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Sukhdeo and ors. Vs. Kisturchand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 108 of 1969
Judge
Reported in1970WLN537
AppellantSukhdeo and ors.
RespondentKisturchand
DispositionRevision dismissed
Cases ReferredIn Camden (Marquis) v. I.R.C.
Excerpt:
.....then, in my view he cannot rightly claim the protection.;(b) way passing through field is not a 'public street'.;by no stretch of imagination a road or a way passing through a field can be held to be a public street so as to empower a gram panchayat to exercise its power regarding the removal of encroachments in respect of public streets.;(c) sarpanch disturbing a way through the field of the complainant - whether sarpanch is entitled to protection under section 197.;it cannot be said that the petitioners were acting in proper discharge of their duties under the act. consequently they cannot be held entitled to the protection under section 197 cr. p.c. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act,..........(11) of sub-section(l) ). it has also the power to widen open enlarge or otherwise improve any public street, culvert or bridge minimum damage to the neighboring fields (vide clause (xiii) of sub-section(1) of section 26 of the act). under the third schedule attached to the act a panchayat may provide for removal of obstructions and prejections in public streets or places and sites, not being private property, which are open to the public, whether such sites are vested in the pnnchayat or belong to the state government. these are the only provisions under the act to which my attention was invited by learned counsel for the petitioners.8. now, a bare perusal of these provisions shows that these are the powers conferred in connection with the removal of encroachment by owners or.....
Judgment:

Kan Singh, J.

1. This is a revision application by the accused Sukhdeo and others in a case under Sections 447, 427 and 147 Indian Penal Code against I the order of the Additional Munsif Magistrate No. 1, Bundi holding that the prosecution of the accused was not barred under Section 197, Cr.P.C.

2. Kistorcharad resident of Gendoli lodged the complaint against Sukhdeo and nine others to the effect they opened a new way through the field of the complainant after closing the way which lay through the field of accused No. 5 Bala and in doing so they caused damage to the standing crop as also the fencing of the complainant's field. The accused were alleged to have committed the offence of criminal trespass as well. After the accused were summoned they put in an application before the learned Magistrate that Sukhdeo was the Sar Panch of the Gram Panchayat & the complainant had closed an existing way through his field which was reopened by the Panchayat. The learned Magistrate dismissed the application holding that the accused cannot be said to have acted in discharge of their official duties. Against the order of the learned Additional Munsif Magistrate the accused first approached the learned. Additional Sessions Judge, Bundi in revision but he declined to make a reference.

3. The learned Judge observed that the powers of the Gram Panchayat have been specified in Section 23 (A) to Section 27 of the Rajasthan Panchayat Act, 1953 (hereinafter referred as the Act) and Section 26 (1) (11) of the Act only provided that the panchayat shall have the power to require the owner or occupier of any building to remove any encroachment on a public way or drain but in the instant case the dispute related to an agricultural land and not to any building, and consequently the learned judge held that the panchayat has no power to order the removal of encroachment, if any Again, according to the learned Additional sessions Judge no such power was conferred even by the third Schedule attached to the Act.

4. It is in these circumstances that the accused have come to this Court in further revision.

5. The question that falls for determination is whether in the circumstances of the case sanction for prosecution was necessary under Section 197 Cr.P.C. Section 197, Cr.P.C. reads as under:

197 (1) when any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a 'State Government' or 'the Central Government' is accused of any offence alleged to have been committed by him while action or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the 'Previous sanction--

(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and

(b) in the case of a person employed in connection with the affairs of a State, of the State Government.

(2) The Central Government or the State Government' as the case may be, may determine the person by whom, the manner in which the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

This Section has been interpreted in a number of cases of the Supreme Court as also of this High Court. In the recent case of the Supreme Court reported as Prabhakar v. Sinari v. Shankar Anant Verlekar : 1969CriLJ1057 their Lordships after reviewing the previous cases observed as follows:

The language of Section 197 clearly is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section which would include the Deputy Superintendent of Police when he 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. It does not matter if the acts were strictly necessary for the discharge of the duty. What has to be found out is whether the act and the official duty were so interrelated that one could postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of situation. It is not every offence committed by a public servant which required sanction for prosecution under Section 197 (1) nor even every act done by him while he was actually engaged in the performance of his official duties. But if the act complained of was directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary and that would be so, irrespective of whether it was in fact, a proper discharge of his duties or not.

The same view has been taken by a learned Judge of this Court in the case reported as Girdharilal and Ors. v. Lalchand and Ors. The leared Judge pointed out that even if the action is somewhat beyond the scope of official duty, it can be protected if it is done under colour of office.

6. In the present case there is no manner of doubt that a Sar Panch is, according to the provisions of the Act, a public servant within the meaning of Section 197, Cr.PC Further, he is removable by the Government. Consequently, the protection under Section 197 Cr. P.C. will be available to a Sar Panch, provided he could show that the offence, if any, was committed while he was acting or purporting to act in the discharge of his official duty. It will not be necessary for him to show if the act was strictly necessary for the discharge of the duty. What he has to show is that the act and the official duty were so inter-related that one could postulate reasonably that it was done by him in the performance of his official duty though possibly in excess of the needs and requirements of the situation. If the act is directly connected with his official duty then sanction would be necessary even if it would not be a proper discharge of his duty. It has to be noted that it is the deviation if any, in the performance of the duty of the public servant that will attract the protective provisions under Section 197, Cr.P.C. But if in a particular Case the public servant was not competent to perform a certain duty at all then, in my view he cannot rightly claim the protection. In other words, if the act could not be said to be within the embit of his powers at all then the protection under-Section 197 Cr. P.C. will not be available to him.

7. Let me now approach the matter from this standpoint. Now, according to Section 26 of the Act Panchayat has the power to do all acts necessary for and incidental to the execution of the duties and in particular and without prejudice to the generality of the foregoing provision it has the power by notice in writing, inter alia, to require the owner or occupier of any building to remove any encroachment on a public way or drain ( vide Clause (11) of Sub-section(l) ). It has also the power to widen open enlarge or otherwise improve any public street, culvert or bridge minimum damage to the neighboring fields (vide clause (xiii) of Sub-section(1) of Section 26 of the Act). Under the third Schedule attached to the Act a Panchayat may provide for removal of obstructions and prejections in public streets or places and sites, not being private property, which are open to the public, whether such sites are vested in the Pnnchayat or belong to the State Government. These are the only provisions under the Act to which my attention was invited by learned Counsel for the petitioners.

8. Now, a bare perusal of these provisions shows that these are the powers conferred in connection with the removal of encroachment by owners or occupiers of any building. Under clause (xiii) of Sub-section (1) of Section 26 the power is given to widen, open, enlarge or otherwise improve any public street, culvert or bridge with minimum damage to the neighboring fields. This clause will no include power of removal of obstructions. On way, through an agricultural land even if it is assumed that it is a public way. The term 'public street' has been defined under Clause (6) of Section 2 of the Act as follows:

(8) public street means any road, street, bridge, lane square, court alley or passage which the public has a right to pass along and includes on either side or gutters and the upto the defined boundary of any abutting property, notwithstanding the projection over such land of any verandah or other super structure.

Learned Counsel submits that this definition of 'public street' will cover a road or a way passing through an agricultural field area. With all respect. I find myself unable to construe the term 'public street' so widely so much so that thereby the term will be denuded of its natural meaning altogether. A word will not lose the ordinary content of its meaning even in an artificial definition given by a stature unless the words in the artificial definition are so clear that the natural meaning of the word may be wholly subverted and superimposed by the artificial meaning given by the legislature. The dictionary meaning of the term 'street' as given in the Chambers Twentieth Century Dictionary is 'A road lined with houses, broader than a lane, including or excluding the houses and the footways.' In the Oxford English Dictionary the meaning given to the word is 'A road in a town or village (comparatively wide, asopposed to a 'lane' or 'alley'), running between two lines of houses; usually including the side-walks as well as the carriage way, also, the road together with the adjacent houses.

9. I am mindfull of the caution given in Craies on Statue Law VI Edition at page 160 'that' ordinary dictionaries are somewhat delusive guides in the construction of statutory terms, 'but the author has pointed out quoting Lord Calerige and Cozens-Hardy M. R. that though dictionaries are not to be taken as authoritative exponents of the meanings of words used in acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense (vide (1886) 16 Q. E. D. 636, 641). In Camden (Marquis) v. I.R.C. (1914) 1 K.B. 641 at p. 647 Cozens-Hardy M. R. observes that:

It is for the court to interpret the statue as best it may. In so doing the court may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well-known and authoritative dictionaries.

Therefore, even though the term 'public street' in the Act has been given a wider meaning by including there in even bridges, lanes, squares, courts, alley or passage which the public has a right to pass along inclusive of on either side the drains or gutters and the land upto the defined boundary of any of abutting property, the essential meaning of the term 'street' as a road lined with houses has not been subverted or given up. Now. in the very nature of things a road or a way passing through a field or an agricultural land lacks the essential characteristics of a 'street'. Therefore it cannot be held to be a public street within the meaning of the Act. In a certain context a wider meaning may be necessary for example, where an 'abadi' area may have been carved out and places for building marked though the buildings have not so for been constructed. But by no stretch of imagination a road or a way passing through a field can be a public street so an to empower a Gram Panchayat to exercise its powers regarding the removal of encroachments in respect of public streets.

10. The learned Counsel also referred me to the provisions of Section 251 of the Rajasthan Tenancy Act which runs as follows:

251. Rights of way and other private assement--(1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the tehsildar against such restoration.

(2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil Court.

He submitted that the powers exercisable by the Tehsildar under this section have been delegated to the Gram Panchayat. Assuming this is so, the section empowers the Tahsildar to give relief to any holder of land in actual enjoyment of an eosementary right of way or other easement. This provision has obviously been enacted for the benefit of holders of land who may require access to their own lands through others' lands. This section cannot be resorted to for the purpose of giving relier to the public at large for going through a field or an agricultural land. In the circumstances it cannot be said that the petitioners were acting in proper discharge of their duties under the Act, Consequently they cannot be held entitled to the protection under Section 197 Cr.P.C. The revision has no force and it is hereby dismissed.


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