1. In this revision the petitioner has sought to challenge the legality and correctness of the order dated 16-6-1982 passed by the J.M.F.C., Hukkeri, on private complaint No. 15/82, whereby he has dismissed the complaint on the ground that the cognizance of the offence alleged against the accused-respondent could not be taken without sanction of the Government as provided under Section 197. Criminal P.C.
2. The petitioner and the respondent are councillors of the Town Municipal Council. Sankeshwar, in Hukkeri Taluk. The respondent is also a Chairman of a Standing Committee, consisting of eight members. He owns a land bearing Re. S. No. 372 within the municipal limits. He wanted to construct a building on it and he therefore, got prepared a plan and applied to the municipality to permit him to construct the building. The application made by him for permission, in the usual course, was placed before the Standing Committee of which he was himself the Chairman along with other similar applications for consideration. In the meeting held on 16-12-1981, which was attended by four councillors and presided over by the respondent, the applications were considered and the respondent who was personally interested in the application made by him also, it is alleged, participated in the meeting presided over by him and voted for sanctioning the same. When the matter was taken up before the general body meeting on 26-1-1982 attended by twelve councillors including the respondent, it is stated that the respondent in spite of objections raised by the petitioner participated in the proceedings of the meeting and voted for permitting the construction. Thereafter, on 11-6-1982, the petitioner presented a complaint before the Magistrate against the respondent alleging, inter alia, that the respondent having participated in the meeting had succeeded in getting the permission for construction in violation of the provisions in S. 55(1), Karnataka Municipalities Act, 1974, hereinafter referred to as the Act, and he has by this conduct committed the offence punishable under Section 369 of the Act.
3. The learned Magistrate being of the view that cognizance of the offence alleged could not be taken without sanction under Section 197 Cr.P.C., after hearing the counsel appearing for the complainant, having dismissed the complaint by his order dated 16-6-1982, the petitioner who is the complainant has preferred this revision under Section 398, Cr.P.C., questioning the legality and correctness of the order made by the Magistrate.
4. Mr. Deshpande, learned Counsel appearing for the petitioner, did not seek to dispute that as provided under Section 79 of the Act every councillor is a public servant within the meaning of S. 21, Penal Code, and the fact as alleged in the complaint that the respondent was acting in discharge of his official duties as such Chairman of the Standing Committee and Councillor in the meetings held on two relevant dates when the application made by him for permission was placed before the Committee along with other similar applications. He, however, contended that the respondent although a public servant within the meaning of S. 21. I.P.C. was not as such a public servant not removable from his office save by or with the sanction of the Government as provided under Section 197. Cr.P.C., he could as well be removed by the Deputy Commissioner under Section 16(2) of the Act and as such the view taken by the Magistrate that without previous sanction cognizance of the offence as alleged cannot be taken is erroneous and the order passed by the Magistrate dismissing the complaint therefore deserved to be set aside. In support of his contention he strongly placed reliance on the decision of this Court in The State v. B. Chikkavenkatappa, AIR 1965 Mys 253 : (1965 (2) Cri LJ 379).
5. Mr. Suhhash B. Adi, learned Counsel appearing for the respondent, on the other hand, submitted that if the respondent was guilty of misconduct in discharge of his duties having participated in the meeting and voted for sanction of the permission to construct the building and that constituted an offence punishable under Section 369 of the Act, then he could be removed by the Government alone, if it so thinks fit on the recommendation of the Municipal Council as provided under Section 41 of the Act and as such the Magistrate was perfectly justified in not taking cognizance of the offence alleged without previous sanction of the State Government. In support of his contention, he also relied upon certain decisions including the decision in Ladu Ram v. Rameshwar and : AIR1983Guj136 . He also further relied upon the provisions contained in Sections 276, 277 and 330 of the Act and submitted that the Chief Officer of the Municipality alone can, under the direction or order of the municipal council take proceedings for punishment of any person offending against the provisions of the Act or of any rule or bye law made thereunder, make a complaint. Therefore, neither the petitioner was competent to make a complaint nor the Magistrate could take cognizance of any such offence punishable under Section 369 of the Act on his complaint, as such no interference at all in the order made by the Magistrate was called for.
6. Repelling the above contention Mr. Deshpande submitted, any person may set the criminal law in motion and lay information and make a charge unless there is a statutory bar limiting the power of making such complaint or charge to any certain persons. The provisions in S. 276 of the Act at best enable the municipality to prosecute and do not restrict the right to complain to the Municipal Commissioner or Chief Officer of the municipality alone and in support of this contention, he also relied upon the decision of this Court in K. M. Kanavi v. State of Mysore (1965) 1 Mys LJ 242 and in State of Mysore v. Yamanappa Siddappa Arabhavi (1973 (2) Mys LJ 553).
7. In view of these contentions, two questions that arise for decision are (i) whether previous sanction for prosecution as provided under Section 197. Cr.P.C., was necessary and (ii) whether the petitioner can complain and the Magistrate take cognizance of such an offence alleged to have been committed by the accused, on the complaint made by any person.
8. In the case of The State v. Chikkavenkatappa (AIR 1965 Mys 253) : (1965(2) Cri LJ 379) where the accused, the Vice President of the municipal council constituted under the Mysore Town Municipalities Act (22 of 1951), hereinafter referred to as the Mysore Act, had raised similar objection that the Court could not take cognizance of the offence alleged against him without previous sanction of the State Government under Section 197. Cr.P.C., and the Magistrate upholding the objection discharged the accused on the ground that in the absence of previous sanction for prosecution the complaint was not maintainable and on revision the Sessions Judge having held that previous sanction for prosecution was not necessary, the matter came before this Court on a reference made by the Sessions Judge under Section 438. Cr.P.C. (old Cr.P.C.). His Lordship Chandrasekhar J., as he then was, taking into consideration relevant provisions contained in S. 23 of the Mysore Act and following the earlier decision of the Bombay High Court in Vishvamohan v. Mahadu : AIR1964Bom191 held : since the President and Vice-President of a Municipal Council can be removed from their office not only by or with the sanction of the State Government, but also by the Municipal Council itself by passing a resolution of want of confidence and, therefore, they being not public servants not removable from office save by or with the sanction of the State Government, sanction as provided under Section 197, Cr.P.C., for prosecution was not necessary. In reaching that conclusion and interpreting the expression 'remove' as used in S. 23(9) of the Mysore Act. His Lordship observed; the word 'remove' having not been defined, the ordinary meaning of that word had to be taken in interpreting and since according to the concise Oxford Dictionary, one of the meanings of the word 'remove' is 'to take off or away from the place occupied,' such taking away from the office of the President or Vice President may happen by the act of removal by the Government or by the act of the President or the Vice President vacating his office on an appropriate resolution being passed by the Municipal Council. This was also the decision referred to by the Counsel appearing for the complainant before learned Magistrate. But, the learned Magistrate felt that it was not an authority to the facts of the present case wherein he was concerned with a councillor of the Municipality constituted under the Karnataka Municipalities Act.
9. Mr. Subash B. Adi further submitted that since the President or the Vice President of the Municipal Council is elected out of municipal councillors and even if he is removed from his office as such President or Vice President, he still continues to be the councillor and since as provided under Section 41 of the Act the councillor also cannot be removed except by the Government, the sanction for prosecution of the councillor was necessary. This appears to be the view taken by the Rajasthan High Court in the case of Ladu Ram v. Rameshwar, , dissenting from the decision of this Court in the case of The State v. Chikkavenkatappa (AIR 1965 Mys 253) : (1965 (2) Cri LJ 379) and relying upon the earlier decisions of Rajasthan High Court in the cases of Shrilal v. Manmath Kumar Misra and Pukhraj v. Ummaidram . In the last mentioned decision, the meaning of the expression 'removable from service' as employed in S. 197, Cr.P.C., came for consideration and it was held as follows :
'There is no reason to construe the word 'removal' in a different manner in S. 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.'
Similar appears to be the view taken by the Gujarat High Court in the case of Chimanbhai v. Jashbai : AIR1961Guj57 .
10. It appears, this question requires to be considered having regard to the provisions contained in the Karnataka. Municipalities Act and here it would be necessary to refer to the relevant provisions of the Act.
10(a). The relevant provision in sub-section (2) of S. 16 of the Act reads as follows :
2) If any councillor during the term for which he has been elected or appointed - (a) .............
(b) votes or takes part as a councillor in the discussion of any matter -
(i) in which he has directly, or indirectly, by himself, or his partner, any such share or interest as is described in sub-clause (i), (ii), (iii) or (v) of Clause (d) of the proviso to Sub-section (1) whatever may be the value of such share or interest, or
ii) ... ... ... iii) ... ... ... c) ... ... ...
the Deputy Commissioner either suo motu or on a report made to him and after such inquiry as he deems fit, shall declare the seat of the person concerned to have become vacant.
10(b). The provisions of S. 41 as amended by Act 83/76 reads as follows :
'41 Liability to Removal from Office. - (1) The Government, if it thinks fit on the recommendation of the municipal council may remove any councillor elected or appointed under this Act, and after such enquiry as it deems necessary, if such councillor 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 councillor :
Provided that no Councillor shall be removed except after being afforded an opportunity for submitting an explanation.
(2) When under sub-section (1) of S. 42 any person is removed from the office of president or vice president for misconduct in the discharge of his duties, he shall, from the date of such removal, cease to be a councillor and shall be deemed to have been removed from the office of councillor under sub-section (1).'
10(c). Section 55(1) of the Act reads as follows :
'No councillor shall vote at a meeting of the municipal council or of any committee thereof on any question relating to his own conduct or vote or take part in any discussion on any matter (other than a matter affecting generally the residents of the town or city or of any particular division.), which affects his pecuniary interest or any property in respect of which he is directly or indirectly interested or any property of or for which he is a manager or agent.'
10(d). The violation of these provisions of sub-section (1) of S. 55 of the Act is made punishable under Section 369, which reads as follows :
'Whoever votes at any meeting of a municipal council or any committee thereof in contravention of the provisions of sub-section (1) of S. 55, shall be punished with fine which may extend to five hundred rupees.'
11. From a reading of these provisions together it becomes clear that while the provisions contained in sub-section (1) of S. 55 of the Act operate as a bar against the councillor voting at a meeting of the municipal council or of any committee thereof on any question relating to his own conduct or taking part in any discussion on any matter affecting his pecuniary interest or any property in respect of which he is directly or indirectly interested or any property of or for which he is a manager or agent, the councillor violating the said provisions under sub-section (1) of S. 55 of the Act not only makes himself liable for being punished under Section 369 of the Act : but such councillor also disqualifies himself to hold the office as councillor because of his participating in the discussion in a matter in which he is directly or indirectly interested and it is also competent for the Deputy Commissioner either suo motu or on a report made to him and after such enquiry, as he deems fit, to declare the seat of the person concerned (i.e. the councillor concerned) to have become vacant. Such an act on the part of the councillor also being a misconduct, as provided under Section 41 of the Act, he becomes liable for removal from his office as the councillor by the Government. While under Section 41 of the Act, the Government may remove the councillor elected or appointed under the Act on the recommendation of the municipal council so to do, after giving him an opportunity of being heard, under sub-section (2) of S. 16 it is competent for the Deputy Commissioner even without any report or recommendation of the municipal council to act suo motu and to declare the seat of the person concerned to have become vacant after such enquiry as he deems fit. When the seat of such councillor is declared vacant, the councillor stands removed from his office; because when a seat of such councillor is declared vacant, on the councillor becoming disqualified, the vacancy has to be filled up as soon as may be by election of a person thereto, as provided under Section 19 of the Act. In other words a councillor of the municipal council can either be removed from his office by the Deputy Commissioner or by the Government. It, therefore, follows that a municipal councillor is not such a public servant who is not removable from his office save by or with the sanction of the State Government. As such no previous sanction as provided under Section 197 Cr.P.C. is necessary for prosecution of a councillor of the municipal council constituted under the Karnataka Municipalities Act, 1964. Therefore, the decisions in Shrilal v. Manmath Kumar Misra (1960 Cri LJ 996) (Raj) and Chimanbhai v. Jashbhai (1961 (1) Cri LJ 499) (Guj), cited supra, have no application to the case of a municipal councillor of the municipal council constituted under the Karnataka Municipalities Act, 1964.
12. Coming to the other contention, no doubt S. 276 of the Act provides that the municipal council may direct any prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties and for the punishment of any person offending against the provisions of the Act; or of any rule or bye-law made thereunder and that no prosecution for an offence under the Act or rule or bye-law shall be instituted, except within six months next after the date of the commission of such offence, or the date on which the commission or existence of such offence was first brought to the notice of the Municipal Commissioner or Chief Officer and the provisions contained in S. 277 of the Act empower the municipal council to compound offences which may by rules made by the Government he declared compoundable and where an offence is compounded the offender shall be discharged and no further proceedings shall be taken against him in respect of the offence so compounded. But there is nothing either in S. 276 or S. 277 of the Act or in S. 330 which operates as a bar against a Magistrate of the First Class taking cognizance of the offence committed by a councillor or by any other person offending against the provisions of the Act. However, there is no provision in the Act which says that the Chief Officer or Municipal Commissioner alone would be competent to make complaint against the person offending against the provisions of the Act. On the other hand as provided in S. 330 of the Act, the power conferred by S. 276 to direct prosecution or to order proceedings to be taken for the punishment against any person offending against the provisions of S. 241 of the Act by a councillor shall not be exercised by the Chief Officer, except with the previous approval of the Deputy Commissioner. Although, the municipal council may compromise with any person who has committed an offence punishable under the Act and compound any offence against the provisions of the Act, as provided under Section 277, and, where such offence is compounded the offender shall be discharged, but this is not to say that a Magistrate of the First Class cannot take cognizance of the offence on the complaint made to him of the facts disclosing the commission of such offence, offending the provisions of the Act, in the absence of any statutory bar against such taking cognizance of the offence disclosed on the complaint made to the Magistrate; because it is competent for a Magistrate of the First Class, as provided under Section 190 Criminal P.C., to take cognizance of any offence upon receiving a complaint of facts which constitute such offence, except in those exceptional cases coming within the provisions of Sections 195 to 199. Cr.P.C. Here, the offence complained of not being any of the offences coming within the purview of Sections 195 to 199. Cr.P.C., it appears, there is not bar in the Magistrate taking cognizance of the offence alleged on the complaint made to him by the petitioner. The expressions 'the municipal council may direct any prosecution' and 'may order proceedings to be taken .............. for the punishment of any person' as used in S. 276 of the Act, as rightly pointed out by Mr. Deshpande, go to show that they are merely enabling provisions authorising the municipal council to direct prosecution and not restricting the power of making any such complaint to the Municipal Commissioner or Chief Officer. This is also the view taken by this Court in the case of K. M. Kanavi v. State of Mysore (1965 (1) Mys LJ 242) while interpreting similar expression 'may direct' used in S. 200(1) Bombay Municipal Boroughs Act, 1925. In the case of State of Mysore v. Yamanappa Siddappa Arabhavi (1973-2 Mys. LJ 553), where the Magistrate had taken cognizance of the offence punishable under Sections 12 and 13. Press and Registration of Books Act (25 of 1867) on the complaint of one Yamunappa Siddappa Arabhavi, the President of the Mazdoor Sangh and it was urged by the counsel appearing for the accused that no person can complain of an offence in which he has no interest and the State alone which is generally charged with the enforcement of the penal provisions could make a complaint, this Court held : as a general rule, any person, having knowledge of commission of an offence, may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. That is in consonance with the law as contained in S. 190. Cr.P.C. Therefore, there is no bar against the Magistrate taking cognizance of the offence disclosed from the facts stated in the private complaint lodged by the petitioner.
In the result and for the reasons stated above, the revision is entitled to succeed. The revision is accordingly allowed. The order under revision passed by the Magistrate is set aside. The complaint is remitted back to the J.M.F.C. Hukeri, with a direction to dispose of the complaint in accordance with law.
However, it is made clear that it is entirely within the discretion and powers of the Magistrate to take cognizance of the offence alleged, if the allegations made in the complaint disclose commission of such offence having regard to the provisions contained in S. 55(1) and (2) of the Act.
13. Revision allowed.