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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Shubh Karan
  • M.C.Bhoot
Judges
  • C.B Bhargava, J.
Acts
  • provision of the Rajasthan Panchayat Act, 1953 i.e S. 17(4).7.
  • Section 27(2) of the Rajasthan Panchayat Act, 1953
  • clause (b) of sub-section (1) of Section 197
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Shubh Karan
  • M.C.Bhoot
Judges
  • C.B Bhargava, J.
Acts
  • provision of the Rajasthan Panchayat Act, 1953 i.e S. 17(4).7.
  • Section 27(2) of the Rajasthan Panchayat Act, 1953
  • clause (b) of sub-section (1) of Section 197
See more information ...
Smart Summary

Structured Summary of the Opinion: Revision by Ram Dutt and Others

Factual and Procedural Background

This revision arises from an order dated 5 May 1964 of the Additional Munsiff Magistrate, Jalore in a complaint under Sections 384, 147 and 427 of the Indian Penal Code. The complaint alleged that on 20 January 1962 eighteen accused, forming an unlawful assembly, removed the complainant's “Bada” and thatch and dishonestly took away several articles including a cow. Among the accused were office-bearers of the Gram Panchayat, Umedabad: Ram Dutt (Sarpanch), Mishrilal (Up‑Sarpanch) and Sukhraj (Panch). Some accused contended before the trial Magistrate that their prosecution required prior sanction of the State under Section 197 of the Code of Criminal Procedure because the removal was done in discharge of their official duty.

The Panchayat had passed a resolution for removal of the disputed ‘Bada’ on 5 March 1959 and served a notice on the complainant on 14 January 1962 to remove it; the complainant did not remove it and the Panchayat members removed it on 20 January 1962 and made an inventory of articles. The complainant, however, had filed an appeal against the 1959 resolution and obtained a stay order from the Vikas Adhikari on 17 January 1962, which the complainant contended had been communicated to the accused prior to the removal. The trial Court and the District Magistrate in revision overruled the accused's objection under Section 197; the present revision challenges that outcome.

Legal Issues Presented

  1. Whether prosecution of the Sarpanch, Up‑Sarpanch and Panchas is barred by Section 197 of the Code of Criminal Procedure because they are public servants removable only by or with the sanction of the State Government.
  2. Whether the acts complained of (removal of the “Bada” and related taking of articles) were done while the accused were acting, or purporting to act, in the discharge of official duty such that Section 197 protection applies (i.e., whether there is a reasonable connection between the acts and official duty).
  3. Whether members of a Gram Panchayat (Sarpanch, Up‑Sarpanch, Panchas) qualify as persons “employed in connection with the affairs of the State” for the purposes of Section 197(1)(b) CrPC.

Arguments of the Parties

Accused / Petitioners

  • Contended that their prosecution was barred under Section 197 CrPC because they were public servants (Sarpanch, Up‑Sarpanch, Panchas) and the removal of the ‘Bada’ was done in the discharge of official duty under Section 27(2) of the Rajasthan Panchayat Act, 1953.
  • Relied on the fact that a Panchayat resolution (5-3-1959) and a notice (14-1-1962) preceded the removal on 20-1-1962 and that the Panchayat had authority to remove the ‘Bada’ if the complainant failed to do so.

Complainant / Respondent

  • Asserted that an appeal had been filed against the Panchayat's 5 March 1959 resolution and a stay order of the Vikas Adhikari dated 17 January 1962 had been obtained and communicated to the accused before the removal; this, the complainant argued, negated the claim that the accused acted in discharge of official duty.
  • Argued, relying on K. Narayana v. B. Veerayya, that a Sarpanch or Up‑Sarpanch are not “employed in connection with the affairs of the State” and thus not entitled to protection under Section 197 CrPC.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Chauthmal v. Pannalal, ILR (1954) 4 Raj 464 One of several earlier decisions showing divergence on whether a Sarpanch/Panch is removable only with State sanction. Cited as part of the body of decisions evidencing divergent views in this Court on the removability question; led to reference to a Division Bench decision.
Kalu v. Pyara, ILR (1959) 9 Raj 38 Another earlier decision reflecting divergence of opinion on removability and Section 197 applicability. Referenced as part of the conflicting authorities considered by the Court before the Division Bench ruling.
Mohanlal v. State, ILR (1959) 9 Raj 583 Earlier authority relevant to the divergence of opinion on whether panchayat office‑holders fall under Section 197 protection. Noted among prior conflicting cases; contributed to the context for referring the question to a Division Bench.
Bhagwatilal v. Bhanwar Lal, 1960 Raj LW 610 : (1961 (1) Cri LJ 558) Earlier conflicting authority about removability and entitlement to Section 197 protection. Listed with other decisions reflecting divergence of opinion in the High Court on the issue.
Pukhraj v. Ummaidram, 1964 Raj LW 238 : AIR 1964 Raj 174 Interpreted the word “removable” in Section 197 CrPC and held that a Sarpanch could be removed only by the State Government; thus previous sanction was required for prosecution. The Division Bench's interpretation was expressly adopted: "removable" means termination of office by superior authority (for misconduct etc.), and on that basis a Sarpanch (and by parity a Panch) is removable only by the State, so Section 197 protection applies.
Ramayya v. State of Bombay, AIR 1955 SC 287 Explained that Section 197 should not be construed too narrowly; the focus is on whether the act has a reasonable connection with official duty, not whether the act is itself an official duty. Relied upon to support the proposition that an official act can be performed in discharge of duty or in dereliction of it; thus the court must look for reasonable connection between the act and official duty to attract Section 197.
K. Narayana v. B. Veerayya, AIR 1959 Andh Pra 27 Held (in that case) that a Sarpanch or Up‑Sarpanch is not a person employed in connection with the affairs of the State and thus not entitled to Section 197 protection. Cited by the complainant; the Court explicitly disagreed with this view and explained why Gram Panchayats and their office‑holders fall within the expression “the State” for the purposes of Section 197.

Court's Reasoning and Analysis

The Court set out the legal requirements of Section 197 CrPC: to attract its protection, it must be shown that (1) the accused is a public servant who is not removable from office except by or with the sanction of the State Government (or Central Government), and (2) the act alleged to have been committed was done while acting, or purporting to act, in the discharge of official duty.

On the first requirement the Court recognized divergent earlier decisions on whether the Sarpanch/Panch fell within the class of public servants removable only by State sanction. The Division Bench decision in Pukhraj v. Ummaidram was treated as determinative on that point: the Court accepted the Division Bench's technical construction of "removable" to mean that vacation of office is caused by a superior authority (for misconduct or similar cause) and that such removability triggers the protections contemplated by Section 197. Applying that reasoning by parity to the powers under Section 17(4) of the Rajasthan Panchayat Act, 1953, the Court concluded that a Sarpanch and Panchas are removable under State authority and therefore are public servants covered by Section 197.

On the second requirement the Court applied the principle from Ramayya v. State of Bombay that Section 197 should not be construed so narrowly as to require that an act be an explicit duty; rather, there must be a reasonable connection between the act and the discharge of official duty. The Court examined the facts: there was a Panchayat resolution of 5 March 1959, a notice to the complainant (Ex. 5), and the Panchayat members removed the disputed ‘Bada’ on 20 January 1962, making an inventory. Given these facts, the Court held there was a sufficient connection between the removal and the accused's official duties under Section 27(2) of the Rajasthan Panchayat Act, so that Section 197 would apply unless it were shown that the act was mala fide or in excess of power — a matter for trial.

The Court further considered the complainant's contention (and the authority K. Narayana) that Panchayat office‑holders are not “employed in connection with the affairs of the State.” The Court rejected that view, referring to Section 69 of the Rajasthan Panchayat Act (State Government as chief controlling authority over Panchayats) and to constitutional considerations (Article 12 and Entry 5, List II), concluding that Gram Panchayats are included within the expression “the State” and that Sarpanch/ Panchas employed in administration of Panchayats are employed in the affairs of the State.

Applying these legal conclusions to the present record, the Court held that the trial Court was not competent to take cognizance of the offences against Ramdutt, Mishrilal and Sukhraj without previous sanction of the State Government. As to petitioners Thaniya and Gajra, there was no material on record to show they were Panchas when the complaint was filed; if later shown to be Panchas the judgment would apply to them as well. For the remaining accused (petitioners numbered 5 to 14 in the opinion), Section 197 did not apply on the face of the record; such persons would require evidence to show they were acting in good faith under directions of the office‑holders and the trial court would decide their guilt or innocence in due course.

The Court noted that the question whether the removal was done after communication of the Vikas Adhikari's stay order and whether the act was mala fide was to be determined at trial; the present stage was limited to determining whether prior sanction was required before taking cognizance.

Holding and Implications

HOLDING: The revision is partly allowed.

Direct consequences as stated by the Court:

  • Proceedings against Ramdutt (Sarpanch), Mishrilal (Up‑Sarpanch) and Sukhraj (Panch) are quashed because the court was not competent to take cognizance without previous sanction of the State Government under Section 197 CrPC.
  • Proceedings against petitioners Thaniya and Gajra will continue unless and until it is shown to the trial court that they were Panchas when the complaint was filed; if shown, this judgment will govern their position.
  • Proceedings against the other accused (petitioners numbered 5 to 14) will proceed; Section 197 was held not to apply to them on the record and evidence will be required at trial to show whether they were acting in good faith under directions of the office‑holders and whether any offence is made out against them.

Broader legal implications articulated by the Court (as part of its reasoning): the Court concluded that Sarpanch, Up‑Sarpanch and Panchas of a Gram Panchayat are persons employed in connection with the affairs of the State and are entitled to the protection of Section 197 CrPC; and that whether an alleged act was mala fide or done in excess of power is a matter for trial and does not preclude applicability of Section 197 where a reasonable connection with official duty is shown.

The opinion therefore altered the immediate procedural posture for certain accused (quashing proceedings for three office‑holders) but left questions of mala fides, excess of power and the culpability of other participants to be determined at trial. No assertion that this decision established any further novel rule beyond the reasoning set out was made in the text; the Court relied on prior authorities and on statutory/constitutional provisions to reach its conclusions.

Disposition: Revision partly allowed.

Show full summary ...

    Ramdutt And Others v. State Of Rajasthan And Others Opposite Party.

    1. This is an application in revision by Ram Dutt and 13 others against the order of the Additional Munsiff Magistrate, Jalore dated 5th May, 1964 in a complaint case under Ss. 384, 147 and 427 Indian Penal Code. It was alleged in the complaint that the accused, who were 18 in number formed an unlawful assembly on 20th January, 1962 and in prosecution of their common object removed the complainant's ‘Bada’ and thatch and also dishonestly took away a number of articles including a cow. Amongst the accused Ram Dutt is Sarpanch, Mishrilal an Up-Sarpanch and Sukhraj, Thaniya and Gajra are Panchas of the Gram Panchayat, Umedabad. Some of these accused urged before the trial Magistrate that their prosecution without the previous sanction of the State was barred in view of the provisions of Section 197 of the Cr PC. It was urged that the ‘Bada’ in dispute was removed by them in the discharge of their official duty.

    2. It was pointed out that the resolution was passed by the Gram Panchayat for the removal of the disputed “Bada” on 5-3-1959. Thereafter on 14th January, 1962 a notice was ghren to the complainant to remove that ‘Bada’, but he failed to do so, and so the members of the Panchayat removed it on 20th January, 1962 and also prepared an inventory of the articles found in the ‘Bada’ which were duly entrusted to the custody of the Motbirs. It was urged that under Section 27(2) of the Rajasthan Panchayat Act, 1953 the Panchayat was entitled to remove the ‘Bada’ when the complainant failed to remove it in spite of a notice given to him.

    3. On behalf of the complainant it was urged that the complainant had filed an appeal against the resolution of the Gram Panchayat dated 5th March, 1959 and also obtained a stay order from the Vikas Adhikari on 17th January, 1962, which was duly communicated to the accused before they undertook the removal of “Bada”. In such circumstances it was urged on behalf of the complainant that the accused cannot be said to have been acting in the discharge of their official duty. The learned Additional Munsiff Magistrate as well as the learned District Magistrate in revision overruled the objection of the accused. Hence this revision.

    4. There is no dispute that on the date the complaint was filed the petitioner No. 1 Ramdutt was Sarpanch, Mishri Lal an Up-sarpanch and Sukhraj a Panch of the Gram Panchayat, Umedabad. With regard to the petitioners Thaniya, and Gajra though the lower court has said in its judgment that they are also Panchas but there is nothing on the record to substantiate that fact and the learned counsel for the complainant is not prepared to accept this fact, without further instructions.

    5. Now in order to attract the provisions of Section 197 of the Cr PC it is necessary to show that the accused is a public servant who is not removable from his office save by the sanction of the State Government or the Central Government and the act alleged to have been committed by him was done while acting or purporting to act in the discharge of his official duty. On the first question whether a Sarpanch or a Panch was a public servant only removable by or with the sanction of the State Government there was divergence of opinion in this Court. See Chauthmal v. Pannalal, ILR (1954) 4 Raj 464; Kalu v. Pyara, ILR (1959) 9 Raj 38; Mohanlal v. State, ILR (1959) 9 Raj 583 & Bhagwatilal v. Bhanwar Lal, 1960 Raj LW 610 : (1961 (1) Cri LJ 558). Subsequently this question was referred to a Division Bench and the Division Bench in Pukhraj v. Ummaidram, 1964 Raj LW 238 : (AIR 1964 Raj 174) held:

    “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 Article 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 Section 197 of the Cr PC and not in any other sense…………….The word “removal” must have the meaning of causing vacation of office as a result of misconduct or misbehaviour or any other similar cause.”

    6. Finally the Division Bench came to the conclusion that a Sarpanch could be removed only by the State Government and the complaint against him could not be taken cognizance of as there was no previous sanction of the State Government. The same argument applies to the case of Panchas because the power of removal of any Panch, Sarpanch or Up-Sarpanch is contained in the same provision of the Rajasthan Panchayat Act, 1953 i.e S. 17(4).

    7. As for the second point it is well settled that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. The question whether the act was done in excess of its power or was mala fide is not to be considered for applying the provisions of Section 197 of the Cr PC. It is a matter which can be decided at the trial. Once it is shown that the act complained of had reasonable connection with the discharge of official duty the ban imposed under Section 197 of the Cr PC would come into play. In Ramayya v. State of Bombay, (S) AIR 1955 SC 287 it was held:

    “If Section 197 of the Cr PC is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty which the courts have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.”

    8. It was therefore to be seen in the present case whether the act complained of had any reasonable connection with the discharge of official duty of the accused i.e Panchas and Sarpanch. It is sufficiently clear on the record that a resolution was passed by the Panchayat on 5th March, 1959 for the removal of the disputed, ‘Bada’. It is equally clear from Ex. 5 that the complainant was asked to remove it. The complainant having failed to remove the disputed ‘Bada’ the Sarpanch Up-Sarpanch and the Panchas themselves removed the ‘Bada’ purporting to act under the powers given to the Panchayat under S. 27(2) of the Act. It cannot therefore be said that the removal of the disputed ‘Bada’ or the articles, lying therein had no connection with their official duty. The question that they removed the ‘Bada’ after a stay order passed by the Vikas Adhikari was communicated to them should be considered to determine whether the act was mala fide and further the proper stage for it would come during the trial. But at present the lower court was not competent to take cognizance of the offence unless previous sanction for their prosecution was obtained from the State Government.

    9. Learned counsel for the complainant has urged that the accused were not employed in the affairs of the State and therefore no previous sanction of the State Government was required. In this connection he has referred to K. Narayana v. B. Veerayya, AIR 1959 Andh Pra 27 where the learned Judge observed:

    “Moreover, to attract the protection conferred by Section 197 of the Cr PC the public servant concerned must be, as laid down by clause (b) of sub-section (1) of Section 197 of the Cr PC a person employed in connection with the affairs of a State. It cannot be said that a Sarpanch or an Up-Sarpanch is a person “employed” in connection with the affairs of a State. As already noticed, the Sarpanch and Up-Sarpanch are elected by the Gram Panchayat. They hold their office by election and not by employment. In this view also, petitioners 1 and 3 are not entitled to the protection under Section 197 of the Cr PC. It follows that a Sarpanch or an Up-Sarpanch is not a public servant not removable from his office save by or with the sanction of the State Government; nor is he a person employed in connection with the affairs of the State.”

    10. With respect I am unable to subscribe I to this view. The expression “affairs of a State” has not been defined in the Code of Criminal Procedure. The Gram Panchayats have been established in this State to establish and develop Local Self Government and to take measures conducive to better administration of the villages. Under S. 69 of the Act it is provided that the State Government shall be the chief controlling authority in respect of all matters relating to the administration of Panchayats. Besides the definition of the term “the State” in Article 12 read with Entry 5 in List II of the seventh schedule of the Constitution of India clearly shows that Gram Panchayats too are included in the expression “the State”. Therefore Sarpanchas and panchas who are employed in connection with the administration of Panchayats are employed in affairs of the State. In my view the Sarpanch, Up-Sarpanch and Panch i.e the petitioners No. 1 Ramdutt, No. 2 Mishrilal & No. 3 Sukhraj are entitled to protection afforded by Section 197 of the Cr PC and the Court was not entitled to take cognizance of the offence unless previous sanction for their prosecution was obtained. In the absence of any material on the record whether the petitioners Nos. 4 and 5 i.e Thaniya and Gajra are also Panchas nothing can be said at this stage about them, but if the trial court feels convinced that they were also Panchas of the Gram Panchayat when the complaint was filed against them this judgment will also govern their case. With regard to the other petitioners i.e Nos. 5 to 14 obviously section 197 of the Cr PC has no application. Evidence will be required in then case to satisfy the court that they too were acting in good faith under the directions of the petitioners Nos. 1 to 3 and the trial court will then decide whether any offence is made out against them. The result therefore is that this revision is partly allowed and the proceedings taken in the complaint against Ramdutt, Mishrilal and Sukh Raj are quashed. The proceedings against the petitioners Nos. 4 to 5 will continue until it is brought to the notice of the court that they were also Panchas when the complaint was filed against them. As regards the other petitioners the case will be disposed of in accordance with law as observed above.

    AJ/D.R.R

    11. Revision partly allowed.

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    Comments

    Ramdutt And Others v. State Of Rajasthan And Others Opposite Party.
    (Oct 21, 1965)