Sarpanch and Upa-Sarpanch of a Gram Panchayat are not public servants not removable from office save by or with the sanction of the State Government, and therefore they are not entitled to the protection under Section 197, Cr. P. C.

( 1 ) THIS is a petition to revise the order of the First Class Magistrate, Gadwal, overruling the preliminary objection raised on behalf of the accused-petitioners that the complaint filed against them for an alleged offence of mischief punishable under Section 427, I. P. C. , cannot be taken cognizance by the Court except with the previous sanction of the State Government, as provided by Section 197, Cr. P. C.

( 2 ) ONE, Balakanti Veerayya, filed a complaint before the First Class Magistrate, Gadwal, against the 12 petitioners alleging that he had constructed a flight of stairs in front of his house leading up to the terrace after obtaining the requisite permission from the Panchayat of Maldakal village, that the petitioners who were opposed to him, with the bad intention of causing loss and damage to him, and taking advantage of the absence of the inmates of the house, had, on the morning of 17-9-1957, demolished the stairs and thereby caused him a loss of Rs. 100. 00, and that they are, therefore, liable for an offence under Section 427, I. P. C. The complainant further alleged that he bad strong evidence to substantiate his case.

( 3 ) THE case of the petitioners is that the complainant had constructed the stairs without the sanction of the Panchayat Committee and that, as the said construction was causing inconvenience to the public, the Panchayat Committee had issued a notice to the complainant to remove the stairs within a specified period and since he had failed to do so, the Panchayat Committee had directed the unauthorized construction to be removed, and the petitioners had removed the obstruction by destroying the stairs in pursuance of the directions given by the Panchayat Committee, and that the act of the petitioners was one done in the discharge of their official duty and, therefore, they are protected by the provisions of Section 197, Cr. P. C. The lower Court overruled this objection; hence this revision.

( 4 ) PETITIONER No. 1 is the Sarpanch and petitioner No. 3 is the Upa-Sarpanch of the Gram Panchayat. Under Section 26 (1) of the Hyderabad Gram Panchayats Act, 1956, they are elected by the members of the Gram Panchayat, and Sub-section (3) provides that every Sarpanch or Upa-Sarpanch shall cease to be as such on the expiry of his term of office as a Panch. It is contended on behalf of petitioners 1 and 3 that, by virtue of Section 145 of the Gram Panchayats Act, they shall he deemed to be public servants within the meaning of Section 21 of the Indian Penal Code, and since they are not removable from their office save by or with the sanction of the State Government, and since the offence complained of was one committed by them while acting or purporting to act in the discharge of their official duty, no Court shall take cognizance of such offence except with the previous sanction of the State Government.

( 5 ) IT is also contended by the learned Advocate for the petitioners that Section 128 of the Act is a bar to the prosecution of the petitioners inasmuch as the petitioners had acted in good faith.

( 6 ) I am clearly of opinion that there is no substance in either of these contentions. As regards the first contention, it is true that petitioners 1 and 3 who are the Sarpanch and the Upa-Sarpanch respectively, are deemed to be public servants by virtue of Section 145 of the Hyderabad Gram Panchayats Act but Section 197, Cr. P. C. does not afford protection to all public servants but only to certain category of public servants, namely, those who are not removable from office save by or with the sanction of a State Government or the Central Government as the case may be. Therefore the question for consideration is, whether the Sarpanch and Upa-Sarpanch of the Gram Panchayat are public servants falling within that category; in other words, are they not removable from their office save by or with the sanction of the State Government? Section 115, which deals with the dissolution of Gram Panchayats