Kurda Ram vs Yad Ram and another

Harbans Singh Rai, J.—Kurda Ram Petitioner filed a complaint in the Court of Judicial Magistrate 1st Class, Mahendergarh, against Yad Ram and Lala Ram under sections 420/409/465/471, I.P.C. The learned Judicial Magistrate vide his order dated February 16, 1987, charge-sheeted Yad Ram and Lala Ram under sections 465/467/471, I.P.C. Yad Ram and Lala Ram feeling aggrieved filed revision in the Court of Sessions Judge at Narnaul. Shri N.S. Ahlawat, Additional Sessions Judge, Narnaul, accepted the revision and set aside the order of framing of Charge-sheet passed by the learned Judicial Magistrate and discharged the petitioners i.e. Yad Ram and Lala Ram (respondents in the present Crl Misc.). Feeling aggrieved against the order of discharge, the petitioner has filed this petition u/s 482, Criminal Procedure Code.

The learned Additional Sessions Judge while discharging the accused i.e. Yad Ram and Lala Ram, had given benefit to Yad Ram saying that as he had acted as a Sarpanch and no sanction had been obtained as required u/s 197, Criminal Procedure Code, he could not be tried while discharging Lala Ram, the Court only observed that his participation is not proved towards the committal of offence which is the subject-matter of Charge-sheet.

Section 197 Cr. P.C. reads as under:

Prosecution of Judges and Public servants.-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting 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 who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving", and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

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

A reading of section 197, Criminal Procedure Code, makes it clear that this section will apply to a public servant who is removable by State Government only. The authority to remove must vest solely and exclusively in the Government and in no other authority. If a public servant is removable by more than one authority i.e. one of them being Government and another some other authority, then this section will not apply Section 197, Criminal Procedure Code, lays down that the Court is not to take cognizance of an offence unless sanction for prosecution grantable by the State Government alone has been accorded. In other words, the condition precedent of sanction of prosecution of a public servant is necessary only if the power of his removable is exercisable by the solitary authority of the Government and by no other authority.

The provisions of law relating to removal of a Sarpanch are given in sections 9 and 102 of the Punjab Gram Panchayat Act, 1952, as applicable to Haryana. Section 9 of the said Act reads as under:

(1) Before entering upon the duties of their office, the Sarpanch and Panches shall take an oath in the form specified in Schedule IV.

(2) The Sarpanch and Panches shall hold office for a period of three years:

Provided that, after the first general election of Chairman and members of executive committees of the Sabhas, and cooption of members of such committees, held and made or deemed to be held and made u/s 95-A, the Sarpanches and Panches shall hold office for a period of five years;

Provided further that an outgoing Panch shall, unless the Government otherwise directs, continue to hold his office, until his successor has taken the oath;

Provided further that subject to the approval of the Director, the Sarpanch or a Panch may be removed from his office by a two thirds majority of the votes of the members of the sabha at its extraordinary general meeting held with the previous permission of the Director.

According to third proviso appended to sub-section (2) of section 9, a Sarpanch may be removed from his office by a resolution passed by two-third majority of the votes of the members of the Panchayat at its extraordinary general meeting held with the previous permission of the Director and the Director having accorded approval of the resolution pertaining to that removal:-

The relevant provision of sub-section (2) of section 102 of the Puajab Gram Panchayat Act, 1952, as applicable to Haryana, runs as under:

Government may, after such enquiry at it may deem fit, remove any Panch-

(a) on any of the grounds mentioned in sub-section (5) of section 6.

Sub-section (5) of section 6 prescribes the following grounds:

(a) is not qualified to be elected as a member of the Legislative Assembly; or

(b) has been convicted of any offence involving moral turpitude unless a period of five years has elapsed since his conviction; or

(c) has been subjected to an order by a criminal Court and which order in the opinion of Government or of the officer to whom Government has delegated its powers of removal, implies a defect of character unfitting him to be a Sarpanch or Panch, unless a period of five years has elapsed since the date of order; or

(d) has been convicted of an election offered; or

(e) has been ordered to give security for good behaviour u/s 110 of the Code of Criminal Procedure, 1898, or

(f) has been notified as disqualified for appointment in public service, except on medical grounds; or

(g) is a whole-time salaried servant of any local authority or State or the Union of India; or

(h) is registered as a habitual offender under the Punjab Habitual Offenders (Control and Reforms) Act, 1952; or

(i) is an undischarge insolvent; or

(j) has not paid the arrears of the tax imposed by the Gram Panchayat; or

(k) is an employee of Sabha or Gram Panchayat; or

(l) is a tenant or lessee holding a tenancy or lease under the Gram Sabha or is in arrears of rent of any lease or tenancy held under the Gram Sabha, or is a contractor of the Gram Sabha;

A perusal of sections 9 and 102 of the said Act makes it clear that a Sarpanch is not removable by State Government alone, but can be removed by a resolution as envisaged in section 9. If the Sarpanch is not removable by State Government alone then provisions of section 197, Criminal Procedure Code, will not be attracted.

As a Sarpanch is not protected by the provisions of section 197, Criminal Procedure Code, the order passed by Additional Sessions Judge in revision is not justified. The same is set aside.

The learned Additional Sessions Judge gave benefit of absence of sanction u/s 197 Criminal Procedure Code, to Yad Ram and while dealing with Lala Ram passed only one line order for discharging him. The order reads:

-----whereas on the basis of evidence as referred to by complainant''s counsel and on the perusal of statements of P.Ws. I am convinced that prima facie no participation of the petitioner No. 2 i.e. Lala Ram is proved towards the committal of the offence which are subject matter of the charge-sheet. Resultantly, the impugned order is liable to be quashed.

The learned trial Court had passed a well reasoned order in coming to the conclusion that a prima facie case is made out against Lala Ram. The revisional Court could only upset the same if it had found that the appraisal of the evidence by the trial Court and the reasons given by it are not sound. The learned Additional Sessions Judge has not appraised the evidence and has upset the order of the trial Court without any justification.

As a result of above discussion, I set aside the order of the Additional Sessions Judge dated August 10, 1987, whereby he had discharged the respondents and restore the order of the trial Magistrate whereby he had ordered that a charge u/s 465/467/471, I.P.C. is made out. This petition is disposed of accordingly.