Public servants, including Sarpanchas, Up-Sarpanchas, and Panchas of Gram Panchayats, who are removable only by the State Government, are entitled to protection under Section 197 of the Criminal Procedure Code, and their prosecution for acts done in the discharge of their official duty requires prior sanction from the State Government.

ORDER :- 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.

2. 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 S. 197 Criminal Procedure Code. It was urged that the 'Bada' in dispute was removed by them in the discharge of their official duty.

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 given 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 S. 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.

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.

3. 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.

4. Now in order to attract the provisions of S. 197 Criminal Procedure Code 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 and 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 und