1. This is a reference under Section 438, Criminal P.C., made by the learned Additional Sessions Judge of 24-Parganas and it involves a short point of law. The petitioner is a Commissioner of the Baragore Municipality and he was elected as Vice-Chairman. The prosecution case is that taking advantage of his position as such, he abetted the other accused in cheating the Municipality. The point raised on behalf of the petitioner is that he cannot be prosecuted without the sanction of the local Government in view of the provisions of Section 197, Criminal P.C. The reference has been opposed on behalf of the Crown and the contention of the learned Deputy Legal Remembrancer is that inasmuch as the petitioner can 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 has no application to the proceedings. 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 be 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. This point came up for consideration in connexion with another matter in Nur Ahammad v. Jogesh Chandra Sen : AIR1934Cal838 . The reasoning on which that decision was based applies to the facts of the present case and we respectfully agree with it. We accordingly accept the reference and direct that the proceedings pending against the petitioner be quashed. If it is desired to take further proceedings against him, the sanction of the local Government must be obtained.
2. I agree.