Prosecution of public officials requires prior governmental sanction; absence renders proceedings void.

1. This petition has been filed under S.482, Cr. P.C. (New) for quashing the proceedings pending before the III Addl. Sessions Judge in Sessions Trial No. 98 of 1973 against the applicants and the charges framed under S.468/34 and 471/34, I.P.C. and the amended charges under S.420 and S.120 - B, I.P.C.

2. Prem Narain is a member of the Municipal Board, Soron and Mayaram is the Overseer of that Board. A complaint was filled against them by one Wazir Ali, brother of Kifayat Ali, who was another member of the Municipal Board. It was under S.409, I.P.C. to the effect that certain construction work was to be carried out within the limits of the Municipal Board, Soron for which sanction of the Chairman had been obtained. That work was to be carried on under the supervision of Maya Ram the petitioner and Prem Narain as member of the Municipal Board was required to certify that the work had been completed. It was alleged that the work had not been carried on at all but a wrong certificate had been given by Prem Narain that the work had been completed and a false muster - roll had been prepared by Mayaram. The Magistrate took cognizance on the basis of that complaint and framed charges under S.468/34 and 471/34, I.P.C. and committed the case to the Court of Session for trial. The trial was almost completed and was ready for judgement. The Sessions Judge then realised that the charges had to be amended and so the amended charges were framed under S.420 and S.120 - B, I.P.C. Further evidence was ordered to be recorded. It was at this stage that the present petition was filed and stay order was obtained.

3. Prem Narain has been suspended by the Government because a criminal case was pending against him. Mayaram too has been suspended. Learned counsel for the applicants has argued that the applicants have been put to a great harassment because of groupism in the Municipal Board and they are likely to suffer more by a prolonged trial. It was argued that the Magistrate wrongly took cognizance in the absence of sanction of the Government under S.197, Cr. P.C. (old) and as such the entire proceedings were vitiated. No counter - affidavit was filed in this case although time for filing the counter - affidavit was taken.

4. There is no dispute about Mayaram being a public servant. S.84 of the U.P. Municipalities Act provides that every officer or servant of a Board shall be deemed to be public servant within the meaning of the Indian Penal Code . There was a controversy on the point whether Prem Narain in the capacity of Municipal Board Commissioner was also a public servant or not. Illustration to S.21 (12th) of the I.P.C. clearly indicates that a Municipal Commissioner is a public servant. The Rajasthan High Court in the case of State v. Bansilal Luhadia , AIR 1962 Raj. 250 : (1962 CriLJ 786) held that the word 'Commissioner' in this Illustration has been used in the sense of Municipal member or councillor and not in the sense of an officer in the employment of a Municipality who is sometimes designated by that name. A learned single Judge of this Court also held in the case of Bhairon Pd. V. Emperor , AIR 1928 All 756 : (1928 CriLJ 62) that a member of the Municipal Board was covered by the definition of public servant and sanction of the local Government under S.197, Cr. P.C. was necessary for prosecuting him. Their Lordships of the Supreme Court also held in the case of Maharudrappa Danappa Kesarappanavar v. State of Mysore , AIR 1961 SC 785 : (1961 - 1 Cri LJ 857) that, the Chairman of a managing committee of the Municipal Board is a public servant within clause (10) of S.21, I.P.C.

5. S.40 of the U.P. Municipalities Act provides that a m