K.K. Sharma, J.
1. The applicant Prabhu Dayal is being prosecuted in the Court of the Munsif Magistrate, Sawai Madhopur under Sections 166 and 504, I. P. C. on the complaint of one Milapchand.
2. Summons were issued to the applicant and when he appeared he raised an objection that the prosecution was bad because no sanction of the State Government under Section 197, Cr. P. C., hadbeen obtained by the complainant, He also raised an objection that the prosecution was bad by virtue of Section 79 of the Rajasthan Panchayat Act, 1953 (hereinafter to be referred to as the Act). The learned Magistrate after hearing the parties overruled the objections on the ground that at that stage there was nothing to show that the accused had committed the offence while acting or purporting to act in the discharge of his official duty. The applicant went in revision and the learned Additional District Magistrate, Sawai Madhopur agreed with the learned Trial Magistrate and dismissed the application. The applicant has now come in revision to this Court.
3. I have heard Sri S. M. Mehta on behalf of the accused applicant and Sri S. C. Agarval on behalf of the complainant. It has been argued by Mr. Mehta that under Section 78 (1) of the Act, the applicant being a Sarpanch of a Panchayat under the Act was a public servant within the meaning of Section 21, I. P. C. and he was not removable save with the sanction of the State Government. It was also argued that the applicant was a Judge within the meaning of Section 21 read with Section 19, I. P. C. and his act was in the discharge of his official duty. Sanction under Section 197, Cr. P. C. was therefore necessary for the prosecution of the applicant. It was further argued that Under Section 79 of the Act, there could be no prosecution of the applicant.
4. Learned counsel for the applicant relied upon two rulings of their Lordships of the Supreme Court on the point of the applicability of Section 197, Cr. P. C. They are in cases of Shreekantiah Ramayya Munipalli v. State of Bombay, (S) AIR 1955 SC 287 (A) and Matajog Dobey v. H. C. Bhari (S) AIR 1956 SC 44 (B).
5. Learned counsel for the complainant relied upon the rulings of the Supreme Court in the cases of Amriksingh v. State of Pepsu, (S) AIR 1955 SC 809 (C) and Premnarain Mohan v. State, AIR 1957 Madh-B 172 (D). It was argued that Section 197, Cr. P. C. applies only when the public servant concerned is not removable from his office save by or with the sanction of a State Government or the Central Government. It was argued that in the present case the applicant being a Sarpanch of a Panchayat under the Act could be removed from his office also by the Chief Panchayat Officer in case the vote of non-confidence was passed against him and he did not resign within three days from the date of the passing of the no-confidence motion.
It was argued that the applicant cannot therefore be said to be a public servant who was not removable from his office save by or with the sanction of a State Government or the Central Government. Further it was argued that the act complained of against the applicant was not committed by the applicant while acting or purporting to act in the discharge of his official duty and consequently sanction u/s 197, Cr. P. C was not necessary.
As regards the applicability of Section 79 of the Act, it was argued that it applies only when the prosecution, suit or other legal proceedings are in respect of anything lawfully and in good faith done under the Act or any rule or bye-law made thereunder. It was argued that the applicant was not doing anything lawfully and in good faith under the Act or any rule or bye-law made thereunder and therefore he is not protected by Section 79 of the Act.
6. I have considered the arguments of both the learned counsel. It is not necessary for me to decide in this case whether the applicant was a public servant not removable from his office save by or with the sanction of a State Government or the Central Government because to my mind the applicant comes within the definition of a Judgeunder Section 19, I. P. C. Section 19, I. P. C. says that the word 'Judge' denotes not only every person who is officially designated as a Judge but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which if confirmed by some other authority, would be definitive or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
Under Chapter 4 of the Act, a Panchayat has got criminal and civil jurisdiction in cases of particular type. Sections 28 to 37 of the Act deal with criminal cases and Sections 38 to 44 with civil cases which can be heard by a Panchayat. Sections 45 to 55 lay down general provisions relating to the civil and criminal cases. Panchayats have been empowered to impose penalty in criminal cases and pass decrees in civil cases. It is clear that they nave been empowered by law to give, in any legal proceedings, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive. To my mind, a Panch is a Judge within the meaning of that term under Section 19 of the Indian Penal Code.
A Judge is also a public servant as defined in Section 21 of the said Code. Under Section 19 any one of the body of persons which is empowered by law to give a definitive judgment is a Judge. The applicant being a Sarpanch of one of tine Panchayats under the Act can therefore be said to be a Judge and unlike other public servants it is not necessary for a Judge to be protected under Section 197 that he should not be removed from his office save by or with the sanction of a State Government. The fact therefore that the applicant could be removed by the Panchayat Officer by virtue of Section 19 of the Act does not take away from him protection given to a Judge by Section 197, Cr. P. C.
7. This, however, does not dispose of the matter. It has also to be considered whether the applicant committed the alleged offence while acting or purporting to act in the discharge of his official duty. It is clear from the complaint that the Panchayat was acting as a Court when the alleged offence is said to have taken place. The complaint also shows that at first the applicant asked the Court peon to send the complainant out of the Court room and when the complainant began to argue and seek shelter under Section 21 (5) of the Act, he began to abuse the complainant.
Now although the Court is ordinarily open to public, it cannot be denied that Judges or Magisstrates have power to exclude any person from Court room if they think that it was necessary for carrying on the proceedings in Court smoothly. It may be that some Courts exercising this power may lose sense of proportion, but it cannot be denied that when they ask anybody to get out of the Court room, they do at least purport to act in the discharge of their official duty.
In my view the applicant purported to act in the discharge of his official duty when he asked the complainant to get out of his Court room. Of course even a Court is not entitled to use objectionable language and it may be that particular language used by a Court amounts to some offence, but merely because an offence appears to have been committed by a Judge, the protection of Section 197 cannot be taken away if the offence has been committed by the Judge purportng to act in the discharge of his official duty.
8. In the case of (S) AIR 1955 SC 287 (A), referred to above, the Government servants who were in charge of the Military Engineering Stores Depot and were entrusted with certain Gevernment funds, entered into a conspiracy to defraud Government of certain properties and in pursuance of this conspiracy they arranged to sell them and the sale price was pocketed by them and not credited to Government. It was argued that it was none of the duties of the accused to misappropriate the Government money and therefore Section 197 did not apply. Their Lordships while holding that Section 197 applied observed as follows :
'Now it is obvious that if Section 197, Cr. P. C. is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.'
9. In the case of (S) AIR 1956 SC 44 (B), cited above, warrants were issued by the Income-tax Investigation Commission to the four accused who were Government officials. They raided certain premises with some policemen. The father of the person whose premises were searched came to the place and found that the officials had forcibly opened the lock of the door of the room in which there were several books and papers which they were collecting and packing into bundles for removal. He protested, pointed out that their actions were illegal and oppressive, and wanted a proper search list to be prepared and proper receipts to be given to him for the books and documents sought to be seized and removed.
Thereupon two policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van and taken to the Burra Bazar thana; there he was assaulted again before being sent to the hospital. He was brought back and kept in the lock up till midnight when ne was released on bail. On these facts a complaint was filed under Sections 325, 342 and 504, I. P. C. against the two policemen. The accused objected to their prosecution without sanction under Section 197, Cr. P. C. Their Lordships held that sanction under Section 197 was necessary. It was observed that
'there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.'
10. On the facts given in the complaint the accused can reasonably claim that he did the act complained of in the course of the performance of his duty.
11. In my opinion, sanction under Section 197, Cr. P. C. in the present case was necessary for the prosecution of the accused applicant.
12. As regards protection under Section 79 of the Act, that section applies only when the prosecution, suit or other legal proceedings are in respect of anything lawfully and in good faith done under the Act or any rule or bye-law made thereunder. On the allegations in the complaint it cannot be said that the prosecution of the applicant is in respect or anything lawfully and in good faith done under the Act or any rule or bye-law made thereunder. It would be for the accused to bring out either in the cross-examination of prosecution witnesses or to produce his own evidence to show that the complaint is in respect of anything lawfully and in good faith done under the Act or any rule or bye-law made thereunder. At present there are no materials for giving him protection under Section 79 of the Act.
13. The application for revision is allowed and the proceedings pending in the Court of the learned Magistrate are quashed. It would beopen to the complainant to prosecute the applicant after obtaining the sanction as required by Section 197, Cr. P. C.