Citation Codes

Equivalent Citations

citation codes

Case Number

D.B Criminal Revision No. 56 of 1962

Attorney(S)

G.M Lodha, for Petitioner;
Makhtooral, for Non-petitioner

Judges

Mr. D.M. Bhandari

Acts

Indian Penal Code by virtue of Section 78 of the Rajasthan Panchayat Act.
election.7. Section 78 of the Rajasthan Panchayat Act
provisions of the Rajasthan Panchayat Act, 1953.
section 79 of the Rajasthan Panchayat Act, 1953.
sec. 79 of the Rajasthan Panchayat Act.
section 21 of the Indian Penal
provisions of sub-clauses 1, 2
Section 197 Cr. P.C

See more information ...

Smart Summary

Judgment Summary — Bhandari, J.

Factual and Procedural Background

The complainant, Pukhraj, filed a criminal complaint against Ummaidram and six others alleging that on 12 February 1958 between 9 and 10 A.M. they demolished a chabutri and a latrine located on land claimed by the complainant, causing loss of Rs. 300. The complaint sought prosecution under Sections 451, 427 and 147 IPC. Ummaidram pleaded that he acted as Sarpanch of the Gram Panchayat, Bilara, directing removal of an encroachment in good faith.

The trial magistrate discharged the accused, holding that no prima facie case was made out because Ummaidram, acting as Sarpanch, was discharging his duty in widening the street and that, in view of section 79 of the Rajasthan Panchayat Act, 1953, no offence was made out. The other accused were treated as labourers acting under Ummaidram’s directions.

Pukhraj filed a revision against the acquittal to the Additional Sessions Judge No. 2, Jodhpur. The Additional Sessions Judge dismissed the revision, holding that Ummaidram, being a Sarpanch who could not be removed except by or with the sanction of the State Government, was entitled to protection under Section 197 Cr.P.C. The complainant then filed a revision in this Court. A Single Judge of this Court referred the matter to a larger Bench because of a divergence of judicial opinion in the Court on whether a Sarpanch is removable only by or with the sanction of the State Government.

Legal Issues Presented

Whether a Sarpanch, being an elected holder of village office, is a "public servant" for purposes of criminal law and thereby falls within the ambit of Section 197 Cr.P.C.
Whether Section 197 Cr.P.C. (which grants protection to persons removable from their office only by or with the sanction of the State Government or Central Government) applies to an elected Sarpanch who is not ordinarily an employee of the State Government but carries out public functions.
What is the correct meaning of the word "removable" in Section 197 Cr.P.C. when applied to persons holding public office (including elected representatives) — i.e., whether it denotes termination only by a superior authority forcing vacation of office rather than automatic cessation or resignation.
Whether, in the facts of this case, the complaint against Ummaidram could be taken cognizance of without prior sanction of the State Government.

Arguments of the Parties

Complainant's Arguments (as noted in the opinion)

Ummaidram, though holding public office as Sarpanch by election, is not a public servant "employed in connection with the affairs of the State" and therefore Section 197 Cr.P.C. should not apply to him.
Section 197 Cr.P.C. is meant to protect government servants in employment and should be limited in application to persons in State employment, not to elected representatives who are not State employees.

Accused/Ummaidram's Plea (as noted in the opinion)

Ummaidram contended he was acting in his capacity as Sarpanch, directing removal of an encroachment in good faith for public purposes (widening the street), and thus his acts were performed in an official capacity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chauth Mal v. Panna Lal (Bapna, J.)	The Commissioner was not exclusively subject to removal by the Provincial Government; in that situation Section 197 Cr.P.C. did not apply.	Noted as an authority taking the view that where removal power is not exclusively with the Government, Section 197 does not apply; cited as part of the divergence of opinion.
Kaly v. Pyara (Jagat Narayan, J.)	Held that a Panch was not removable only with the sanction of the State Government and therefore did not enjoy protection under Section 197 Cr.P.C.	Recorded as another decision in the Court's jurisprudence that argues against application of Section 197 to local elected functionaries.
Mohan Lal v. The State (Modi, J.)	Held that a Sarpanch was a public servant and not removable except by or with the sanction of the State Government; therefore protected by Section 197 Cr.P.C.	Cited as an authority supporting the proposition that a Sarpanch falls within Section 197 protection.
Bhagwati Lal v. Bhanwer Lal (Chhangani, J.)	Held that Panch, Sarpanch or Up-Sarpanch is a public servant not removable except by or with the consent of the State Government and thus entitled to Section 197 protection.	Cited as another supporting authority for protection of Panchayat office-holders under Section 197.
Satish Chandra Anand v. The Union of India; Khemchand v. Union of India; Parshotam Lal Dhingra v. Union of India	Authorities on the construction of the word "removal" in the context of Article 311 of the Constitution and related civil service jurisprudence (i.e., narrow/technical meaning of removal as termination by a superior authority).	The Court relied on these authorities to justify construing "removal" in Section 197 Cr.P.C. in a technical sense (termination by a superior authority) rather than a loose sense.

Court's Reasoning and Analysis

The Court proceeded in a stepwise manner:

Statutory status of the Sarpanch: The Court noted Section 78 of the Rajasthan Panchayat Act, 1953, which provides that the Sarpanch, every Panch and every officer and servant of a Panchayat shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. Because Section 4 of the Criminal Procedure Code imports definitions from the Indian Penal Code, the Court concluded that the term "public servant" in Section 197 Cr.P.C. can be construed to include a Sarpanch who is so deemed under the Rajasthan Panchayat Act. The Court emphasized that the law has declared a Sarpanch to be a public servant.
On whether Section 197 applies to elected office-holders: The Court rejected a narrow reading that Section 197 applies only to State employees in the classical sense. It observed that elected representatives perform functions that connect with the affairs of the State and that the language of Section 197 is wide enough to cover elected persons discharging executive functions.
Meaning of "removable" in Section 197 Cr.P.C.: The Court undertook a focused examination of the Rajasthan Panchayat Act's removal provisions (particularly Section 17 and Section 73 and the no-confidence procedure under Section 19). It explained that "removable" in Section 197 must be read in a technical sense — meaning termination of office by a superior authority forcing the incumbent to vacate the office (for causes such as misconduct) — not termination by force of law (e.g., automatic vacancy), resignation, or other modes. The Court relied on precedent concerning Article 311 and civil service rules to support this narrow construction.
Application to the statutory scheme: The Court analyzed Section 17 of the Rajasthan Panchayat Act which provides for vacation and removal. Section 17(4) specifically gives the State Government the power to remove a Panch, Sarpanch or Up-Sarpanch after inquiry and opportunity of hearing. While the Act also contained other provisions that could cause a Sarpanch to cease to hold office (for example, vacation by operation of law under sub-clauses (1)–(3), removal upon no-confidence under Section 19, or supersession/dissolution under Section 73), the Court observed that these do not negate that the specific power of removal for misconduct or incapacity is vested in the State Government (and may be delegated only if so provided). In the present case, no such delegation had been made.
Conclusion of analysis: Given that the power to remove for misconduct or similar causes is vested in the State Government under Section 17(4), and given the statutory deeming of the Sarpanch as a public servant, the Court concluded that the Sarpanch is "removable" only by or with the sanction of the State Government within the meaning of Section 197 Cr.P.C. Consequently, the complaint against Ummaidram could not be proceeded with without the prior sanction of the State Government.
Ancillary points: The Court declined to decide a point raised late by the complainant — that Ummaidram had ceased to be Sarpanch due to a fresh election before the trial court — because the issue was not argued before the Additional Sessions Judge and there was no material on record to determine the date on which Ummaidram ceased to hold office. The Court also noted that other accused were acting under the orders of Ummaidram and therefore no case lay against them.
On Section 79 of the Rajasthan Panchayat Act: The Court expressly stated it would not express any opinion on whether Ummaidram was protected by Section 79. It did, however, record that the trial court had found that Ummaidram acted in public interest (widening the road), that he may have believed demolition was necessary for the road to be 14 ft. wide, and that other similar demolitions had been ordered. The trial court had found no mala fide; the present Court saw no reason to interfere with the discharge.

Holding and Implications

Holding: The Court concluded that, for the purposes of Section 197 Cr.P.C., a Sarpanch who is deemed to be a public servant by the Rajasthan Panchayat Act is a person "removable" only by or with the sanction of the State Government in the technical sense used in civil service jurisprudence. As a result, the Court held that the complaint against Ummaidram could not be proceeded with in the absence of prior sanction of the State Government.

Revision petition dismissed.

Direct consequences for the parties

Ummaidram: The order of discharge passed in the trial court is upheld; he cannot be prosecuted in the absence of the prior sanction of the State Government.
Other accused (labourers): The discharges against them were not disturbed because they were acting under the orders of Ummaidram.

Broader implications: The opinion addresses the construction and scope of Section 197 Cr.P.C. in relation to elected Panchayat functionaries and resolves a point of divergence in the Court's prior decisions by adopting a technical meaning of "removal." The opinion does not expressly state that it is establishing a new precedent beyond the disposition of the present revision; the decision's direct legal effect is confined to the parties and the legal conclusions articulated above.

Show full summary ...

Pukhraj v. Ummaidram

Bhandari, J.:— This case has been referred by a Single Judge of this Court to a larger Bench as there is a divergence of judicial opinion in this Court on the point whether a Sarpanch of a Gram Panchayat is or is not removable from his office save by or with the sanction of the State Government.

2. The complainant Pukhraj had filed a complaint against Ummaidram and six others alleging that they had demolished the chabutri and the latrine over it on 12th of February 1958 between 9 and 10 A.M and that the chabutri was on the land belonging to the complainant and the demolition of the chabutri and latrine had caused to the complainant the loss of Rs. 300/-. The complaint was for prosecuting the accused under Sections 451, 427 and 147 IPC. Ummaidram accused took the plea that he was acting as Sarpanch of the Gram Panchayat, Bilara, and he had directed the removal of the encroachment in that capacity in good faith. The trial magistrate discharged the accused. In his opinion no prima facie case was made out as Ummaidram acting as Sarpanch was discharging his duty as Sarpanch in widening the street. The learned magistrate further held that in view of section 79 of the Rajasthan Panchayat Act, 1953. He had not committed any offence. He also held that the other accused were labourers and were acting under the instructions of Ummaidram and were not liable for any offence.

3. A revision application was filed by Pukhraj against the accused in the court of the Additional Sessions Judge No. 2, Jodhpur. The learned Additional Sessions Judge held that as Ummaid Ram was a Sarpanch who could not be removed except by or with the consent of the State Government, he was entitled to the protection under Section 197 Cr. P.C The revision application was dismissed by the learned Additional Sessions Judge.

4. The complainant filed a revision application in this Court challenging the order passed by the Additional Sessions Judge No. 2.

5. Before we notice the divergence of judicial opinion on the point noted above we think it proper to decide certain other points raised by the learned counsel for the applicant before us.

6. The first point raised is that Ummaid Ram Sarpanch was holding a public office as a result of his election as a Sarpanch and he could not be said to be a public servant employed in connection with the affairs of the State. The argument is that Section 197 Cr. P.C, is meant to apply to a Government servant and not to an elected person holding office by virtue of his election.

7. Section 78 of the Rajasthan Panchayat Act says that—

“The Sarpanch, every Panch, every officer and servant of a Panchayat shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code.”

Thus, so far as the applicability of the provisions of the Indian Penal Code is concerned, a Sarpanch is a public servant. Public servant has not been defined in the Criminal Procedure Code but it is provided in Section 4 that all words and expressions used in the Criminal Procedure Code and defined in the Indian Penal Code shall be deemed to have meanings respectively attributed to them by that Code. We shall not be travelling beyond permissible limits if we construe the words ‘public servant’ in Section 197 Cr. P.C as including a Sarpanch who is deemed to be a public servant under the Indian Penal Code by virtue of Section 78 of the Rajasthan Panchayat Act. We cannot forget that the law has made Sarpanch a public servant.

8. Next it is argued that the Sarpanch cannot be said to be in the employment of the State Government, and as such, Section 197 Cr. P.C is not applicable. It is argued that Section 197 Cr. P.C should be limited in its application to such Government servants who are in the employment of the State Government. In this connection it is pointed out that Section 197 deals with cases only of persons employed in connection with the affairs of the Union or affairs of a State and no other. The word ‘employed’ in connection with the affairs of the Union or of a State carries the sense of being engaged or occupied in connection with the affairs of the Union or of a State. With the march of democracy some functions which formerly used to be performed by the servants of the State began to be performed by the elected representatives of the people. These elected representatives if they are authorised to perform any duties or functions in connection with the affairs of the Union or of a State must be deemed to be persons employed in connection with the affairs of the Union or of a State. Originally, Section 197 might have been enacted for the purpose of affording protection to Government servants, but the language of the section is wide enough to cover a case of an elected person discharging executive functions.

9. Now we proceed to notice the divergence of judicial opinion in this Court which led the learned Single Judge to refer it to a Bench. We refer to the decisions of this Court bearing on this point.

10. In Chauth Mal v. Panna Lal (1), Bapna, J. took the view that—

“Although the Commissioner is only empowered to remove any member of the Board in certain circumstances, the power of dismissal is not exclusively to be exercised by the Provincial Government”

and in such a case Section 197 Cr. P.C did not apply.

11. In Kaly v. Pyara (2) Jagat Narayan, J. held that a Panch was not a Judge nor was a public servant removable from the office only with the sanction of the State Government and he did not enjoy the protection of Section 197 Cr. P.C

12. In Mohan Lal v. The State(3), Modi, J. held that Sarpanch was a public servant and was not removable except by or with the sanction of the State Government and enjoyed the protection of Section 197 Cr. P.C

13. The last case is Bhagwati Lal v. Bhanwer Lal(4) in which Chhangani, J. held that Punch, Sarpanch or Upsarpanch is a public servant not removable except by or with the consent of the State Government and consequently entitled to protection under Section 197 Cr. P.C

14. Before we give our views on the point, it is necessary to examine the provisions of the Rajasthan Panchayat Act, 1953. That Act was enacted for the purpose of establishing village panchayats in rural areas and for village administration and development. After making provision for development and constitution of panchayats in section 3, it is provided in Section 4 that a Panchayat shall consist of a Sarpanch and such number of Panchas, not being less than 5 or more than 15, as the State Government may think fit. The Panchas and Sarpanch come in existence by a process of election. They continue to hold office till the date of the first meeting of next Panchayat constituted as a result of periodical election. There is provision in sec. 8 for appointment of Panchas on failure to elect them. There is also provision for co-option of Panchas. Sec. 17 of the Rajasthan Panchyat Act contains provision for vacation of office by and removal of Panchas. These provisions are important, and relevant part of sec. 17 is quoted below:—

17. Vacation of seats by and removal of Panchas—

(1)(a) If any Panch, Sarpanch or Up-Sarpanch, who is not qualified for election or appointment as such under this Act, has been elected or appointed to a Panchyat,

(b) If any panch, Sarpanch or Up-Sarpanch after having been elected or appointed as aforesaid becomes disqualified during the term of his office for such election or appointment, his seat shall be declared by the State Government, after giving him an opportunity of being heard, to have become vacant.

(2) If any Panch, Sarpanch or Up-Sarpanch during the term of his office, absents himself from five consecutive meetings of the Panchayat without giving information in writing to the Panchayat he shall cease to be such Panch, Sarpanch or Up-Sarpanch and his seat shall become vacant.

(3) If any Panch or Sarpanch fails to make the prescribed oath or affirmation of his office within three months from the date of notification under sec. 14, his seat shall be declared by the State Government to have become vacant.

(4) The State Government may, by order in writing and after giving him an opportunity of being heard and making such inquiry as may be deemed necessary, remove any Panch, Sarpanch, or Up-Sarpanch who—

(a) refuses to act or becomes incapable of acting as such, or

(b) in the opinion of the State Government, has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct:

Provided that any such inquiry as is referred to in this sub-section may be initiated even after the expiry of the term of a Panchayat or, if already initiated before such expiry, may be continued thereafter and in any such case the State Government shall, by order in writing, only record its findings on the charges levelled against a Panch, Sarpanch or Up-Sarpanch of the Panchayat during its term of office.

By carefully looking to the provisions of sub-clauses 1, 2 and 3, it is clear that under certain circumstances a Panch or a Sarpanch or even an up-Sarpanch ceases to be a Panch, Sarpanch or Up-Sarpanch as the case may be and his seat becomes vacant. In sub-sec. 4 provision is made for the removal of Panch, Sarpanch and Up-Sarpanch and this sub-section clearly mentions that it is the State Government which is to exercise the power of removing the Panch, Sar-Panch or Up-Sarpanch. No doubt under the Act it can delegate this power to some other officer or authority subordinate to it. Unless so delegated it is only the State Government which must exercise the power of removing a Panch, Sarpanch or Up-Sarpanch. In this case, it is not in dispute that such power was not delegated till the decision of the trial court. There is only one other provision which may result in the removal of Sar-Panch and Panchas and that provision is sec. 73 which provides that the State Government may by order published in the official gazette dissolve or supersede the Panchayat.

16. We may also notice sec. 19 of the Act which makes provision for the vacation of an office of Panch or Up-Sarpanch on a no-confidence notion moved and carried on in accordance with the provisions of sec. 19 and it is further provided that if the Sarpanch or Up-Sarpanch as the case may be against whom a motion of no-confidence has been moved, does not resign his office within the period mentioned in sec. 19 he shall be removed from his office by the officer-in-charge of Panchayats.

17. The argument that is canvassed before us is that a Sarpanch is liable to be removed in a number of ways and it is only under sec. 17(4) or sec. 73 that the State Government takes action for removal and in other cases the removal is caused by force of law or on action taken by the authorities subordinate to the State Government and thus it cannot be said that the State Government is the only authority which can only remove a Sarpanch. This leads us at once to consider; What is meant by removal under sec. 197, Cr. P.C Sec. 197 grants the protection to the public servants but such a public servant must be one removable from his office only by or with the sanction of the State Government or the Central Government. The very word ‘removable’ signifies that the termination of the employment of the public servant must not come to an end automatically by force of law nor must it come to an end because he has resigned. It must come to an end on some superior authority forcing him to vacate the office. Usually in the case of Government Servant, this is done on account of misconduct and certain safeguards are provided under Art. 311 of the Constitution by placing restrictions on the removal of a Government servant. It is in this technical sense that the word should be construed in sec. 197 Cr. P.C and not in any other sense. It is to be construed in the sense in which it is used in the Civil Services (Classification, Control and Appeal) Rules. There is ample authority for the proposition that under Art. 311, it is to be so construed. See — Satish Chandra Anand v. The Union of India(5) Khemchand v. Union of India(6), Parshotam Lal Dhingra v. Union Of India(7) There is no reason to construe the word ‘removal’ in a different manner in sec. 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. This discussion takes us to the conclusion that Ummaid Ram could be removed only by the State Government and the complaint against him could not be taken cognisance of as there was no previous sanction of the State Government.

18. It is, however urged that Ummaid Ram had ceased to hold the office as fresh election to the office of Sarpanch had taken before the trial court, passed the order of discharge. This point was not canvassed before the Additional Sessions Judge, Jodhpur and we do not think that we should permit the applicant now to do so, as there is no material on record from which the actual date on which Ummaid Ram ceased to hold office of the Sarpanch can be determined.

19. The other accused in the case were acting under the orders of Ummaid Ram and as such there is no case against them. In our opinion, the order of discharge passed against them should not be disturbed as Ummaid Ram cannot be prosecuted.

20. We express no opinion on the point whether Ummaid Ram was protected under sec. 79 of the Rajasthan Panchayat Act. We may, however, mention that Ummaid Ram Sarpanch was acting only in the public interest for widening the public road as the Public Works Department of the State was undertaking the construction of pucca roads in the town of Bilara and Ummaid Ram might have been under the impression that demolition of the Chabutra of the applicant was necessary so that the road could be 14 ft. in width in front of the house of the accused, instead of being only 12 ft. in width if the Chabutra was not demolished. It is on record that the constructions of other residents of the town were ordered to be demolished by Ummaid Ram for the same purpose. The, trial court has taken the view that Ummaid Ram did not act malafide. For this reason also we would not interfere in the order of discharge passed against Ummaid Ram.

21. The revision petition is, therefore, dismissed.

Pukhraj v. Ummaidram

Judgment Summary — Bhandari, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Complainant's Arguments (as noted in the opinion)

Accused/Ummaidram's Plea (as noted in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Direct consequences for the parties

Pukhraj v. Ummaidram

Comments