B.P. Beri, J.
1. This is an application under sections 439 and 561A of the Code of Criminal Procedure directed against the order of the Additional Munsiff-Magistrate No. 2, Jodhpur dated the 25th of July, 1968 and upheld by the learned Sessions Judge, Jodhpur by his order of the 15th March, 1969.
2. Lalchand instituted a complaint against Girdharilal Mahajan, Administrator, Municipal Council, Jodhpur, Ramchander Mathur, Commissioner, Municipal Council, Jodhpur, Maghraj Agrawal, Health Officer, Municipal Council, Jodhpur, Laxman Singh Panwar, Sanitary Inspector, Hansraj, Jama-dar and the Municipal Council, Jodhpur, under Sections 268, 278 and 290 of the Indian Penal Code before the Additional Munsiff-Magistrate No. 2, Jodhpur. The complainant alleged that he runs a shop in Manak Chowk, Jodhpur. On the other side of the road abutting his shop there is Moti Bai's temple. The Municipal Council, Jodhpur gets refuse collected in front of the shop of the complainant and thereby obstructs more than half the road and renders the atmosphere noxious to the health of the public and the residents of the locality. The heaps so collected emit offensive odour to the annoyance of the public. Because it blocks the passage on the road it causes common injury, danger and annoyance to the people in general and those who dwell or occupy properties in the neighbourhood in particular. The refuse is being collected every day in the hours between 7 and 8 A. M. and is left lying there upto 4 P. M. and some times even for 2 or 3 days consecutively. This public nuisance, alleges the complainant, is created by the acts of the petitioners before me and notwithstanding the fact that they were asked to remove it they had neglected to do so and, therefore, the complaint before a criminal court had to be instituted. The learned Magistrate registered a case and issued processes for the attendance of the accused persons. The accused persons did not appear before the Magistrate but moved an application by way of revision before the learned Sessions Judge, Jodhpur, who has expressed the opinion that the question whether the prosecution of the petitioners Nos. 1 and 2 required sanction under section 197 of the Codeof Criminal Procedure could only be decided after some evidence on behalf of the complainant had been recorded. For, add-ed the learned Sessions Judge, it was not a part of the duty of the Municipal council to create nuisance, in fact its obligation was to the contrary. He dismissed the revision application. The petitioners are still dis- satisfied and they have come up before me.
3. Mr. Singhvi appearing for the petitioners argued that the petitioners Nos. 1 and 2 are only removable by the State Government and they cannot be prosecuted for what is alleged to be their official duty without the permission of the State Government as envisaged by section 197 of the Code of Criminal Procedure. He placed reliance on Ramayya v. State of Bombay, AIR 1955 SC 287 and Matajog Dobey V. H. C. Bhari, AIR 1956 SC 44. The second submission of the learned counsel is that the petitioners Nos. 3, 4 and 5 cannot be prosecuted because on the complainant's own showing they are being accused of what is clearly a vicarious liability, which is not possible unless the statute itself so authorises. Reliance has been placed on Sri-nivas Mall v. Emperor, AIR 1947 PC 135, and Hariprasada Rao v. The State, AIR 1951 SC 204.
4. Mr. Ganpat Singh appearing on behalf of the complainant contended that the creation of a nuisance has no relation to the public duties discharged by the officers Nos. 1 and 2 and therefore no sanction under section 197 Cr. P. C. is necessary. He placed reliance on Ramnath v. Saligram, AIR 1967 All 519; Nagraj v. State of Mysore, AIR 1964 SC 269; Om Prakash v. State of U.P., AIR 1957 SC 458; Baijnath v. State of M. P., AIR 1966 SC 220; Bakhshish Singh v. State of Punjab, AIR 1967 SC 752; Arulswami v. State of Madras, AIR 1967 SC 776; Capt. Shankarrao v. Burjor D. Engineer, AIR 1962 Bom 198; Giani Ajmer Singh V. Ranjit Singh, AIR 1965 Punj 192; Kamisetty Raja Rao v. T. Rama-swamy, ILR 50 Mad 754 = (AIR 1927 Mad 566); Ladhuram v. State, 1963 Raj LW 293 == (1964 (1) Cri LJ 126); Behari-lal v. Moola, 1962 Raj LW 148 = (1962 (1) Cri LJ 192). He drew my pointed attention to section 98 (c), (d) and (g) of the Rajasthan Municipalities Act emphasising the importance of the duties of the Municipal Council and therefore the creation of a nuisance as alleged in the complaint has no relation to the acts and omissions complained by the complainant and no sanction was necessary. The petitioners Nos. 3, 4 and 5 are answerable as abettors because they aided in bringing about a public nuisance by neglecting to do their obvious duty.
5. Learned Government counsel Mr. Kalla submitted that a Municipal Council and not officers are answerable for a criminal charge and he placed reliance on Weir's 'Law of Offences and Criminal Pro-cedure,' page 243--Criminal Revision Case No. 507 of 1893.
6. All the learned counsel appearing before me are agreed that at this stage or the case it is on the assumption that the Contents of the complaint are correct that the questions aforesaid have to be answered.
7. The first question which calls for determination is: Whether it is the proper stage, in the circumstances' of this case, for the accused to raise an objection regarding lack of sanction under section 197 of the Code of Criminal Procedure?
8. The learned Sessions Judge while rejecting the application of the accused persons observed that it was no stage on which the question of want of sanction could be decided. Supporting this conclusion Mr. Ganpat Singh argued that after the accused have appeared before the Magistrate and the evidence has been led ana if it transpired therefrom that the purported act or omission on the part of the accused persons is related to the discharge of their public duty then alone the question of sanction could arise. He particularly relied on AIR 1967 All 519. The learned Judge in the Allahabad case observed that the argument advocated by the State Government before him that the Magistrate had no jurisdiction to entertain the complaint against the Opposite Party without a formal sanction of the State Government under Section 197 of the Code of Criminal Procedure is unfounded. Relying on AIR 1956 SC 44, the learned Judge held that the necessity for a sanction may reveal itself in the course of the progress of the case. This decision seems to lay down two propositions. The first is that the Magistrate is competent to entertain a complaint even without a sanction; and the second is that if in the course of the proceedings it is revealed that a sanction was necessary the question could be examined. I have no difficulty in agreeing with the latter part of the proposition. In fact, that is also the view of the Supreme Court in Matajog Dobey's case, AIR 1956 SC 44. So far as the first proposition is concerned, with respect, I am unable to subscribe to it without qualifications. Section 197 of the Code of Criminal Procedure provides that 'no Court shall take cognizance of such an offence except with the previous sanction,' of the authorities indicated therein if any of the officers mentioned in the section is accused of an offence 'alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. If the alleged acts are of the nature indicated in the section no Court can even take cognizance of the alleged offence on the plain language of the section. In this context, on the subject of sanction, I could recall the decision of the Privy Council in Gokulchand Dwarka-das Morarka v. The King, AIR 1948 PC 82, wherein their Lordships of the Privy Council expressed the opinion:
'The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.'
Their Lordships of the Supreme Court in AIR 1966 SC 220 have observed in para 4 of the Judgment:
'It is clear from the language of Section 197 that the sanction has to be taken before cognizance has been taken.'
When even at the time of taking cognizance lack of sanction has to be considered, it is open to an accused person when he has been notified of the fact that cognizance has been taken to raise the plea of, lack of sanction. It is correct that there may be cases wherein at initial stages such a question may not admit of a clear answer. It may be remembered that it is not merely the suggestion of the accused that is enough as pointed out by their Lordships. In my opinion, therefore, while it is open to an accused person to raise the plea of want of a sanction at any stage of the case but its decision would be dependent on the availability of adequate material on record enabling a Court to effectively adjudicate it.
9. The next question which arises for my consideration is whether the case before me is one in which the objection could be answered, without waiting for evidence, on the assumption that the allegations of the complaint are correct. Para 9 of the complaint says that a public nuisance comes into being because the Municipal Council and its officers collect the refuse and neglect to remove it from a public highway. It causes obstruction and annoyance on that account and also because it emits injurious and abnoxious odours. It makes a two-pronged attack of commission and omission.
10. Then the question immediately emerges for answer is: Whether such acts or omissions require a sanction before the Court could take cognizance of the offence against the accused Nos. 2 and 6, namely, Girdharilal Mahajan and Ramchander are prosecuted? It is not disputed that the Administrator and the Commissioner, who are accused Nos. 2 and 6, have been appointed by the State Government and are consequently removable by the State Government and the provisions of Section 197, Cr. P. G. apply to them. All that remains to be examined is whether the acts and or omissions attributed to these two persons fall within the circumference of the expression 'while acting or purporting to act in the discharge of his official duty'.
11. Before I answer this question it will be perhaps profitable to examine the long line of decisions cited before me to ascertain the principles so far crystallised on this point. In AIR 1955 SC 287, their Lord ships of the Supreme Court have observe
'Now an offence seldom consists of a sin-gle act. It is usually composed of severalelements and, as a rule, a whole series of acts must be proved before it can be established. ....
Therefore, the act complained of, namely, the disposal, could not have been done in any other way.'
Laying emphasis on the distinction between acting or purporting to act in the discharge of his official duty their Lordships of the Supreme Court have said that these two expressions only indicate the line of demarcation between two lands of intentions. The act nevertheless remains the same and their Lordships have added:
'Now it is obvious that if Section 197, Cr.P.C. if 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.'
In AIR 1957 SC 458 their Lordships of the Supreme Court have observed that 'no sanction is necessary to prosecute the public servant as he does not normally act in his capacity as a public servant when committing criminal breach of trust'. Their Lordships of the Supreme Court in Baij-nath's case, AIR 1986 SC 220, have quoted Lord Simmonds wherein he observed:
'The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he docs in virtue of his office.'
AIR 1967 SC 752 is a case of false claim of work executed, which was not carried out. It was observed that the accused was not a public servant nor did he abet in the discharge of his public duty. In AIR 1967 SC 776, it was observed that sanction under Section 197 is not necessary to prosecute public servant, if act complained against him is one which is entirely unconnected with his official duty.
12. I might now notice a few of the High Court judgments cited before me. In AIR 1962 Bom 198, a decision of the Bombay High Court, it is held that an act includes an illegal omission. This case arose out of the tragic floods in the City of Poona due to the bursting of Panshet and Khadakwasla Dams. The Commissioner, Collector and District Magistrate, District Superintendent of Police, etc., came to be prosecuted as they failed to protect the life and property of the populace. It was held that a sanction for their prosecution was necessary for their alleged illegal omissions. In AIR 1965 Punj 192, the learned Judges of the Punjab High Court relying on the Supreme Court cases have observed :
'To fall within the purview of the protection afforded by Section 197, the act must bear such reasonable connection with the discharge of the official duty that the public servant charged could by a reasonable but not a pretended or fanciful justification, claim that he did the act in the course of the performance of his duty. Since the question of the necessity of sanction has to be decided judicially by the Court, it hasto proceed on the material properly and lawfully placed before it by applying its judicial mind. If the allegations made in the complaint do not attract the protection of Section 197 or Section 132, Cr. P. C. then the Court cannot throw out the complaint for want of sanction.....'
13. Mr. Ganpat Singh cited before me the decision of the Madras High Court in ILR 50 Mad 754 = (AIR 1927 Mad 566), which laid down that an act arising out of abuse of official position calls for no sanction under Section 197 of the Code of Criminal Procedure. In 1963 Raj LW 293 = (1964 (1) Cri LJ 126), Bhargava, J., divided the action of receiving the money and not depositing as two independent parts and as the dishonest misappropriation was no part of the duty, no sanction therefore was necessary. In 1962 Raj LW 148 = (1962 (1) Cri LJ 192), Sarjoo Prosad, C. J., observed that if in the discharge of official duty the persons responsible have done something which had little or no connection whatsoever with the duties which he was officially required to perform and which he could as well do as a private individual no sanction was necessary. The mere fact that an occasion was provided for the commission of the offence on account of his performance of some official duty will not entitle him to any such protection.
14. For the purposes of the case before me all that I have to decide is whether the act or omission alleged against accused Nos. 2 and 6, namely, Girdharilal Mahajan and Ramchander is reasonably related to the discharge of their duty or omission of the discharge of their duty. I agree with the observations of the Punjab High Court that it is not a pretended or fanciful justification that should be taken into account but a connection close enough to bring the act or omission within the ambit of the official act done or purported to be done. The Legislature has advisably used two expressions 'acting' or 'purporting to act', the latter expression means that even if the action may be somewhat beyond the scope of official duty, but was done under the colour of office, the protection can in a given case be considered. Having regard to these principles, in my opinion, the accused Nos, 2 and 6, namely, Girdharilal Mahajan and Ramchander, are alleged to have ordered the collection of refuse and omitted to cause its removal from the road and they have thereby committed the public nuisance. Both these are directly related to their duties as Municipal Administrator and the Municipal Commissioner and they cannot in my opinion be prosecuted without the sanction under Section 197, Cr. P. C. and, therefore, the case against them cannot be proceeded with.
15. The next argument of the learned counsel is that the accused Nos. 3, 4 and 5 are being prosecuted for their vicarious liability. The contention is that unless the statute authorises a person to be vicariouslyresponsible for the criminal act or omission no person can be prosecuted therefor. Reliance is placed on Srinivas Mall's case, AIR 1947 PC 135 of the Privy Council. The proposition is well settled. But Mr. Ganpat Singh's argument is that the act or omission on the part of these three persons is directly concerned in the creation of the nuisance and its non-removal and, therefore, they are aiding and assisting in the commission of the offence of public nuisance and are abettors. This indeed is a matter which will have to be examined whether they have neglected, or if so, intentionally and thereby created an obstruction and caused discomfort to the people living in that locality or not? In my opinion, therefore, it is premature to express any opinion on this aspect of the matter.
16. Then remains the interesting question whether the Municipal Council, a corporate body, can be prosecuted as an accused for doing or omitting to do something? Mr. Kalla, learned Government counsel, drew my attention to Weir's 'Law of Offences and Criminal Procedure', Vol. I, 4th Edn., p. 243 -- Criminal Revn. Case No. 507 of 1893 -- where it was decided that the Chairman, being a public servant, was not liable to prosecution without the sanction of Government under Section 197 of the Code of Criminal Procedure, and if any prosecution was to be instituted, it should be against the Municipal Corporation. Russell on Crime, Vol. I, 12th Edn., p. 96, summarises the position thus:
'At common law a corporation aggregate has been regarded as in the nature of things incapable of treason, felonies or misdemeanours involving personal violence, such as riots or assaults, or of perjury, or it would seem offences for which the only penalty is imprisonment or corporal punishment.....
It would seem that the common law rule affords a good guide as to the intention of a statute. The modern tendency of the Courts, however, has been towards widening the scope within which criminal proceedings can be brought against institutions which have become so prominent a feature of every-day affairs, and the point is being reached where what is called for is a comprehensive statement of principles formulated to meet the needs of modern life in granting the fullest possible protection of a criminal law to persons exposed to the action of the many powerful associations which surrounded them. At common law, corporations are now indictable for nuisance and breaches of public duty, whether existing by the common law or created by statute, and whether the breach of duty is by misfeasance or non-feasance. Corporations are often indicted for non-repair or illegal obstruction of highways, and it would seem that a corporation aggregate is indictable for defamatory libel.'
On this principle prima facie it seems that the Municipal Corporation can be prosecuted for offences which are only punishable with fine, for, in the very nature of things, imprisonment of a Municipal Council is out of question.
17. With these observations the revision succeeds in part. Accused Nos. 2 and 6, namely, Girdharilal Mahajan and Ramchander stand protected under Section 197, Cr. P. C., and proceedings against them without sanction of the State Government are hereby quashed. The complaint will otherwise proceed against the rest of the accused.