - prior sanction to prosecute from appropriate authority mandatory. - - the accused in his capacity as the president of the municipality engaged lawyers on behalf of the nadiad borough municipality as also for himself as president of the municipality, and by his orders he directed the chief officer of the municipality to pay the fees of the lawyers as well as the travelling expenses incurred by him as well as the secretary of the municipality in connection with these le-gal proceedings. 461/59 and 649/59 in the bombay high court, filed against the accused as president of the municipality, as well as.....orderr.b. mehta, j.1. this is a reference by the learned sessions judge, nadiad, for quashing the proceedings started against the petitioner chirnanlal kasbi-bhai patel, against whom a charge has been levelled by opponent no. 1, under section 409 of the indian penal code in regard to certain acts, which he did while be was continuing as president of the nadiad municipality till a new president was duly elected. the facts leading to this reference are this way:2. the petitioner-accused was a councillor of the nadiad municipality prior to 9th march, 1958. on 9th marck 1958, he was elected as president of the nadiad municipality for a period of one year. after the expiry of the said period of one year, on 23rd march 1959, the accused was elected as president for a second term of one year. it.....
Judgment:
ORDER

R.B. Mehta, J.

1. This is a reference by the learned Sessions Judge, Nadiad, for quashing the proceedings started against the petitioner Chirnanlal Kasbi-bhai Patel, against whom a charge has been levelled by opponent No. 1, under Section 409 of the Indian Penal Code in regard to certain acts, which he did while be was continuing as President of the Nadiad Municipality till a new President was duly elected. The facts leading to this reference are this way:

2. The petitioner-accused was a councillor of the Nadiad Municipality prior to 9th March, 1958. On 9th Marck 1958, he was elected as President of the Nadiad Municipality for a period of one year. After the expiry of the said period of one year, on 23rd March 1959, the accused was elected as President for a second term of one year. It appears that a Writ Petition No. 542/59 was filed immediately thereafter in the then High Court of Bombay challenging the election of the accused as President of the Municipality. An order was passed in this Writ Petition on 14th April 1959, setting aside the election of the accused as President of the Municipality. Under the rules of the Municipality, however, the accused continued as a President till the election of a new President. The accused filed an application for leave to appeal to the Supreme Court but that application was rejected by the High Court. It may be mentioned that in the original Writ Petition No. 542/59, the accused was made a party as President of the Navsari-Nadiad Municipality and the Municipality was joined as a second party. In that application for leave to appeal, the Nadiad Municipality was a co-applicant with the accused. The accused then filed an application for special leave to appeal to the Supreme Court. In this special leave application the Nadiad Muicipality was joined as a co-applicant. The accused in his capacity as the President of the Municipality engaged lawyers on behalf of the Nadiad Borough Municipality as also for himself as President of the Municipality, and by his orders he directed the Chief Officer of the Municipality to pay the fees of the lawyers as well as the travelling expenses incurred by him as well as the Secretary of the Municipality in connection with these le-gal proceedings. It appears that in addition to the directing of the payment of, these charges by the Chief Officer of the Municipality, the accused had also directed the payment of legal charges and travelling expenses in connection with other proceedings. These other proceedings were also two Writ Petitions by one Vinubhai Gordhanbhai Patel, bearing Nos. 461/59 and 649/59 in the Bombay High Court, filed against the accused as President of the Municipality, as well as against the Municipality itself, in connection with the cancellation by the Municipality on two occasions of the factory licence of said Vinubhai Gordhanbhai Patel. In connection with these two latter Writ Petitions also, the accused had engaged lawyers for himself as well as on behalf of the Municipality and he had directed the Chief Officer to pay the legal charges of the lawyers and the travelling expenses incurred by himself as well as by the Secretary of the Municipality. In addition to the above proceedings, there was another Writ Petition bearing No. 541/59, which was filed by three councillors of this Municipality against the Collector and the Municipality in connection with a notice of disqualification given by the Collector to them. Lawyers were engaged in this Writ Petition also on behalf of the Municipality and the accused s President of the Municipality had directed the Chief Officer for the payment of the legal charges and the travelling expenses of himself ana] the Secretary of the Municipality in connection with this Writ Petition also. All those charges ordered by him to be paid were without the sanction of the General Board of the Municipality.

3. On 29th September, 1959, the first opponent, Jashbhai Motibhai Desai, who is the original complainant, filed a complaint before the third Joint Civil Judge, Jr. Dn., and Judicial Magistrate, First Class, Nadiad, for an offence under Section 409 of the Indian Penal Code against the accused in regard to the payments which he directed the Chief Officer to make in regard to the above mentioned proceedings and travelling expenses as stated above. The learned Magistrate himself made an inquiry on receipt of this complaint under the provisions of Section 202 of the Cr. P. C., and on 9th January 1960, issued a bailable warrant. On 11th January, the accused presented himself before the Court before the warrant was actually served on him and gave an application to the learned Magistrate. It is that application which has led to the present reference.

4. So far as it is material to the present reference, it may be stated that the main ground which was taken by the accused-applicant in that application before the learned Magistrate was that he was a public servant within the meaning of sec. 197, Cr. P. C., and not removable from his office except with the sanction of the State Government and that in regard to the transactions in question, he acted or purported to act in the discharge of his official duty and that in these circumstances, the learned Magistrate was not competent to take cognisance of the complaint except with the sanction of the State Government, which admittedly has not been obtained in this case. The learned Magistrate while disposing of this application observed in the course of his order, dated 9th February 1960, that the question whether the sanction should be obtained or not was not so clear in the case before him. However, the learned Magistrate further observed that he did not rule out that the said sanction was not at all necessary, further stating that the question would be considered at the proper stage. The learned Magistrate also observed that if it appeared that there was a bar against the prosecution of the accused for want of the required sanction, the question would be considered in that light at a future stage and that at that stage he thought that it was too early to decide that question. Giving his views this way, the learned Magistrate dismissed the application of the accused-applicant. Against this order of the learned Magistrate, a revision application was filed before the learned Sessions Judge. The learned Sessions Judge in a detailed and careful order came to the conclusion that in this case sanction was necessary holding that the accused was a public servant not removable except with the sanction of the State Government and that the acts charged against him were done by him in his capacity as a public servant or purporting to act as such public servant. The learned Sessions Judge, under these circumstances, has expressed the view that sanction was necessary for the prosecution of the accused-applicant on the above-mentioned charges, and that as no sanction was obtained from the State Government, the learned Magistrate was not competent to take cognizance of the complaint. Under the circumstances, the learned Sessions Judge has made a reference that the proceedings before the learned Magistrate should be quashed for want of sanction.

5. Two questions arise in this reference: (1) whether the accused-applicant is a public servant not removable from his office except with the sanction of the State Government; and (2) whether the acts done by him, which are alleged to constitute the offence alleged against him, have been committed by him while acting or purporting to act in the discharge of his official duty. If these two conditions are satisfied, then under the provisions of Section 197, Cr. P. C., no Court is competent to take cognizance of such an offence against the accused, except with the previous sanction of the State Government.

6. Now, In regard to the first question whether the accused-applicant is a public servant, who is not removable from his office, except with the sanction of the Slate Government, I must turn to the relevant provisions of the Bombay Municipal Boroughs Act, 1925. Section 56(1) of the said Act provides as follows:

'Every municipal councillor, officer or servant and every lessee of the levy of any municipal tax, and every servant or other person employed by any such lessee shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.'

7. Section 18(1) of the Act says as follows:

'A municipality shall be presided over by a resident who shall be elected by the councilors from among their number. There shall be a vice iesident similarly elected for each municipality...

Taking Section 18(1) and Section 56(1) of the Act together it is fairly clear that a president can only be elected from the councilors of the municipality. Therefore, the president is also and continues to remain, a councillor of the municipality evert after he is elected as President, the only difference being that in addition to his rapacity as a councillor, he has the added dignity and the position of the President. Therefore, the President of the Municipality is a public servant within the meaning of Section 21 of the Indian Penal Code. In fairness to Mr, Shah, the learned counsel for opponent No. 1, I must observe that he has conceded that that position cannot be challenged that the President is a public servant within the meaning of the Act. Independently, however, of the concession, it is my view that he is a public servant within the meaning of Section 21 of the I. P. C.

8. The next question that arises in connection with this first point is whether he is a public servant, who is not removable from his office except with the sanction of the State Government. In this connection, I may refer to Section 27 of the Bombay Municipal Boroughs Act, 1925, which provides as follows:

'The State Government if it thinks fit, on the recommendation of the municipality supported by at least two third of the whole number of councillors, may remove any councillor elected or nominated under this Act, if such councillor has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct or has become incapable of performing his duties as a councillor:

Provided that no resolution recommending the removal of any councillor shall be passed by the municipality unless the councillor to whom it relates has been given a reasonable opportunity of showing cause why such recommendation should not be made.'

Thus, it is clear from the provisions of Section 27 that a councillor of the municipality can only be re-moved by the State Government.

9. Proceeding further, Section 21(1) of the said Act provides as follows:

'A President or vice-Presidcnt shall be removable from his office as such President or vice-President by the Municipality by a resolution passed to that effect, provided that three-fourths of the whole number of the councillors of the municipality vote in favour of such resolution and provided, further, that before such resolution is passed the President or vice-president is given a reasonable opportunity of showing cause why such resolution should not be passed.'

Sub-section (2) of Section 21 of the Act provides as follows:

'A President or vice-President shall also be removable from his office as such President or vice-President by the State Government for misconduct or neglect of or incapacity to perform his duty and the President or vice-President so removed shall not be eligible for re-election as a President or Vice-President during the remainder of the term of office of the Municipality.'

10. Under the provisions of Section 27, a municipal councillor is liable to be removed from his office by the State Government, while under the provisions of Section 21(1) a President is removable from his office, as such President, by the Municipality by a resolution as prescribed by the said sub-section. Under Sub-section (2) of Section 21, a President is also removable from his office as such President by the State Government.

11. Now, relying on the provisions of Section 21(1) of the Act, it is contended on behalf of opponent No. 1, that the President is removable from his office by the Municipality under Sub-section (1) of Section 21. Therefore, it is contended that one of the conditions of Section 197, Cr. P. C., is not satis-fled in this case, for the reason that the public servant concerned is removable in this particular case by an authority other than the State Government. It may however, be borne in mind in this connection that Section 21(1) provides for the removal of a President (also the vice-President) by the Municipality from the office of the President as such or the office of the vice-President as such. So, even if by a resolution of the Municipality a President is removable under Section 21 (1), he is removable as such President but he still continues to remain as a councillor. Therefore, it is obvious that even though a President can be removed by the Municipality under Section 21(1), the removal attects his capacity or office as a President only and does not touch his capacity as a councillor. In other words, the individual concerned continues to retain his capacity of a public servant in his office as a councillor. The question, therefore, to be determined is whether under the provisions of Section 197, Cr., P. C., as applying in the context of this case, the removal should be the removal of the President as such or a complete removal in his capacity as a public servant. It seems to me that the proper construction of Section 197 as applying In the context of this case is that the removal that is contemplated is the removal as a public servant, which includes not only his capacity of a public servant as a President but also his capacity as a public servant as a municipal councillor. In this view, it is clear that the President is not removable in the capacity of a public servant, which capacity includes the President's office as a municipal councillor under the provisions of Section 27 of the Act except by the State Government. Therefore, in my view, this is a case, where the petitioner-accused is a public servant, who is not removable from his capacity as a public servant, except by the State Government.

12. Having looked at the provisions of the statute in this connection, I shall now refer to the decisions, which have been brought to my notice in this connection. My attention was drawn to the case of Emperor v. Hira Lal Das : AIR1939Cal636 , where it was held that a vice-Chairman of a Municipality cannot be prosecuted in respect of certain acts performed by him in that capacity in connection with the placing of contracts for the supply of oil to the Municipality, without the sanction of the local Government in view of the provisions of Section 197, Cr. P. C. A vice-Chairman of the Municipality in that case was removable by two-thirds vote of the commissioner's (meaning the members of the municipality) while a commissioner could only be removed by the Local Government. The person charged in that case was the vice-Chairman of the Municipality. The case came up before a Division Bench of the Calcutta High Court consisting of Mr. Justice Hen-derson and Mr. Justice Sen. The relevant observations (at p, 572 of Cal LJ) : (at p. 636 of AIR) ) are as follows:

'The reference has been opposed on behalf of the Crown and the contention of the learned Deputy Legal Remembrancer is that, inasmuch as the petitioner can be removed from his office as vice-Chairman by a vote of two-thirds of the commissioners under the provisions of Section 61 of the Bengal Municipal Act, Section 197, has no application to the proceedings.

In our judgment it is impossible to divorce the position of the petitioner as vice-Chairman from his position us commissioner. He was still a commissioner while acting as vice-Chairman and, indeed, unless he was a commissioner, it would be impossible for him to be appointed to that office. If the position were that anybody could be appointed to the post of vice-Chairman, the argument of the Crown might have some force in it, In fact, however, in discharging the duties of that office, the petitioner was working as a commissioner.'

In the above case before the Calcutta High Court, therefore, where the position was somewhat similar to the position as it obtains in this case, it was held that though the vice-Chairman could be removed by two-thirds vote of the municipality, still he would be entitled to the protection of Section 197, Cr, P. C., as he was also a Municipal ccuncillor and as such he was not removable from his office except by the State Government.

13. My attention was also drawn to a case of the former Bombay High Court, reported in 42 Bom LR 1193: (AIR 1941 Bom 85), Vishnu Tatyaba Naik v. Emperor. In that case, there were two accused, a Sub-Overseer in the employ of the District Local Board, and the second accused was the Chairman of the Works Committee. Under the provisions of Section 38 of the Bombay Local Boards Act, 1923, a Local Board may appoint committees to exercise the powers and perform the duties of the Local Board in respect of any purpose, subject to the provisions of the said Act and it was competent under Sub-section (4) of Section 38 to the Board at any time to discontinue or alter the constitution of such committee. In other words, it was competent to the Board to put an end to the constitution of the whole or part of any committee. In other words, the members of the committee were liable to be removed at any time by the Board; but so far as the removal of the members themselves was concerned under the provisions of Section 31, that power of removal of the members of the Local Board was vested in the State Government. So, the position in this Bombay case was that the vice-Chairman of the Works Committee, as a member of that committee was removable by the Local Board but as a member of the Local Board itself, he was only removable with the sanction of the State Government. As. stated above, the prosecution was against the overseer as well the Vice-Chairman of the Works Committee. The second accused was the vice-Chairman of the Works Committee. Under the provisions of the Bombay Local Boards Act, 1923, Section 135, every member of the Local Board is deemed to be a public servant within the meaning of Section 21 of the I. P. C, No sanction was obtaitied for the prosecution of the second accused in this case and Mr. Justice Wassoodew at p. 1200 (of Bom LR): (at p. 88 of AIR) of the report observed in this connection as follows:

'There is no doubt that the member is also entitled to protection under Section 197 of the Criminal Procedure Code. He in a statutory public servant according to Section 135 of the Bombay Local Boards Act, and the act complained of was done or purported to be done in the exercise of his official duty. As a member is not removable without the sanction of the Local Government! under Section 31 of the Act, the sanction of that Government would be necessary for his prosecution under Section 197, Cri, P. C. Therefore, I think the rule in his revisional application must be made absolute and the proceedings pending before the Resident First Class Magistrate of Manmad quashed.'

14. The question that was raised before the Division Bench of the Bombay High Court in the above mentioned case was also somewhat similar to the question raised before me in this case and the interpretation of Section 197, Cr. P. C., in that case was also to the effect that though as a vice-Chairman of the Works Committee he may be removable by the District Local Board, as a member of the Local Board, he was only removable by the Local Government and, therefore, as a public servant he was removable only by the Local Government and that, therefore, he was entitled to the protection of Section 197, Cr. P. C. In other words, sanction to prosecute him was necessary. I respectfully agree with the views expressed in the above Calcutta and Bombay decisions and come to a similar conclusion in this case, viz., that in the present case though the President is removable by the Municipality in certain contingencies as a President, he is not removable as a councillor of the Municipality, except by the State Government, and that, therefore, in his capacity as a public servant, he is only removable by the State Government because as a councillor, as I have stated above, he is only removable by the State Government. In these circumstances, one con-dition of Section 197, Cri. P. C., is satisfied, viz., that the President is a public servant, who is removable only by the State Government.

15. The next question that arises is whether in this case it can be said that the offence alleged against the accused was committed by him while acting or purporting to act in the discharge of his official duty. It is contended on behalf ot opponent No. 1 that in this case the President has usect his office as a mere cloak for the acts In question. In other words, it was contended that there was a pretence of his office, which he had made in doing the acts, which are alleged against him and that really the acts were done neither in his capacity of a public servant nor were they purported to have been done in the discharge of his official duty. On the other hand, it is contended on behalf of the accused that the acts complained of have been done by him while acting in the discharge of his official duty or, at any rate, while purporting to act in the discharge of his official duty. It is necessary in this con-nection to refer to certain provisions of the Bombay Municipal fforoughs Act, 1925. Section 31(a) of the Act provides as follows:

xxxxx

(d) the President of a Municipality may in cases of emergency direct the execution or stoppage ot any work or the doing of any act which requires the sanction of the Municipality, and the immediate execution or doing of which is, in his opinion, necessary for the service or safety of the public, and may direct that the expense of executing such work or doing such act shall be paid irom the municipal fund.'

16. It appears that under the above provisions of Section 31 (d), in cases of emergency, the President has the power to direct, amongst other things, the doing of an act, which requires the sanction of the municipality, and the immediate doing or which is in his opinion necessary for the service of the public, and to direct that the expenses for doing such an act shall be made from the Municipal funds. In other words, if the President thinks that there is a case of emergency he has the power to direct the doing of an act, which requires the sanction of the Municipality without! previously obtaining such sanction, if it is necessary for the service of the public and for that purpose he has the power to direct the payment of the expenses of doing such an act from the Municipal funds. Prima facie, it appears, therefore, that under the provisions of Section 31(d), if the President thinks that there is an emergency and if he further thinks that the immediate doing ot a thing is necessary for the service of the public, then in that case, it is within his powers to direct the doing of such an act and to order the payment for the doing of such an act, even without the sanction of the Municipality. Therefore, under Section 31(d), if the contingency which is mentioned in that section is present, in that contingency it is within the powers of the President of a Municipality to direct the payment of expenses of doing an act without previously obtaining the sanction of the Municipality. It is true that under Rule 160 of the Rules of the Nadiad Municipality, it is provided as follows:

'No suit shall be instituted, compromised or defended on behalf of the Municipality without their sanction.'

It follows, therefore, that to direct payment by the President in connection with such legal proceedings, he must previously obtain the sanction of the Municipality under Rule 160. It is also true that under Rule 135 of this Municipality, no payments on behalf of the Municipality shall be made except in cases covered by Rules 136 to 139 (not material to the present case), if the payment has not been ordered by the Controlling committee. The scheme of the rules, therefore, is that ordinarily speaking and as a general rule, no payments on behalf of the Municipality can be made except in excepted cases (with which we are not concerned in this case) before payment has been ordered by the controlling committee and In particular, as a result of Rule 160, no legal expenses could be incurred, much less paid, on behalf of the Municipality without the sanction of the Municipality. This is the ordinary rule. There might however, be cases of emergency, and it is to Provide for these emergent caSes that a provision is made under Section 31 of the Bombay Municipal Boroughs Act, 1925, to the effect that in case of emergency mentioned in Sub-section (d) thereof it is within the power of the President to direct the doing of an act and also to direct payment in connection therewith, without previously obtaining tha sanction of the Municipality, provided, in his opinion, it is necessary for the service of the public.

17. It was pointed out on behalf of the opponent No. 1 that there is a proviso to Section 31, which says that in case an action is taken under Sub-section (d) of Section 31, the President shall report forthwith the action taken under this section and the reason therefor to the Standing Committee at its next meeting. It was contended that in this particular case, no such report was made to my mind, not making o the report under the proviso cannot take away the power chat is given under Sub-section (d) of Section 31. It is true that if no such report is made after the exercise of the powers under Sub-section (d), it may be an ingredient amongst other things to find out whether the onwers under Sub-section (d) were exercised properly. Nonetheless, I do not think that mere non-reporting of the action taken Under Sub-section (d) is fatal to the exercise of the power under Sub-section (d) of Section 31) of the Act.

18. Now, in the case before me, as slated earlier, the President has directed the payment of the legal charges incurred in connection with the several writ applications, in which the President and (he Municipality both were made parties, except for one petition, where the President was not made a party but the Municipal Borough of Nadiad was made a party. The charges also in-clude the travelling expenses of the President as well as the Secretary of the Municipality in connection with the legal proceedings, it cannot be said that such a direction by the President to the Chief Officer to make payment of these legal charges and the travelling expenses cannot fall under the provisions of Section 31(d). The question whether the discretion was exercised by the president dishonestly or fraudulently is a question which will affect the merits of the case. For the present, I am only concerned with the question whether the payment can be said to be in tha execution of the powers of his office as a President or in the purported execution of the powers of his office as a President. There seems to be little doubt that the direction to pay tho legal charges and the travelling expenses in this case would fall under the provisions of Section 31(d), in so tar as mere power of the President is concerned to do such an act. At any rate, it is a purported exercise o such power as contemplated under Section 31(d).

19. In this connection, now, I may refer to certain decisions, which lay down the principles to be observed in determining the question whether a particular act is within the powers of public servant concerned or whether that can be said to be within the purported exercise of the powers of the public officer concerned. I may refer to the case of Amrik Singh v. State of Pepsu reported in : 1955CriLJ865 where after discussing the relevant authorities, his Lordship Mr. Justice Venkatarama Ayyar, J., observes at p. 1310 (of SCR) : (at p. 313 of AIR), as follows:

'The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.'

20. Now, in this case, it cannot be denied that the payment of the legal and travelling charges do hinge on his duties as a President and that they are connected with his duties as a President. It was in his duty as a president that he attended to this litigation. So, it cannot be said that the acts complained of were unconnected with his official position as President, and if such is the position, then according to the above decision ot the Supreme Court, the sanction is requisite.

21. Again, I may refer to the case of Mata-jog Dobey v. H, C. Bhari, reported in 1955-2 SCR 925: ((S) : [1955]28ITR941(SC) , where Mr. Justice Chandrasekhara Aiyar observes at p. 933 (of SCR) : (at p. 49 of AIR) as follows :

'The interpretation that found favour with Varadachariar, J., in the same case is stated by him in these terms Hori Ram Singh v. Emperor); 'There must be something in the nature of the act complained of that attaches it to the official character of the person doing it'. In affirming this view, the Judicial Committee of the Privy Council observed in Gill's case, (H. B. Gill v. The King : A Public servant can only be said to act or 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..... he test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.'

22. Further, the same learned Judge observes at p 934 (of SGR): (at p. 49 of AIR), as follows:

'The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the Act must hear such relation to the duty that the accused could lay a reasonable, but not a pretended or a fanciful claim, that he did it in the course of the performance of his duty.'

23. In this case, therefore, as I have stated earlier the question is whether the direction for the payment can be said to he an act having reasonable connection with the discharge of his official duty or not. If one can say that the act bears such a relation to the duty of the President that the President could lay a reasonable claim that he did it in performance of his duty, then in that case, he is entitled to the protection of Section 197, Cr. P. C., of course, it should not be a pretended or a fanciful claim. This naturally must depend on the facts and circumstances of each case. On the facts and circumstances of this case, as stated above, in the several writ applications the Presi-dent and the Municipality were made parties, the lawyers were engaged on behalf of the Municipality and the President and the President directed the payment of these charges, viz., legal charges and the travelling expenses as an emergent expenditure, in exercise of the powers vested in the President under Section 31(d) of the Act. The least that can be said is that if this is not under the exercise of his powers it cannot be denied to be in the purported exercise of the powers of the President under Section 31(d) of the Act.

24. In this connection, I may also refer to the observations of Mr. Justice Broomfield, in the auove referred to case in 42 Bom LR 1193 : (AIR 1941 Bom 85), made at p. 1201 (of Bom LR): (at p. 89 of AIR), which are as follows:

'If the act alleged to be criminal is done by a public servant in his official capacity, that is, if it is an act which it is his duty to do as such public servant under the law governing the case, he is protected, although, by reason of tho iact that he bad done the act dishonestly or fraudulently or in any other manner contrary to the law, he may have committed a criminal offence. On the other hand, if the offence charged involves an act or acts, which the accused is not required to do and which are outside his official duties, the liability to prosecution is unfettered.'

25. Now, in this case, therefore, what one has to see is whether the act done falls within the duty of the public servant or within the purported exercise of the duty of the public servant. It it is within the duty of the public servant, then he is protected under Section 197, Cr. P. C., although if he has done the act dishonestly or fraudulently or in any manner contrary to the law, he may have committed a criminal offence. What is important to bear in mind is that the Court has to find out whether there is authority to do such an act in his official capacity or whether the act done is in the purported exercise of the official duty. In both these cases, a public servant is protected. If he has committed dishonesty or fraud Or an illegality in the sense that he has done in the manner contrary to law, he may have committed a criminal offence and that is a matter on merits, with which I am not concerned at this stage.

26. My attention was drawn by Mr. Shah for the first opponent to another Supreme Court case reported in AIR 1960 SC 286, Satwant Singh v. State of Punjab, wherein it was held that the act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. I have already considered this argument in an earlier part of this judgment. It cannot be denied that in this case the accused can reasonably claim that what he did was in the course of the performance of his duty. This claim is neither a pretence nor a fanciful one.

27. In this view of the case, there is no doubt that the direction for the payment of the money in regard to the legal charges and travelling expenses given to the Chief Officer of the Municipality by the accused-President, is in the discharge of his official duty and it does bear such relation to his duty as a public servant, such that he can claim reasonably but not fancifully that he did it in the performance of his official duty.

28. In these circumstances, the accused-President is entitled to the protection of Section 197, Cr. P. C., viz., that the sanction of the State Government is necessary to be obtained before launching the prosecution of the accused under Section 409 of the Penal Code in this case the learned Magistrate was not competent to take conginzance of the complaint in question without such a sanction. No such sanction having been obtained the proceedings in this case must and are quashed.

29. The reference is accepted.


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