M.L. Shrimal, J.
1. This revision petition is directed by Gopaldass and eight other against the order of the Additional Sessions Judge, Jalore dated March 28, 1973 whereby he set aside the order of discharge and reminded the case to the trial Magistrate for holding further inquiry into the matter and passing fresh orders according to law.
2. The fasts leading to this revision petition are that on August 12, 1966 at 5 00 p.m. the accused demolished the construction raised by the complainant and removed the material from the scene of occurrence. The complainant filed a complaint to the court of Sub divisional Magistrate Balotra and lodged a first information report at the police station, Balotra Later on, both these proceedings were consolidated. The petitioners along with others were ordered to be prosecuted under Sections 395, 147, 447, 342, 427 read with Section 149 I.P.C.
3. In the course of proceedings an objection was taken by the accused on June 3, 1967 against their prosecution on the ground that the Panchas of the Gram Panchayat were not rermoveable save by or with the sanction of the State Government, they could not be prosecuted without prior sanction of the Government by virtue of Section 197 Cr.P.C. It was also averred that the accused in the capacity of Panchas and the employees of the Panchayat acted Act, 1953 hereinafter referred to as 'the Act' and their prosecution was barred under Section 79 of the Act. In support of their contention the accused submitted thirteen documents along with the application dated June 3, 1967 Tue record shows that a copy of the list of the documents relied upon by the accused was also given to the complainant for submitting a reply. The complainant did not file any reply to the application dated June 3, 1967. The preliminary objection raised by the accused found favour with the learned Sub-divisional Magistrate, who held that the prosecution of the accused was barred by Section 197 Cr.P.C. and Section 79 of the Rajasthan Panchayat Act, 1953. The learned Magistrate quashed the proceedings and discharged the accused by his order dated September 25, 1970. A revision petition was filed by the complainant in the Court of Additional Sessions judge, Jalore against the order of the Sub-divisional Magistrate, Bdlotra.
4. The learned Additional Sessions Judge, Jalore held that the powers under Section 17 of the Act were delegated to the Collector by notification No. F4(132)SC/A/58/417 dated January 1, 1962. He placed reliance on Kalu v. State of Rajasthan 1972 RLW 230 and observed that the accused were not entitled to the protection of Section 197 Cr.P.C. As regards the protection of Section 79 of the Rajasthan Panchayat Act, the learned Judge held that it depended on the decision of certain questions of facts which required inquiry and leading of evidence by both the parties. With these observations me learned Additional Sessions Judge set aside the order of discharge and remanded the case to the trial court for holding further inquiry and giving a fresh finding on the point whether Section 79 of the Act is attracted or not. The accused have come up in revision before this Court challenging the order dated March 28, 1973 of the Additional Sessions Judge, Jalore.
5. Mr. M.S. Narain, learned Counsel for the accused, has vehemently urged that the petitioners bad submitted all the documents along with the application dated June 3, 1967 which remained uncontroverted. The resolution and proceedings of the Panchayat were public documents. Mere production of certified copies was sufficient. It was an admitted case of the parties that the Gram Panchayat did not be any sanction to the petitioner to make construction over the disputed plot. He further urged that the learned Judge had misdirected himself to the facts of the case and committed a manifest error of law in remanding the case which led to flagrant miscarriage of justice. There was sufficient material on the record to judge whether the petitioners were entitled to the protection of Section 79 of the Act and whether their prosecution was barred under Section 197 Cr.P.C. or not.
6. I find force in this contention. The application dated June 3, 1967 raising preliminary objection came up for heating on September 21, 1970. During this long lapse of time the complainant neither led any evidence nor produced any document. Both the parties made arguments on the basis of the available record. Even in the revision petition filed by the complainant against the order dated September 25, 1970 passed by the Sub divisional Magistrate, Jalore no grievance was made on this point. On the contrary, in paragraph No. 2 of the revision petition it has been mentioned that the trial court (sic) in placing reliance on the defence viz. the document filed by the accused. I have perused she record and am of the opinion the material produced on record is sufficient to decide whether the accused are entitled to the benefit of Section 97 Cr.P.C. and/or Section 79 of Act.
7. The question for consideration is whether in the facts and circumstances of the case prior sanction of the State Government as envisaged by Section 197 Cr.P.C. was necessary.
8. In order to invoke the protection of fecticn 197 Cr.P.C. an accuser1 is required to prove as follows : (a) that he is a public servant, (b) that he is a public servant of the rank who is removeable only by the State Government or by is sanction, and (c) the offence alleged to have been committed by him was committed while acting or purporting to act in discharge of his official duty. There is no manner of doubt that the Pitch is a public servant. Section 78 of the Act provides that Sarpanch, every Panch and every servent of a Panchayat shall be deemed to be 'public servant' within the meaning of Section 21 of the Indian Penal Code.
9. The act of asking the complainant to remove the encroachment and passing the resolution dated August 22, 1966 as well as removing the encroachment or unauthorised construction are the acts which lie within the administrative power of the Gram Panchayat, I hold that the accused are and were public servants. They were acting or purporting to act in discharge of their duty in faking the no petitioner No. 1 to remove the obstruction or at any rate the unauthorised construction It cannot be said that they were not removable save by or with the fancfion of State Government, because by not fixation No. F4(138)SC/A/58/417 dated January 1, 1962 the State Government bas delegated the powers described in Section 17 of the Act relating to the removal of the Panchas to the Collector of the District. The result of the above discussion is that the accused are not entitled to the protection of Section 197 Cr.P.C.
10. In support of the second contention the learned Counsel for the accused urged that on November 15, 1965 the complainant had submitted an application to the Gram Panchayat, Samdari for the grant of permission of the construction of building on the plot in dispute. On November 29, 1966 he submitted another application to the same effect. The Panchyat demanded the title deed and other documents regarding the ownership of the plot on which the construction was intended to be made, April 18, 1966 was fixed as next date of hearing. During the pendency of the application the complainant started the construction without permission On April 13, 1966, a notice was ordered to he sent to the complainant restraining him from making further construction. The Panchayat initiated proceedings under Section 145 Cr.P.C. as the complainant WES making encroachment on the open 'chowk' inspite of the notice. The learned Sub-divisional Magistrate, Balotra vide his order August 11, 1966 observed that the 'patta' relied upon by the complainant in support of his title and possession on the disputed land was not genuine. He, however, directed the parties to get their rights determined by a competent civil court as the dispute was of civil nature. It was further alleged by the learned Counsel for the accused that or August 11, 1966 the Gram Panchayat bad served a notice on the complainant to remove the encroachment before 12.00 p.m. on August 12, 1066. The complainant refuted to accept the notice. However, in August 12, 1966 the complainant was present in Office, where he was asked in remove the encroachment but be re-used to comply. In such circumstances the Panchayat after examining the available record passed two resolutions. By the first it rejected the application of the complaint for for the grant of permission to construct and imposed a penalty of Rs. 15/-. By the second it authored the removal of the documents. Both these resolutions were passed unanimously. In compliance with the above-mentioned direction dated August 12, 1966, the accused reached the (sic) removed the encroachment, prepared a seizure memo of the construction material as the complainant had refused to take possession of the same.
11. The question for consideration before the Court was not regarding actual encroachment but regarding the relation between the act done and the duty which the Panch. Officers or servant of the Panchayat were required to perform law fully and in good faith. What is to be found out is whether the act and the official duty were so inter related that one is whether the act and the could postulate reasonably that it was done by the accused in performance of the official duty with due care and attention. If there is a reasonable connection between the action taken and the discharge of the duties and the act is done in good faith, the accused are entitled to the protection of Section 79 of the Act. It has there fore, to be determined whether there was any noncompliance with the provisions of the faith. It is true that the provision of Section 79 of the Act should not be also not be forgotten that the legislature in its wisdom granted protection to the persons mentioned in Section 79 of the Act, against reckless or malevolent harassment whose honest discharge of duties may provoke unpleasantness and hostilities.
12. The Act of demolition of the enoroachment lay within the administrative power of the Gram Panchayat vide Section 26(sic) of the Act. Section 24 read with III Schedule, part I (P) of the Act empowers Gram Panchayat to regulate the construction of new buildings and the extension or alteration of existing buildings. In Prabhata v. Additional Collector, Jaipur 1964 RLW 41 Hon'ble Jagat Narayan, J. (as he then was) interpreted the relevant provision of the law and held that 'the new rules however do not contain rules regarding regulations of construction of new buildings and the extension or alteration of existing buildings. In my opinion the intention behind Rule 354(1) is only to repeal rules relating to such matter concerning which new rules have been framed. In this view of the matter Rule 11 of Panchayat (General Rules 1954) is still in force and in granting or refusing permission the Panchayat has to apply its mind to this rule' I am in respectful agreement to the above weightly observations. The Gram Panchayat had the authority to call upon the complainant to remove the encroachemt. The complainant refused to comply with the direction of recove the encroachment and that the Panchas were free to take whatever action they chose. In these circumstances the Panchayat passed the resolutions dated August 12, 1966, copies of which have been placed on the record and the genuineness of which has not been challenged by the complainant at any stage. The Secretary of the Gram Panchayat, its official and the members who went on to the spot to remove the encroachment and demolish the unauthorized construction had gone there in pursuance of the resolution of the Panchayat dated August 12, 1966. The accused were acting under the orders of the Panchayat. The Panchayat after enquiry and placing reliance on a portion of the judgment of the Sub-divisional Magistrate, given in the proceedings under Section 145 Cr.P.C. held that 'patta' relied upon in the by the complainant was not genuine and as such be was a trespasser. The open land formed a part of the public way and the complainant hid made an encroachment on the land in dispute which was being utilised by the villagers to sell food grains, halt of the bullock-carts and for the reception of marriage parties The trial court held that the accused were entitled to the protection of Section 79 of the Act.
13. There is nothing to hold that the Secretary of the Gram Panchayat, the Panchas and the employees of the Panchayat, i.e. the accused did not believe in good faith that the demolition of the unauthorised construction and removal of the enoroachment in compliance of the with the resolution of the Panchayat was a part of their duty. They were all action under the orders of the Panchayat and there was a rational basis for the accused to see that the compliance of the resolution dated August 12, 1996 was mad in time. The initial burden of good faith placed on the accused was discharged by them by producing the certified copies of the proceedings and the reaolutions of the Panchayat along with their application dated June, 3, 1967. A perusal of the seizure memo prepared on August 12, 1966 along with other documents is sufficient to hold that the accused acted lawfully and in good faith, with due carem and so they were entitled to the protection of Section 79 of the Act.
14. For the reasons mentioned above, I accept the revision petition, set aside the order of remand dated March 28, 1973, passed by the learned Additional Sessions Judge, Jalore and uphold the order of discharge passed by the Sub divisional Magistrate, Balotra dated September 25, 1970.