Prosecution against a municipal secretary requires prior government sanction under Section 548 of the Kerala Municipality Act if actions were performed in official capacity.

ORDER

P etitioner was the secretary of Kollam Municipal Corporation during the period from 2006 to 2008, and she retired from service in the year 2010. The petitioner is the first accused in C.C.No.2216/2010 on the file of Judicial First Class Magistrate Court-II, Kollam arising from Crime No.409/2008 of Kollam East Police Station. Above case is charge sheeted against the petitioner alleging offence punishable under sections 447 and 427 R/w 34 Indian Penal Code.

2. The prosecution case is that, while the petitioner was working as the Secretary of Kollam Muncipal Corporation, on 19.03.2008, the 2 nd accused as a contractor and the 3 rd accused as a councillor of Kollam Corporation, constructed a drainage canal through the property of the de facto complainant and her sister Meera Karunkaran and the 2 nd and 3 rd accused committed the said acts with the knowledge of the 1 st petitioner and hence all accused thereby committed the offence under Sections 447,427 r/w 34 of the IPC. Annexure-1 is the complaint submitted by the defacto complainant. Pursuant to Annexure-1, Annexure-2 FIR is registered by the Kollam East Police station. The Annexure-3 is the summons received by the petitioner from the Judicial First Class Magistrate Court, Kollam and Annexure-4 is the certified copy of the final report in C.C.No.2216/2010 on the file of Judicial First Class Magistrate Court, Kollam.

3. According to the petitioner, even if the entire allegation are accepted, the offence is not made out. The counsel submitted that, the petitioner was discharging his duties as the secretary of Kollam corporation and hence, without getting sanction under Section 548 of the Kerala Muncipality Act sanction for prosecution is necessary. Therefore, the order taking cognizance based on Annexure-4 is unsustainable.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. There is no appearance for the 2 nd respondent de facto complainant.

5. The short point raised by the petitioner is that, the prosecution is initiated without sanction for prosecution in accordance to Section 548 of the Kerala Muncipality Act. is extracted here under:-

“ Kerala Municipality Act , 1994 - Section 548 :- Sanction for prosecution of Chairperson, Secretary or Councilor.

Where the Chairperson, any Councillor or the Secretary of a Municipality 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 of the Government.”

6. Section 548 says that, if a chairperson, any Councillor or Secretary of a municipality 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 taken cognizance of such offence except with the previous sanction of the government.

7. A perusal of the allegation in the final report would show that, it is an action from the side of the petitioner in discharge of his official duty. Whether the petitioner exceeded in his official duties is not a question to be decided in this case, because prime facie it is clear that the petitioner was discharging her official duty, and hence sanction under section 548 of the Muncipality Act is necessary.

8. According to the petitioner, the construction of the drainage was using the funds of the corporation. That will strengthen the case for the petitioner that, her action was while discharging her official duty.

9. In such circumstances, I am of the considered opinion that, the continuation of the prosecution against the petitioner, who was the secretary of the Kollam Corporation need not be continued for want of sanction under section 548 of the Kerala Muncipality Act.

Therefore this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner alone in C.C.No.2216/2010 on the file of Judicial First Class Magistrate Court-II, Kollam aris