Chhangani, J.—This is a reference by the learned Sessions Judge, Udaipur recommending that the order of the Sub-Divisional Magistrate, Udaipur dated 25th April, 1958 dismissing the petitioner Bhagwati Lals complaint for want of sanction under sec. 197 Cr.P.C., should be set aside and the Magistrate may be directed to try the complaint on merits.

2. The facts leading to the present reference may be briefly stated as follows:— The complainant Bhagwatilal was contesting the election for Sarpanchship for the Tehsil Panchayat Girwa. Accused No. 1 Bhanwar Lal was a rival candidate. It appears that on an application by accused No. 1 Bhanwarlal requesting for a certificate regarding the residence of Bhagwatilal, accused Nos. 2 to 6 who are Sarpanch and panchas of Gram Panchayat Kudawal after obtaining a report from the Patwari accused No. 7 to the effect that the name of the complainant Bhagwatilal is not included in the list of the voters for the Panchayat Kudawal, issued a certificate to that effect under their signatures and the seal of the Panchayat on 26th February, 1958. The complainants case is that this certificate was issued by the accused Nos. 2 to 6 falsely to put obstacles in the way of the complainants nomination as a candidate for the Sarpanchs election. On these allegations he filed a complaint in the court of the Sub-Divisional Magistrate, Udaipur charging the accused under Secs. 197, 167, 471, 191 and 500 I.P.C. The Magistrate held that the accused Nos. 1 to 6 were public servants not removable except by the Government and that the act complained of was committed by these accused in the purported discharge of official duties and therefore, he was not competent to take cognisance of the offence without sanction of the Government as required by sec. 197 Cr.P.C. He consequently dismissed the complaint.

3. The complainant filed a revision before the learned Sessions Judge Udaipur who agreed with the finding of the trial Magistrate that the act complained of was reasonably connected with the discharge of official duty but holding that the accused were removable from office even by the Chief Panchayat Officer he concluded that sanction under Sec. 197 Cr.P.C. was not necessary. He consequently, has made the present reference for quashing the Magistrates order.

4. The reference has been opposed by Shri Mahavir Chand appearing for the accused and Shri Chaterjee Assistant Government Advocate appearing for the State. Shri Jeewan Sing Chordia for the complainant has supported the reference.

5. The sole question for determination in this case is whether provisions of sec. 197 Cr.P.C. are attracted in the facts and circumstance of this case. It is not and indeed cannot be disputed that the panchas are public servants. According to sec. 78 of the Rajasthan Panchayat Act "the Sarpanch, every Panch, and every officer and servant of a Panchayat and a Tehsil Panchayat shall be deemed to be public servant within the meaning of sec. 21 of the Indian Penal Code." Criminal Procedure Code does not define the term public servant but Sec. 3(i)(2) extends the definition of the I.P.C. to the Criminal Procedure Code. It follows that a Sarpanch and a Panch should be deemed to be public servant within the meaning of Sec. 197 Cr.P.C. The learned Sessions Judge accepted this position. He has however, on a consideration of sec. 18 and 19 of the Rajasthan Panchayat Act recorded a conclusion that the panchas are removable from office by an authority other than the Government, and therefore, they are not entitled to the protection of sec. 197. The learned Judge has also held that the Sarpanch and the Panch while sitting as a court will be no doubt judges but observing that the issuing of a certificate cannot be treated as a discharge of the judicial functions, the learned Judge found that the accused panchas cannot claim protection on this ground under Sec. 197 The conclusions of the learned Sessions Judge have been assailed by Shri Mahavir Chand appearing f

Click Here to Read the rest of this document