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Hasmukhlal Harilal Ghelani Vs. Fakir Dadasha Kadarsha and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR262
AppellantHasmukhlal Harilal Ghelani
RespondentFakir Dadasha Kadarsha and anr.
Excerpt:
- - since the act which is complained of by opponent no......the indian penal code, in the court of the learned judicial magistrate, first class, gondal. the learned magistrate has ordered process to be issued against all the accused for the offence punishable under section 500 of the indian penal code. thereafter on 5-8-1977, the petitioner made an application at exh. 8 to the learned magistrate requesting him either to drop the proceedings or to dismiss the complaint against him in view of the fact that no sanction was obtained under section 322a of the gujarat panchayat act, 1961 (hereafter referred to as 'the act') by opponent no. 1 before filing the complaint against him. after hearing the parties, the learned magistrate decided that application on 30-4-1979 and held that the complaint against the petitioner was not maintainable in absence.....
Judgment:

G.T. Nanavati, J.

1. The petitioner is a Sarpanch of Shivrajgadh Gram Panchayat. On 10-6-1976, the Panchayat passed a Resolution on the basis of some complaints received by it against opponent No. 1. The said complaints were to the effect that (he activities of opponent No. 1 were prejudicial to the maintenance of public order, and, therefore, it was necessary that appropriate action under the provisions of the MISA should be taken against him. After referring to the said complaints, it has been stated in the Resolution that the Collector and D.S.P. of Rajkot should be requested to take immediate action against opponent No. 1 before any untoward incident took place or before the situation deteriorated any further. According to opponent No. 1 the contents of the said Resolution are defamatory; and, therefore, he has filed a complaint against the petitioner and 13 others who were parties to the said Resolution, for an offence punishable under Section 500 of the Indian Penal Code, in the Court of the learned Judicial Magistrate, First Class, Gondal. The learned Magistrate has ordered process to be issued against all the accused for the offence punishable under Section 500 of the Indian Penal Code. Thereafter on 5-8-1977, the petitioner made an application at Exh. 8 to the learned Magistrate requesting him either to drop the proceedings or to dismiss the complaint against him in view of the fact that no sanction was obtained under Section 322A of the Gujarat Panchayat Act, 1961 (hereafter referred to as 'the Act') by opponent No. 1 before filing the complaint against him. After hearing the parties, the learned Magistrate decided that application on 30-4-1979 and held that the complaint against the petitioner was not maintainable in absence of a sanction from the competent authority under Section 322A of the Act. Against that order, opponent No. 1 filed Criminal Revision Application No. 12 of 1979 in the Court of the learned Additional Sessions Judge, Rajkot. The learned Additional Sessions Judge was of the view that in passing the Resolution, the members of the Panchayat including the petitioner were not discharging any function or duty under the Act; and, therefore, the protection of Section 322A was not available to them. He, therefore, allowed the revision application and set aside the order passed by the learned Magistrate. Hence the petitioner has filed this revision application challenging the order of the learned Additional Sessions Judge.

2. Mr. S.J. Joshi, the learned advocate for the petitioner has submitted that under Section 88 of the Act, it is the duty of each panchayat to make in the area within its jurisdiction reasonable provision in regard to all or any of the matters specified in Schedule 1 to the Act. Over and above matters specified in Schedule I to the Act, the panchayat can perform other functions enumerated in Section 89 of the Act. Under Sub-section (2) of Section 89 it is open to the panchayat to make provision for carrying out any other work or measure which is likely to promote, inter alia, safety, of the inhabitants of the area. He has further submitted that the word 'safety' occurring in Sub-section (2) of Section 89 should not be narrowly interpreted so as to exclude from its meaning and scope, steps which are of preventive nature. In the alternative he has submitted that even if it is held that the action of passing a Resolution in this case is not covered by the provisions of Section 89 of the Act, then such a Resolution can he said to have been passed by the panchayat under the purported performance of its statutory duties or functions. In my opinion, there is in reason why the word 'safety' occurring in Section 89(2) of the Act should be interpreted narrowly. If the panchayat comes to know about certain activities which are likely to result into breach of peace or public order, then certainly it will be its duty to lake necessary steps which would tend to promote safety of the inhabitants of the area. To deny such a power or to take away such a duty or function would not be either in the interest of the Panchayat or in the interest of the (sic) of the area. In fact, looking to the role which the panchayat is required to play as is evident from the various provisions of the Act, such a power or function should be conceded to the panchayat. In my opinion, therefore, it was open to the panchayat to pass such a Resolution, provided it was otherwise justified in doing so. Since the act which is complained of by opponent No. 1 was done by the petitioner in performance 'of his duty under the Act, or in any case in the purported exercise or performance of such duty or function, he would be entitled to the protection conferred on him by Section 322A of the Act.

3. In un absence of the necessary sanction, therefore, no cognizance could have been taken against him. However, it is made clear that I am not expressing any opinion as regards truth or falsity of the allegations made against the petitioner and others; and whatever observations have been made above are only with a view to determine the question raised before me viz. whether prior sanction was necessary in the present case before prosecuting the petitioner.

4. In the result, the revision application is allowed. The judgment and order parsed by the learned Additional Sessions Judge, Rajkot in Criminal Revision Application No. 12 of 1979 is set aside; and the order passed by the learned Magistrate is restored. Rule is made absolute. The stay granted by this Court will stand vacated as no longer necessary.


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