Public servants cannot be prosecuted for acts or omissions related to their official duty without sanction under Section 197 of the Code of Criminal Procedure.

B. P. BERI, J.

( 1 ) THIS is an application under sections 439 and 561a of the Code of Criminal Procedure directed against the order of the Additional Munsiff-Magistrate No. 2, jodhpur dated the 25th of July, 1968 and upheld by the learned Sessions Judge, jodhpur by his order of the 15th March, 1969.

( 2 ) LALCHAND instituted a complaint against Girdharilal Mahajan, Administrator, municipal Council, Jodhpur, Ramchander Mathur, Commissioner, Municipal Council, jodhpur, Maghraj Agrawal, Health Officer, Municipal Council, Jodhpur, Laxman singh Panwar, Sanitary Inspector, Hansraj, Jama-dar and the Municipal Council, jodhpur, under Sections 268, 278 and 290 of the Indian Penal Code before the additional Munsiff-Magistrate No. 2, Jodhpur. The complainant alleged that he runs a shop in Manak Chowk, Jodhpur. On the other side of the road abutting his shop there is Moti Bais temple. The Municipal Council, Jodhpur gets refuse collected in front of the shop of the complainant and thereby obstructs more than half the road and renders the atmosphere noxious to the health of the public and the residents of the locality. The heaps so collected emit offensive odour to the annoyance of the public. Because it blocks the passage on the road it causes common injury, danger and annoyance to the people in general and those who dwell or occupy properties in the neighbourhood in particular. The refuse is being collected every day in the hours between 7 and 8 A. M. and is left lying there upto 4 P. M. and some times even for 2 or 3 days consecutively. This public nuisance, alleges the complainant, is created by the acts of the petitioners before me and notwithstanding the fact that they were asked to remove it they had neglected to do so and, therefore, the complaint before a criminal court had to be instituted. The learned Magistrate registered a case and issued processes for the attendance of the accused persons. The accused persons did not appear before the Magistrate but moved an application by way of revision before the learned Sessions Judge, jodhpur, who has expressed the opinion that the question whether the prosecution of the petitioners Nos. 1 and 2 required sanction under section 197 of the Code of criminal Procedure could only be decided after some evidence on behalf of the complainant had been recorded. For, add-ed the learned Sessions Judge, it was not a part of the duty of the Municipal council to create nuisance, in fact its obligation was to the contrary. He dismissed the revision application. The petitioners are still dis- satisfied and they have come up before me.

( 3 ) MR. Singhvi appearing for the petitioners argued that the petitioners Nos. 1 and 2 are only removable by the State Government and they cannot be prosecuted for what is alleged to be their official duty without the permission of the State government as envisaged by section 197 of the Code of Criminal Procedure. He placed reliance on Ramayya v. State of Bombay, AIR 1955 SC 287 and Matajog dobey V. H. C. Bhari, AIR 1956 SC 44. The second submission of the learned counsel is that the petitioners Nos. 3, 4 and 5 cannot be prosecuted because on the complainants own showing they are being accused of what is clearly a vicarious liability, which is not possible unless the statute itself so authorises. Reliance has been placed on Sri-nivas Mall v. Emperor, AIR 1947 PC 135, and hariprasada Rao v. The State, AIR 1951 SC 204.

( 4 ) MR. Ganpat Singh appearing on behalf of the complainant contended that the creation of a nuisance has no relation to the public duties discharged by the officers Nos. 1 and 2 and therefore no sanction under section 197 Cr. P. C. is necessary. He placed reliance on Ramnath v. Saligram, AIR 1967 All 519; Nagraj v. State of Mysore, AIR 1964 SC 269; Om Prakash v. State of U. P. , AIR 1957 SC 458; Baijnath v. State of M. P. , AIR 1966 SC 220; Bakhshish Singh v. State of punjab, AIR 1967 SC 752; Arulswami v. State of Madras, AIR 1967 SC 776; Capt