A prosecution against a public servant removable only by the State Government cannot be launched without a valid sanction from the proper authority, if the alleged offence was committed while acting or purporting to act in the discharge of his official duty.

ORDER

This revision is directed against the order dated 4-9-71 passed by the trial court, thereby framing a charge against petitioner No. 1 under Section 379/109, I.P.C., and against all the rest under Section 379, I.P.C.

2. The allegation against petitioner Nos. 2 to 7 in short is that they dishonestly removed some Jamu (black-berry) trees belonging to the Revenue Department and standing on plots Nos. 2929 and 2930, in mouza Khandapara Garh, Against petitioner No. 1 it is alleged that he abetted the commission of theft of the said Jamu trees by the other accused persons.

3. Mr. Misra, the learned counsel for the petitioners, contends that petitioner No. 1, being a public servant removable by the State Government, could not be proceeded against without a valid sanction from the proper authority, and as such this proceeding against him is bad in law and is liable to be quashed. With regard to the other petitioners it is urged that they cut and removed the trees in question as they purchased the same in a public auction conducted by the Sarpanch of the Gram Panchayat and so they have not committed any offence.

4. In fitness of things. I will at first take up the case of petitioner No. 1. At the outset it must be stated that the statement made by the Magistrate in the impugned order that his predecessor while taking cognizance of the matter on 25-3-71 appropriately considered the question of sanction and was satisfied that no such sanction was necessary to prosecute petitioner No. 1 is patently incorrect. Apart from the fact that cognizance in this case was taken, as I can see from the order sheet on 6-4-71 and not on 25-3-71, there is absolutely nothing in the order dated 6-4-71 that the Magistrate taking cognizance at all considered the question of sanction. That order, by which cognizance was taken, merely states that charge-sheet was received against the petitioners under Section 379/109, I.P.C. "cognizance taken", and the accused persons were summoned to appear on the next date fixed by the Court. Except stating "cognizance taken" there is absolutely nothing in the said order as to whether the above-mentioned question in any form or manner was considered, much less decided, by that Magistrate at the time of taking cognizance.

5. It is seen from the F.I.R. that petitioner No. 1 is sought to be prosecuted not by his name, but by his designation as the Sarpanch of the Khandapara Gram Panchayat. The court below after stating the name of petitioner No. 1 has described him as the Sarpanch of the Khanda Gram Panchayat. As per the provisions of S. 143 of the Orissa Gram Panchayat Act (hereinafter referred to as the Act) all members officers and others mentioned in that Section are deemed to be public servants within the meaning of Section 21, I.P.C. Accordingly there is no doubt and it is not challenged, that petitioner No. 1 being the Sarpanch of the Gram Panchayat shall be deemed to be a public servant within the meaning of Section 21, I.P.C.

6. Under Section 115(2) of the Act, the Sarpanch of a Gram Panchayat is removable only by the State Government. True it is that a Sarpanch is liable to vacate officer in some other ways provided under the Act. But vacation of office under the other provisions of the Act is not the same thing as removal contemplated under Section 115(2) of the Act. Removal under Section 115(2) of the Act in my opinion is termination effected by a superior authority forcing the incumbent to vacate the office. The word 'removable' in Section 197, Cr.P.C. has the same connotation and is to be understood in the same technical sense. Other forms of termination, of the office provided under the Act would not amount to removal contemplated under Section 115(2) of the Act and under Section 197, Cr.P.C. My above view is supported by the Division Bench decision on this point in Pukhraj v. Ummaidram, AIR 1964 Raj 174 = (1964 (2) Cri.L.J. 339). I am also inclined to take the above view because of the difference in the ter