KAN SINGH, J.—This is a revision application by the accused Sukhdeo and others in a case under secs.447, 427 and 147 I PC. against the order of the Additional Munsif Magistrate No, 1, Bundi holding that the prosecution of the accused was not barred under sec. 197 Cr.P.C.

2. Kistoorchand resident of Gendoli lodged the complaint against Sukhdeo and nine others to the effect that they opened a new way through the field of the complainant after closing the way which lay through the field of accused No. 5 Bala and in doing so they caused damage to the standing crop as also the fencing of the complainants field. The accused were alleged to have committed the offence of criminal trespass as well. After the accused were summoned they put in an application before the learned Magistrate that Sukhdeo was the Sarpanch of the Gram Panchayat and the complainant had closed an existing way through his field which was reopened by the Panchayat. The learned Magistrate dismissed the application holding that the accused cannot be said to have acted in discharge of their official duties. Against the order of the learned Additional Munsif Magistrate the accused first approached the learned Additional Sessions Judge, Bundi in revision but he declined to make a reference.

3. The learned Judge observed that the powers of the Gram Panchayat have been specified in sec. 23(a) to sec. 27 of the Rajasthan Panchayat Act, 1953 (hereinafter referred as the act) and sec. 25;i)(ii) of the Act only provided that the Panchayat shall have the power to require the owner or occupier of any building to remove any encroachment on a public way or drain but in the instant case the dispute related to an agricultural land and not to any building, and consequently the learned Judge held that the Panchayat had no power to order the removal of encroachment, if any. Again, according to the learned Additional Sessions Judge no such power was conferred even by the third schedule attached to the Act.

4. It is in these circumstances that the accused have come to this Court in further revision.

5. The question that falls for determination is whether in the circumstances of the case sanction for prosecution was necessary under sec. 197 Cr.P.C. Sec. 197 Cr.P.C. reads as under—

"197(1) when any person who is a Judge within the meaning of sec. 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a "State Government" or "the Central Government" is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the "previous sanction—

"(a) in the case of a person employed is connection with the affairs of the Union, of the Central Government; and

(b) in the case of a person employed in connection with the affairs of a State, of the State Government."

(2) "The Central Government or the State Government" as the case may be, may determine the person by whom, the manner is which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

This section had been interpreted in a number of cases of the Supreme Court as also of this High Court. In the recent case of the Supreme Court reported as Prabhakar V. Sinari vs. Shanker Anant Verlekar (1) their Lordships after reviewing the previous cases observed as follows—

"The language of sec. 197 clearly is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section which would include the Deputy Supdt. of Police when he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. It does not matter if the acts were strictly necessary for the discharge of the dut

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