Lakshmi Narain vs Mohan Lal

K.P.S. Sandhu, J.

Lakshmi Narain has filed this petition under section 482 of the Code of Criminal Procedure praying therein that the order of the Sub Divisional Judicial Magistrate, Fazilka, dated 29th March, 1984, be quashed.

The facts which gave rise to this petition are that the petitioner in his capacity as President of the Municipal Committee, Fazilka, on the basis of a resolution passed by the Committee, lodged a first information report u/Ss. 452, 353, 506, and 323 read with section 34 of the Indian Penal Code at Police Station, Fazilka, on 27th September, 1981, against the respondent and some other persons. The respondent and his coaccused were challenged but the case was withdrawn by the State. The respondent then filed a complaint against the petitioner under section 500 of the Indian Penal Code. Before the trial Magistrate summoned the petitioner, he appeared before the trial Magistrate and raised an objection that since he filed the complaint against the respondent in his capacity as a public servant he could not be prosecuted unless sanction of the State Government for his prosecution was obtained as required under section 197 of the Code of Criminal Procedure. The learned Magistrate vide his impugned order came to a finding that the petitioner was not a public servant.

Mr. S.C. Khunger, learned counsel for the respondent has very fairly conceded that the petitioner is a public servant as defined in section 19 of the Punjab Municipal Act read with section 21 of the Indian Penal Code. However, he has contended that for attracting the provisions of section 197 of the Code of Criminal Procedure the condition of twofold one, that the person to be proceeded against should be a public servant and must have acted while performing his duties as a public servant and, two, that he as a public servant should be removable by the State Government only. He contends that the petitioner is removable not only by the State Government but also by a resolution of the municipal committee. He has relied upon Vishvamohan Raghuviraprasad Tiwari v. Mahadu Chaudhari AIR 1964 Bombay 191, and State of Mysore v. B. Chikkaven Katappa and another, AIR 1965 Mysore 253 wherein it has been held that if a person is also removable otherwise than by the State Government then the provisions of section 197 of the Code of Criminal Procedure are not attracted.

On the other hand, Mr. Ashwani Chopra, has relied upon section 22 of the Punjab Municipal Act as amended uptodate. Under section 22 of the Punjab Municipal Act the President and the VicePresident of a Municipal Committee can only be removed by the State Government, but the proviso added thereto by the amendment which was effected in the year 1982 lays down that if a resolution requesting the removal of the President or the Vice President is passed by twothirds of the members of the Committee the President or the VicePresident as the case may be, shall be deemed to be under suspension immediately after such resolution is passed. It is clear that, in spite of the amendment, the removal of the President or the VicePresident has to be with the sanction of the Government. The provision under section 22 of the Punjab Municipal Act is different from the municipal laws of Bombay and Mysore where the President stands automatically removed on the basis of a resolution passed by a majority of the members of the committee. Obviously, the learned Magistrate could not take cognizance and proceed against the petitioner without the express sanction of the Government as required under section 197 of the Code of Criminal Procedure. Consequently the petition is allowed and the impugned order of the learned Magistrate is quashed.