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Shrilal Vs. Manmath Kumar Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 220 of 1957-B
Judge
Reported inAIR1960Raj173; 1960CriLJ996
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(2), 197 and 197(1); Rajasthan Town Municipalities Act, 1951 - Sections 22 and 43; Indian Penal Code (IPC) - Sections 21
AppellantShrilal
RespondentManmath Kumar Misra and anr.
Appellant Advocate Mr. and Mrs. O.C. Chatterji, Advs.
Respondent Advocate P.N. Dutt, Adv.
DispositionRevision dismissed
Cases ReferredChauth Mal v. Panna Lal
Excerpt:
.....duties. 2 who was and is the executive officer and was without doubt not removable save by the state government, the same position should not be predicated to hold good in the case of the chairman. this section clearly provides that every municipal member, officer or servant shall be deemed to be a public servant within the meaning of section 21 of the indian penal code. 1 that even though the chairman may be deprived of his office by a vote of no-confidence, he wou'd still remain a member and that a member could rot be removed from his office by any authority -save the state government -and that the two offices which a chairman holds in himself are so inextri-cably inter-connected that it is almost impossible to divorce the one from the other, and so, if a chairman as a member could..........no. 2 who was and is the executive officer and was without doubt not removable save by the state government, the same position should not be predicated to hold good in the case of the chairman. it is argued that a chairman of a municipal board is not only removable by the state but can also be removed by a vote of no confidence passed by a requisite number of members of the municipal board as provided by sub-s. (9) of section 22 of the rajasthan town municipalities act, 1951 (act no. 23 of 1951) (hereinafter referred to as the act), therefore, it cannot be said that such a person is 'not removable from his office save by or with the sanction of a state government.'7. now section 197 cr. p. c. provides a fetter to the general right of an aggrieved person to prosecute an offender.....
Judgment:
ORDER

I.N. Modi, J.

1. This revision raises an interesting question of law relating to the interpretation of Section 197 of the Code of Criminal Procedure.

2. The material facts are briefly these. The petitioner Shrilal is a resident within the town municipality of Sikar. Opposite party No. 1 Man-math Kumar Misra is the chairman of the Municipal Board, Sikar. Opposite party No. 2 Shanti Swaroop Goyal was its executive officer at the material time. A dispute arose between the petitioner and the municipal board over the erection of a wall to which the municipal board objected, but, which according to the petitioner he had erected on his own land. On 18-3-1957, the board gave the notice to the petitioner to dismantle the wall.

The petitioner did not comply with this order. Thereupon the board ordered the demolition of the wall (obviously by its own men) on 9-4-1957. In the meantime the petitioner had instituted a suit in the court of the Munsiff Sikar and obtained an interim order of injunction against the board restraining it from demolishing the wall. The petitioner's case is that this order was served on the Chairman, Manmath Kumar Misra, opposite party No. 1 at 11 a. m. on 10-4-1957, and yet this wall was demolished by the other accused and the respondents were a party to a conspiracy to demolish the petitioner's wall. Thereupon the petitioner instituted the complaint out of which this revision arises against respondents Nos. 1 and 2 and twelve others (with whom we are not concerned in this revision) under sections 447, 427, 120B and 147 I. P. C. in the court of the First Class Magistrate, Sikar.

3. An objection was raised on behalf of the respondents here that the Magistrate was ircom-petent to take cognizance of the case against them as no sanction to prosecute them had been obtained from the State in accordance with the provisions of Section 197 Cr. P. C., and without such sanction, their prosecution was illegal.

4. This objection prevailed with the Magistrate and so he dismissed the complaint for want of sanction so far as the present respondents were concerned. The case was allowed to be proceeded with as respects the other accused. The petitioner then went in revision against the aforesaid order to the Additional District Magistrate, Sikar who agreed with the order of the trial court and dismissed the revision. The present revision has been filed from the aforesaid order.

5. It may be pointed out that the main contest in the courts below centered on the point whether the acts of the opposite parties complained against had not been done or did not purport to have been done within the discharge of their official duties, consequently, sanction to prosecute them within the meaning of Section 197 Criminal Procedure Code was not called for. Both courts below repelled this contention, and, in my opinion, rightly. Suffice it to state, so far as this aspect of the case is concerned, that the position seems to me to be indisputably correct that the impugned acts of the respondents, assuming that they were individually responsible for them were acts which are clearly relatable to the discharge of their official duties. Any contention to the contrary on tin's score must be held to be devoid of all force. Reference may be invited in this connection to my decision in Hariram v. B. P. Sood, AIR 1957 Raj 51.

6. This brings me to the controversy which has been raised at the bar of this Court, which is that, leaving aside the case of respondent No. 2 who was and is the executive officer and was without doubt not removable save by the State Government, the same position should not be predicated to hold good in the case of the chairman. It is argued that a chairman of a municipal board is not only removable by the State but can also be removed by a vote of no confidence passed by a requisite number of members of the municipal board as provided by sub-s. (9) of Section 22 of the Rajasthan Town Municipalities Act, 1951 (Act No. 23 of 1951) (hereinafter referred to as the Act), therefore, it cannot be said that such a person is 'not removable from his office save by or with the sanction of a State Government.'

7. Now section 197 Cr. P. C. provides a fetter to the general right of an aggrieved person to prosecute an offender and lays down that in the case of certain persons no prosecution would be possible unless previous sanction of the authority mentioned in the section has been obtained. This fetter operates in two ways: (1) the accused must be a public servant of the kind mentioned in the section, or, in other words, he must be a Judge or a Magistrate or a public servant who is not removable from his office save by or with the sanction of the State Government or the Central Government and (2) the offence with respect to which the prosecution is sought must be committed by the accused while acting or purporting to act in the discharge of his official duty.

8. As already stated above, there is no dispute before me, and none indeed can be raised so far as the second condition mentioned above is concerned. The question is whether the first condition is also fulfilled in the present case because unless both the conditions are fulfilled, section 197 could not be successfully invoked by the accused.

9. This brings me to the precise position of a chairman of a municipal board, under the Act. In the first place, is he a public servant? The answer is provided by Section 43 of the Act. This section clearly provides that every municipal member, officer or servant shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. Sub-section (2), of section 4 of the Criminal Procedure Code lays down that all words and expressions used in the Code but not defined therein shall have the meanings attributed to them by the Penal Code. Taking these provisions together, I have no doubt that every member of the municipal board is a public servant. Section 43, however, does not specifically refer to the chairman. But the chairman is also a member of the Board. For section 22 of the Act exacts that the chairman shall be elected in accordance with certain rules to be made by the Government by the members of a municipal board from amongst themselves. The chairman, therefore, must be held to be a public servant.

10. But this is not enough to attract Section 197. Further, the chairman must belong to one of the specified categories of public servants mentioned in the section itself before he can successfully claim the protection of Section 197 Cr. P. C.

11. The precise question for determination therefore boils down to this: Whether a chairman is a public servant who is not removable from his office except by or with the sanction of the State Government. It is urged with great force on behalf of the petitioner that a chairman is removable by a vote of no-confidence of the members of the municipal board themselves under Sub-section (9) of Section 22, and, consequently, it cannot be predicated of him that he is removable only by the State Government or by its sanction and, therefore, he does not fall within the class of public servants protected under Section 197 Cr. P. C. Sub-section (9) of Section 22 is in the following terms:

'Every chairman and every vice-chairman of a municipal board shall forthwith be deemed to have vacated his office:-- (a) if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the whole number of members at a special general meeting convened for the purpose, or

(b) if resolutions expressing want of confidence in him are passed by the votes of not less than one-half of the whole number of members at special general meetings convened for the purpose within an interval of not less than two months and not more than four months from each other.'

12. It is necessary to bear in mind certain other relevant provisions in this connection. Section 22 also contains these. Sub-section (11) provides that the term of every chairman (and vice-chairman) shall, save as otherwise provided correspond with the term of the Board. Under sub- Section (12) chairman may resign his office, but relin-quishment of an office does not and canrot obviously amount to removal. Under sub-s. (6) it is further provided that a chairman who absents him-self from the municipality, for a period exceeding a month so that he is unable to perform the duties of his office without having obtained leave of absence (such leave not exceeding six months, shall 'cease to be' a chairman. The expression 'cease to be' requires to be carefully noticed.

I have already set out Sub-section (9) of Section 22. The point to which I wish to draw attention here is that when a vote of no-confidence is passed against a chairman in the manner prescribed by this section, what the section then says is that the chairman 'shall forthwith be deemed to have vacated his office.' Does such vacation amount to removal from office altogether particularly as the chairman is a member also and he continues to be so notwithstanding the no-confideree motion? Then Sub-section (10) is important, the material portion of which is as follows:

'Every chairman ..... shall, after an opportunity is afforded for hearing him, he removable from his office as such chairman by the Government for misconduct in the discharge of his duties or for neglect of or incapacity to perform his duties or if he is unable to pay his debts.' It is this sub-section which alone uses the word 'removable.' Then comes Sub-section (13) which is in these terms: 'In the event of the non-acceptance of office, death, resignation or removal from office of a chairman or vice-chairman or of his election or appointment being void, or of his becoming incapable of acting in such office or having ceased to be a member under Section 12, previous to the ex-piry of his term of office as chairman or vice-chairman, the vacancy shall be filled up, in accordance with the provisions of the foregoing subsections, and the person elected or nominated to fill up the vacancy shall hold office for the residue of the term for which the chairman or vice-chairman in whose place he is so elected or nominated would have held it if the vacancy had not occurred.'

The language of this sub-section is again not without significance inasmuch as it refers to the various modes on account of which the office of a chairman may fall vacant, and a vacancy by removal is contra-distinguished from other modes such as by the chairman resigning his office, or his election or appointment being void, or by his becoming incapable of acting in his office, or ceasing to be so under the various provisions referred to above.

13. The question is whether in these circumstances the liability of a chairman to be subjected to a vote of no confidence and thereby his de-privation of that office can be equated with his removal under Section 10, particularly when the Act in such a case seems deliberately to avoid the word 'removal' and instead uses the phraseology that the chairman shall thereby be deemed to have vacated his office. It seems to me that perhaps the framers of the Act designedly used this phraseology to denote that in their contemplation the consequences of these other acts which result in a chairman vacating his office amount merely to his ceasing to be a chairman any further, or amount to the imposition of a certain disability front him in that regard but do not amount to his removal from office, strictly so-called.

14. In this view of the matter, it seems reasonable to hold that a chairman of a municipal board is a person who, so far as his removal is concerned, falls within the category of public servants who can be removed by the State Government under Clause (10) of Section 22 of the Act and by no lesser authority. It is true that being an elected individual he is liable to lose his office, otherwise, under certain other contingencies which I have discussed above but these on the plain language of the Act do not amount to his removal from that office,

15. If that is the correct conclusion to be arrived at on the peculiar language of the provisions referred to above, then it seems to me that, notwithstanding the circumstance that a chairman may be deemed to have vacated his office on account of a morion of no-confidence having been lawfully passed against him and he may thereby be deprived of his office as a chairman as also he may cease to be so under certain other contingencies (such as absence from duty except on permissible leave from competent authority), that does not amount to his removal from office, and that so far as such removal is concerned, it is only the State Government which can remove him under Sub-section (10) of Section 22 and no other authority can do so.

16. It was strenuously contended before me on behalf of the opposite party No. 1 that even though the chairman may be deprived of his office by a vote of no-confidence, he wou'd still remain a member and that a member could rot be removed from his office by any authority -- save the State Government -- and that the two offices which a chairman holds in himself are so inextri-cably inter-connected that it is almost impossible to divorce the one from the other, and so, if a chairman as a member could not be removed from his office save by the State or by its sanction, the contesting respondent should still be entitled to the protection of Section 197. Strong reliance was placed in this connection on Emperor v. Hiralal Das AIR 1939 Cal 636 to which I propose to refer a little later.

17. Now section 14 of the Act which governs the removal of a member from his office reads as follows:

''14. Liability to removal from office: The Government, if it thinks fit, may remove any member elected or nominated under this Act, after giving him an opportunity of being heard and after such enquiry as it deems necessary, if such member 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 member.'

18. It was, however, forcibly pressed upon me in this connection on behalf of the petitioner that even a member of the municipal board is removable from office by other ways, and my attention was invited in this connection to Section 12 of the Act, which prescribes the general disqualifications lor the membership of a municipal board. Sub-section (1) specifies these disqualifications. There is also a proviso to that section which softens the rigour of some of these disqualifications. Sub-sections (2) and (3) then provide that where a person who is elected or nominated as a member is already subject to any of the disqualifications in sub-section (1) or becomes subject to these disqualifications after he becomes a member or does certain other things which are mentioned in Sub-section (3), his seat shall be deemed to be or to have become vacant. It is thus contended that a member of a municipal board is also removable from his office by or under these diverse contingencies, and, therefore, he cannot be said to be removable only by or, with the sanction of, the State Government under Section 14 of the Act. I have given my most careful and anxious consideration to this argument and do not feel persuaded to accept it as correct.

19. What is important to remember in this connection is that when the Act talks of the effect of these disqualifications on a member where they already existed at the time of his election to his office, or where these occur after his becoming a member, it specifically says that his seat ''shall be deemed to be vacant.' A deeming provision like this, to my mind, cannot be equated with the provision for removal, in its proper sense of the word, which can only be brought about by an order of the Government passed under Section 14 and by no other authority.

There is no other provision in the case of a member under which he can be removed. Such disqualifications, to my mind, are incidental to an elective office and I see no adequate justification for holding that the consequence thereof amounts to removal in the sense in which this word seems to have been used either under Section 197 Cr. P. C. or section 14 of the Act in question. The only legitimate conclusion at which one may arrive in this state of affairs is that under the Act in question a member of a municipal board is a public servant who cannot be 'removed' from his office save by the State Government within the meaning of Section 197 Cr. P. C.

20. How does this affect the position of a chairman in so far the applicability of Section 197 is concerned? Let us assume for the sake of argument that a chairman can be removed from his office by the members of the Board themselves by a motion of no-confidence passed according to law. What then follows is that he loses his chairmanship, but he still continues to be a member of the Board, and he continues to hold the latter office. I have already held above that the correct position in law so far as a member of a municipality is concerned is that his 'removal from office' can properly speaking take place only by an order of the State Government, and by no other authority.

The question which then arises is whether the chairman though he ceases to be a chairman but still continues to be a member of the board can thereby be deprived of the legal protection under Section 197 to which he is certainly entitled under that section by virtue of his position as a member and which office he still holds. In my opinion, not. Any other view would worsen a chairman's position as compared with that of a member which, be it noted, be still continues to be. I can see no reason in law or common sense for depriving him of the legal protection in connection with acts performed by him in discharge of his duties which should still be claimable by him as a member of the municipal board.

It may be argued that the chairman may have certain specific duties to perform other than those of a mere member. The argument is plausible but unsound. The reason is that the duties which a chairman performs are in their correct ultimate analysis really inseparable from his duties as a member even though they may in certain cases stand higher than those of a mere member. The office of a chairman cannot be altogether dissected or dissociated from the office of a member and to my mind is inseparably connected with it so that any protection which in law is available to a member cannot be denied to a chairman, assuming of course that the chairman is one of the members and not an outsider.

21. Any other view would lead us to a highly anomalous position. On the view which I have felt persuaded to accept, a member of a municipal board cannot in relation to his official acts or acts purported to have been done in his official capacity be prosecuted for any offence connected with them without the sanction of the State. On the other hand, a chairman of the board (simply because he may lose his office of chairman by a vote of no-confidence) would be liable to prosecution for an alleged offence in connection with this official duties without any such sanction.

This view would expose the chairman to endless vexatious and harassing proceedings, and would make his position a constant source of suffering and humiliation. Having regard to the policy of the Legislature in equating the positions of a member of a municipal board with that of a public servant within the meaning of Section 21 of the Penal Code, I have no hestitation in saying that the Legislature could have hardly intended such a result.

22. Now the object of Section 197 Cr. P. C. is to provide protection to certain class of public servants against vexatious and harassing proceedings by providing that before a prosecution is launched against them, the prosecutor must secure the sanction of a superior authority to such pro-secution. Likewise the object behind Section 43 of the Act, broadly speaking, is to provide such a protection to municipal members and officers, and I find it hard to understand that a municipal chairman, who is certainly a municipal member, should be deprived of this protection merely because he can foe deprived of his position as a chairman by a vote of no-confidence, though he still retains his office of a member and by virtue of such a position he can still lay claim to the protection of Section 197.

23. This view receives considerable support from the ruling of the Calcutta High Court in AIR 1939 Cal 636. The facts in that case were that the vice-chairman of a certain municipality was being prosecuted for cheating the municipality but no sanction of the local govern-ment had been previously obtained. It was contended that as the petitioner could be removed from his office as vice-chairman by a vote of two-thirds of the Commissioners under the provisions of Section 61, Bengal Municipal Act, Section 197 could have no application to this case. What the learned Judges said was this:

'In our judgment, it is impossible to divorce the position of the petitioner as Vice-chairman from his position as 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 foe 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 this view of the matter, the learned Judges held that the Vice-Chairman where he was a Commissioner of a municipality in discharging the duties of a Vice-Chairman was also working as a Commissioner (or which is the same as a member), and, therefore, he could not be prosecuted without the sanction of the State Government under Section 197 Cr. P. G

24. Learned counsel for the petitioner strongly relies on Chauth Mal v. Panna Lal, ILR (1954) 4 Raj 464. In that case the question was whether the members or the chairman of the municipality of Bhawani Mandi were entitled to the protection of Section 197 Cr. P. C. It was admitted that the provisions of the U. P. Municipalities Act, 1916. were applicable to the municipality and that it was provided under that Act that in the case of a non-city municipality, the members and the chairman were removable by the Commissioner under certain circumstances, although they were also removable by the Local Government. It was held by a learned single Judge of this Court that previous sanction of the Government was not necessary for prosecuting them. If I may say so, with respect, this decision is perfectly correct, as the members and the chairman in that case were clearly removable not only by the State Government but also by a subordinate authority. That case is, therefore, clearly distinguishable from the present case, inasmuch as the power of removal of the members and the chairman under the Act in question has not been allowed to any subordinate authority but is vested in the Government itself.

25. The view, therefore, which on a balance of all the relevant considerations, I feel persuaded to accept is that a chairman under the Act, where he is sought to be prosecuted for any offence alleged to be committed by him while acting or purporting to act in the discharge of his official duties cannot be prosecuted without the sanction of the State Government. I hold accordingly.

26. The result is that this revision is without any force and I hereby dismiss it.


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