B.P. Beri, J.
1. By his order dated the 5th July 1966 the Additional Sessions Judge,Jaipur District. Jaipur has recommended that the order of the Additional Munsif-Magistrate, Jaipur District, Jaipur whereby he dismissed the complaint for want of sanctionbe set aside.
2. The facts which it is necessary to notice for the disposal of this reference briefly stated are these. Ladu Ram in his complaint claimed that he was the owner of a certain plot of land near Tonk Road and had fixed his slabs and pattis therein. The Chairman. Municipal Board, Chaksu and four other members on account of political rivalry served him with a notice on 10th November 1964 to the effect that he had trespassed into the land of the Municipal Board and was directed to remove the 'Pattis' and slabs he had affixed by 10 A.M. of 11th November 1964 failing which the Municipal Board would itself get them removed. It appears that Laduram neglected to comply with this order, and Chairman Rameshwar and four other members of the Municipal Board, Chaksu removed or caused the removal of the 'Pattis' and the 'Katlas.'
Thereupon Laduram instituted a complaint on 3rd December 1964 under Sections 379 (theft) and 427 (mischief) of the Indian Penal Code, cognizance whereof was taken by the Additional Munsif-Magistrate Jaipur Dist., Jaipur. An argument was raised before him that the complaint was not competent unless there was a sanction as envisaged by Section 197 of the Code of Criminal Procedure as the accused were public servants not removable from their service save by or with the sanction of the State Government. This objection prevailed with the learned Magistrate, against which a revision was preferred before the Additional Sessions Judge. Jaipur District Jaipur For the reasons that the powers of removal were delegated by the State Government to the Director of Local Bodies by certain notifications and also because a Chairman was removable by means of a vote of no-confidence, the learned Additional Sessions Judge was persuaded to hold that no sanction as required by Section 197 of the Code of Criminal Procedure was necessary, and has made the recommendation that the learned Additional Munsif-Magistrate's order be set aside.
2a. I have heard Mr. Vishinlal Thakur in support of this reference and Mr. Tikku opposing it. The learned Deputy Government Advocate is indifferent to it.
3. It is not controverted that the Chairman and the members of the Municipal Board, Chaksu are public servants within the moaning of Section 21 of the Indian Penal Code by virtue of the provisions of Section 87 of the Rajasthan Municipalities Act 1959 (hereinafter called 'the Act'). The emphasis laid before me by Mr. Thakur is that because a Chairman of a Municipal Board or Council, as the case may be, can be removed by a vote of no-confidence, it cannot be said that he is not removable save by or with the sanction of the State Government. In support of this contention Mr. Thakur invited my attention to a decision of the Mysore High Court in The State v. Chikkavenkatappa, AIR 1965 My 253, wherein the learned Judge held that.
'As the President or Vice-president of a Municipal Council is not a public servant who is not removable from his office save by or with the sanction of the State Government, but is also removable by a resolution of the Municipal Council expressing want of confidence, I do not think the sanction provided by Section 197, Criminal Procedure Code, is necessary for prosecution of the President or Vice-resident of a Municipal Council, constituted under the Mysore Town Municipalities Act, 1951.'
In this case the learned Judge followed an earlier decision of his own Court. He also repelled the contention raised before him that the word 'remove' employed in Section 23(7) of the Bombay District Municipal Act, 1901, or 'vacate his office' in Section 23 (9) of the Mysore Town Municipalities Act 1951 made no difference for the purposes of Section 197 of the Code of Criminal Procedure. He preferred the grammatical meaning of the word 'remove' contained in the Concise Oxford Dictionary and, therefore, came to the conclusion that no sanction was necessary as a President or a Vice-President of the Mysore Municipality was removable by a vote of no-confidence. This authority no doubt lends support to the contention of Mr. Thakur.
In Shrilal v. Manmath Kumar Misra, 1959 Rai LW 609 :(AIR 1960 Raj 173) Modi J. observed that it is hard to understand that a municipal chairman, who is certainly a municipal member, should be deprived of this protection merely because he can he deprived of his position as a chairman by a vote of no-confidence, though he still retains his office as a member and by virtue of such a position he can still lay claim to the protection of Section 197.In Pukhraj v. Ummaidram, AIR 1964 Raj 174 a Division Bench case of this Court to which I was a party, the meaning of the expression 'removable from service' as employed in Section 197 Cr. P. C. came to be considered. The question posed was as to what is meant by removal under Section 197 of the Code of Criminal Procedure. We held:
'Section 197 grants the protection to the public servants but such a public servantmust be one removable from his office only by or with the sanction of the State Government or the Central Government. The very word 'removable' signifies that the termination of the employment of the public servant must not come to an end automatically by force of law nor must it come to an end because he has resigned. It must come to an end on some superior authority forcing him to vacate the office. Usually in the case of a Government servant, this is done on account of misconduct and certain safeguards are provided under Article 311 of the Constitution by placing restrictions on the removal of a Government servant. It is in this technical sense that the word should be construed in Section 197 Cr.P.C. and not in any other sense. It is to be construed in the sense in which it is used in the Civil Service (Classification, Control and Appeal) Rules. There is ample authority for the proposition that under Article 311, it is to be so construed. See Satish Chandra v. Union of India, AIR 1953 S.C. 250, Khem Chand v. Union of India, AIR 1958 S.C. 300, Parshotam Lal Dhingra v. Union of India, AIR 1958 S.C. 36. There is no reason to construe the word 'removal' in a different manner in Section 197 Cr. P. C. when it is to be applied to the Government servant. It is urged, however, that when it is to be applied to a person holding a public office as an elected representative, such a narrow construction on the word 'removal' should not be given. We are not satisfied that in interpreting the word 'removal' in the case of an elected representative it must be construed loosely The word 'removal' must, have the meaning of causing vacation of office as a result of misconduct or misbehaviour or any other similar cause.'
And thus it was held that the benefits of Section 197 Cr.P.C., were available to the Sarpanch and Up-Sarpanch elected under the Rajasthan Panchayat Act.
4. So far as I am concerned, this concludes the matter and I have no hesitation in expressing my respectful dissent to the view taken by the Mysore High Court.
5. The next question which still remains to be examined is whether on account of delegation by the two notifications mentioned in the order of reference of the learned Additional Sessions Judge, Jaipur District. Jaipur the Chairman and Members of the Municipal Board, Chaksu fall outside the pale of public servants who are not removable save by or with the sanction of the State Government. It will be necessary in this context to notice the statutory provisions and the above referred notifications.
6. The relevant provisions of Section 63 of the Act lay down.-
Section 63 -- 'Removal of members (1) The State Government may subject to the provisions of Sub-sections (2) and (3), remove a member of a board on any of the following grounds, namely:
(a) that he has absented himself from the meetings of the board on more thanthree consecutive months or three consecutive ordinary general meetings, whichever is the longer period without leave of the board;
Provided that the period during which such member was in jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account,
(b) that he has failed to comply with the provisions of Section 61.
(c) that after his election he has incurred any of the disqualifications mentioned in Section 18 or Section 26 or has ceased to fulfil the requirements of Section 24:
(d) that he has-
(i) been guilty of misconduct in the discharge of his duties, or
(ii) been guilty of any disgraceful conduct, or
(iii) become incapable of performing his duties as a member, or
(iv) otherwise flagrantly abused in any manner his position as such member; Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such officer or authority as it may direct and after the member concerned has been afforded an opportunity of explanation.
Section 299 of the Act reads as follows,--'Delegation of powers by Government, (1) The State Government may delegate all or any of its powers under this Act, other than the powers exercisable by it under Sections 4, 9, 11, 14, 29, 49, 88, 90, 92, 93, 97, 100, 104, 105, 107, 109, 113, 264, 280, 291, 295, 297 & 298 or under this section or the power to appoint appellate authority under any provision of this Act, to any officer subordinate to it.
(2) The State Government may also order that all or any of the powers conferred on the Collector or any other officer of the State Government by or under or in pursuance of any provision of this Act shall be exercised for any specified period by some other officer or authority that may be named in the order.'
7. The first notification in exercise of the powers of Section 299 read with Section 63 of the Act was published in the Rajasthan Gazette Extraodinary dated November 13, 1959, the material portion of which reads as follows,--
'No. F. 4 (534) LSG./59, I.--In exercise of the powers conferred by Section 299 of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959) the State Government hereby delegates the powers exercisable by it under:
(i) Clauses (a) and (b) of Sub-section (i) of Section 53:
to the Director of Local Bodies, Rajasthan, with immediate effect.'
By virtue of another notification bearing No. F. 8/84/LSG/62/ dated December 10, 1962 published in the Rajasthan Gazette Extraordinary dated the 19th December, 1962, the Director of Local Bodies was conferred with the powers under Section 63 (1) (a) and (b) in respect of all Municipalities.
8. When these two notifications are read in juxtaposition of the statutory provisions of Section 63 it becomes abundantly clear that the State Government has delegated its authority to the Director of Local Bodies only in respect of the removal of a member who has absented himself from the meetings of the Board on more than three consecutive months or three consecutive ordinary general meetings, whichever is the longer period, without leave of the Board; and that he has failed to comply with the provisions of Section 61. The said delegation does not include the causes referred to in Section 63 (1) (c) or (d). In other words, it is a partial delegation of the State Government's authority to remove a municipal member on these two grounds contained in (a) and (b) only. Has this partial delegation the effect of taking out the members of the Municipal Board. Chaksu from the authority of the State Government to remove them when they are accused of theft and mischief? The answer in my opinion must be in the negative. The State Government has retained to itself the power to remove a municipal member from his office if he is guilty of misconduct in the discharge of his duty or has been guilty of disgraceful conduct or has flagrantly abused in any manner his position as such member. Imputation of a commission of crime on account of political rivalry seems to fall more under Section 63 (1) (d) rather than either under Section 63 (1) (a) or (b). For these causes the power of removal of the Chairman or the members still remains with the State Government and, therefore, I have no difficulty in coming to the conclusion that in the circumstances of this case there is no delegation of power by the State Government for the removal of a municipal member to the Director of Local Bodies and the power still resides with the State. In that view of the matter the case falls squarely within the expression 'removable from his office save by or with the sanction of a State Government' employed in Section 197 of the Code of Criminal Procedure. A sanction for the prosecution of the Chairman and members of the Municipal Board. Chaksu was, therefore, necessary.
9. In this view of the matter, this reference is rejected and the order of the learned Additional Munsif-Magistrate Jaipur District, Jaipur is upheld.