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PETITIONER: K.BRAHMA SURAIAH & ANR.

       Vs.

RESPONDENT: LAKSHMINARAYANA

DATE OF JUDGMENT: 26/11/1968

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1970 AIR  816            1970 SCR  (3) 933  1969 SCC  (1) 138

ACT: Mysore  Village  Panchayats and Local  Boards  Act,    1959- Mysore Panchayat Secretaries’ Powers and Duties Rules, 1961, r. 16-Rule providing that complaints and suits on behalf  of Panchayat  to   be  filed  by  Secretary-Private   complaint whether can be filed for  offence  under s. 220 of Act.

HEADNOTE: A private complaint was lodged against the appellants for an offence  under s. 220 of the Mysore Village  Panchayats  and Local  Boards  Act, 1959.  Rule 16 of the  Mysore  Panchayat Secretaries’  Powers and  Duties Rules, 1961  provided  that the Secretary shall have power to file complaints and  suits on  behalf of the Panchayat, and to conduct the  proceedings on its behalf and on the orders of the Panchayat.  On  their conviction  the  appellants  went  to  the  High  Court  and contended  that  in  view  of Rule  16  they  could  not  be prosecuted  on a private complaint.  The High Court  decided against them on the view that the said Rule did not preclude persons other than the Secretary from filing a complaint but it  only debarred complaints being made by others on  behalf of the Panchayat.  Against the High Court’s judgment  appeal by special leave was filed in this Court.     HELD:  (i) In the presence of r. 16 and for the  reasons given by this Court in R. M. Kanavi’s case which dealt  with similar provisions. under the Bombay Municipal Borough  Act, 1925,  it  must  be held that it was the  Secretary  of  the Panchayat who alone was competent to file the, complaint.     Section  213(3)  of the Mysore Act is  analogous  to  s. 23A(3) of the’ Bombay Act under which  the offence  fell  in Kanavi’s  case.  On a parity of reasoning it  could  not  be suggested that if there  had been any  contravention  of  s. 213 ( 3 )  any  voter  or  member  of  the public could have filed a complaint in the matter.  The other provisions. also of  the Act which follow, namely, as. 214 to’  219  indicate that  it  was  never contemplated that a  complaint  for  an infringement  or contravention of the prohibition  contained therein   could  be  lodged  before  a   Magistrate   having jurisdiction  under s. 233 by any private individual in  the presence of specific rule that the Secretary shall have  the

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power to file a complaint on behalf of the Panchayat.   Most of these sections i.e. sq. 217 and 218 postulate  infraction of  orders  of the Panchayat for which the  Panchayat  alone would be interested in filing a complaint.  Thus the  scheme of the Act also supports the view that a complaint could  be filed only under r. 16 of the Mysore Panchayat  Secretaries’ Powers and Duties Rules, 1961 and could not have been  filed by a private complaint. [936 H--937 C] K.M.  Kanavi  v.  State  of Mysore,  [1968]  3  S.C.R.  821, followed and’     (ii)  The  High Court was not fight in saying  that  all offences committed under the various provisions contained in the  Act  would be cognizable owing to  the  general  powers conferred   on  police  officer  by s. 236 of the Act.   The section gives Only a limited power to the police 934 officer  to effect arrest if an offence is committed In  his presence.   The present case moreover did not relate to  the powers  which a police officer could exercise in respect  of an  offence  under  s. 220 of the Act but  to  the  question whether a private complaint could be filed. [937 G---938 C] Public  Prosecutor  v. A. V. Ramiah, A.I.R.  1958  A.P.  392 referred to. (iii)      The  difficulty  felt by the High  Court  that  a Secretary  who  is subordinate to the Chairman may  find  it embarrassing  to file a complaint against him can hardly  be accepted as serious.  The Secretary has to act on behalf  of the Panchayat and it is the panchayat that would be  vitally interested  in preventing and stopping any contravention  of the provisions of s. 220 of the Act. ’The’ Secretary acts on behalf   of   the  Panchayat  and  the   question   of   his subordination  to   any one of its office bearers is  of  no consequence. [938 D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 183  of 1966.     Appeal  by  special leave from the  judgment  and  order dated  March 30, 1966 of the Mysore High Court  in  Criminal Revision Petition No. 384 of 1965. R.B. Datar, for the appellants. The respondent did not appear. The Judgment of the Court was delivered by     Grover,  J,  This is an appeal by special leave  from  a judgment  of the Mysore High Court in which the  only  point involved is whether a private complaint could be entertained for the commission of an offence under s. 220 of the  Mysore Village  Panchayats  & Local Boards Act,  1959,  hereinafter called the "Act". The appellants who were the  Vice-Chairman and  the  Chairman  of the  Keladi  village  panchayat  were convicted under the aforesaid section and sentenced to pay a fine  of Pa. 50 and Pa. 40 and in default to undergo 7  days and 5 days’ simple imprisonment respectively.     A  private  complaint was filed against  the  appellants alleging  that  they  gave bids at an auction  held  at  the village  panchayat  and appellant No. 1  purchased  a  radio belonging  to the panchayat for Pa. 35/-.  Appellant  No.  2 also bid at the same auction for the radio. According to  s. 220 of the Act no member or an employee of a panchayat  shah directly  or indirectly bid for or acquire interest  in  any movable   or  immovable  property  sold  at  such  sale   in connection  therewith.   if  any  person  contravenes   this provision  he is to be punished, on conviction, with a  fine

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which may extend to Rs. 500/-.  Under Rule 16 of the  Mysore Panchayat   Secretaries’  Powers  and  Duties  Rules,   1961 promulgated  under  the  provisions of  the  Act,  only  the Secretary of the Panchayat has the power to file a complaint on behalf of the Panchayat.  The High Court was of the  view that this Rule did not’ preclude persons 935 other than the Secretary from filing a complaint but it only debarred  complaints being, made by others on behalf of  the Panchayat. Now Rule 16 may be reproduced. :--                       "The Secretary shall have power to file               complaints   and  suits  on  behalf   of   the               Panchayat  and to conduct the proceedings   on               its   behalf   under  the   orders   of    the               Panchayat." In  K.M.  Kanavi  v. The State of  Mysore(1)  the  appellant Kanavi, who was the president of Municipal Borough of  Gadag Betgeri had been removed from Presidentship.  He refused  to hand  over the charge of all the papers and  property  which were  in his possession relating to the Borough to  the  new President in spite of an order made by the Government  under s.   23A  of  the  Bombay  Municipal  Boroughs   Act   1925, hereinafter   called  the  "Bombay  Act"  to  that   effect. Pursuant  to orders made by the Divisional Commissioner  and the Deputy Commissioner the new President filed a  complaint against Kanavi for an offence punishable under s. 23A(3)  of the Bombay Act. The appellant was convicted and sentenced to pay  a  fine  of Rs. 50/-.  A  question  arose  whether  the complaint filed by the new President was competent as it was not filed in accordance with the procedure laid down in that Act.  Section  200  of  the Bombay  Act  provided  that  the Standing  Committee and subject to the provisions of  sub-s. (3) the Chief Officer may order proceedings to be taken  for the recovery of any penalties and for the punishment of  any persons  offending against the provisions of  the  aforesaid Act.  This Court was of the opinion that the complaint which had  been filed by the new President was for initiating  the proceedings  for the punishment of Kanavi who  had  offended against  the provisions of sub-s. (2) of s. 23A and  as  the new President was not the Chief Officer and he had not filed the  complaint  under  any direction made  by  the  Standing Committee  the complaint could not be entertained.  In  that case  also the High Court had taken the view that s.  200(1) was  only  an enabling section which gave the power  to  the Standing Committee and the Chief Officer to make a direction for  taking  of proceedings and it could not be held  to  be exhaustive of the authorities who could make directions  for initiation of proceedings.  The High Court had taken  notice of  the  fact  that  there was  no  provision  in  that  Act forbidding  cognizance of offences being  taken except on  a complaint  made under a direction of the Standing  Committee or  the Chief Officer. , This is what was observed  by  this Court :-                       "We   are   unable   to   accept   the               interpretation  put  by the High Court  on  s.               200(1)  of the Act.  It is true that there  is               no  specific provision in the Act laying  down               that [1968] 3 S.C.R. 821. 936               cognizance of an offence under the Act is  not               to  be  taken except on a Complaint  filed  in               accordance  with  a direction  made  under  s.               200(1),  but  the scheme of the  Act  and  the               purpose  of this provision in s. 200(1)  makes

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             it  clear that the legislature  intended  that               such proceedings. should only be instituted in               the manner laid down m that sub-section.   The               word   "may"   was  used  only   because   the               legislature could not have enacted a mandatory               provision requiring the Standing Committee  or               the  Chief  Officer to make  a  direction  for               institution of proceedings in all cases.  This               word was intended to give a discretion to  the               Standing  COmmittee  or the Chief  Officer  to               make  directions for taking  proceedings  only               when they considered it appropriate that  such               a  direction  should  be  made  and  to  avoid               compelling the Standing Committee or the Chief               Officer  to make such direction in all  cases.               The   use  of  this  word  "may"   cannot   be               interpreted   as  laying  down  that,   if   a               proceeding  for punishment of any  person  for               contravention of any of the provisions of  the               Act is to be instituted, it can be  instituted               in  any  manner  without  complying  with  the               requirements of s. 200(1) of the Act.  If  the               interpretation  put by the High Court on  this               provision is accepted, it would mean that this               provision  was  totally  unnecessary,  because               there would be no need to confer power on  the                             Standing  Committee  or the Chief  Off icer  to               make such directions if such directions  could               be  made  or  proceedings  instituted  at  the               instance of any private individual.  We cannot               accept the submission that this provision  was               made  in  the Act simply by  way  of  abundant               caution.   In fact, if the provision had  been               made with such an object in view, there is  no               reason   why  the  power  should   have   been               expressed  to  be conferred  on  the  Standing               Committee  and the Chief Officer only and  not               on  the  President of the  Municipality.   We,               consequently, hold that, if any proceeding for               punishment of any person for contravention  of               any  of  the provisions of the Act  is  to  be               instituted,  it  must  be  instituted  in  the               manner  laid down in s. 200(1) of the Act  and               in that manner only." It may be mentioned that the expression of the above opinion was  based on a consideration of the previous  decisions  of this  Court.  Following the ratio of the above  decision  it would  be  legitimate  to hold that the  complaint,  in  the present  case,  could  be filed under Rule 16  only  by  the Secretary  of  the  Panchayat and by no one  else.   It  may be.pointed out that in the Act s. 213(3) is analogous to  s. 23A(3) of the Bombay Act.  On a parity of reasoning it could not be suggested that if there had been any 937 contravention of s. 213(3) any voter or member of the public could  have  filed  a complaint in  the  matter.  The  other provisions  also of the Act which follow, namely ss. 214  to 219 indicate that it was never contemplated that a complaint for  _infringe.me.at  or contravention  of  the  prohibition contained therein could be lodged before a magistrate having jurisdiction  under s. 233 by any private individual in  the presence  of a specific rule that the Secretary  shall  have the  power to file a complaint on behalf of  the  Panchayat. Most  of  these  sections i.e. ss.  217  and  218  postulate

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infraction  of  orders  of  the  Panchayat  for  which   the Panchayat  alone would be interested in filing a  complaint. We  axe satisfied that the scheme of the Act  also  supports the view which we are taking that a complaint could be flied only  under  Rule 16 of the  Mysore  Panchayat  Secretaries’ Powers and Duties Rules, 1961 and could not have been  filed by a private complainant.     The High Court seems to have relied on s. 236 of the Act which  deals with powers of police officers.   This  section provides  that  any  police officer may  arrest  any  person committing  in his presence any offence against any  of  the provisions of the Act or of any rule, regulation or  bye-law made  thereunder.   The person arrested has to  be  produced before the nearest magistrate within a period of 24 hours of arrest.   The police officer effecting the arrest must  give immediate  information to the Chairman or the  Secretary  of the Panchayat of the commission of such offence and give all assistance  in  the exercise of his lawful  authority.   The High  Court  was of the view that under  the  provisions  of this section the police officer could submit a charge  sheet under s. 173 of the Criminal Procedure Code after  necessary investigation for offences committed under the Act.  Chapter of  the  Act relates to establishment  and  constitution  of Panchayats.   There  are  certain sections in  it  which  by express words make offences committed under them  cognizable but  in the same Chapter there are other sections  which  do not  contain any such provision; for instance, ss. 15,  17,. 21  and  22 expressly provide that  the  offences  committed under them would be cognizable but ss. 16, 18, 19 and 20  do not contain any such provision.  In other words the offences committed  under them must be deemed to be  not  cognizable. Section 23 in the same Chapter says that no court shall take cognizance of an offence punishable under s. 16 or s. 17  or under  s.  19(2)(a) unless there is a complaint made  by  an order  of or under authority from the  Deputy  Commissioner. The High Court was, therefore, not right in saying that  all offences committed under the various provisions contained in the  Act  would be cognizable owing to  the  general  powers conferred on police officers by s. 236.  Indeed that section gives  only  a limited     power to the  police  officer  to effect  arrest if an offence is committed in  his  presence. There  is authority for the view that this will not make  an offence cognizable within the meaning of s. 4(f) 938 of  the Criminal Procedure Code; vide Public   Prosecutor(1) v.  A.V. Ramiah. In the absence of any express provision  in s.  220  with which we are concerned we  doubt  whether  the offence committed under it would be cognizable and a  police officer could carry on investigation in respect of it  under Chapter  XIV  of  the Criminal Procedure  Code  and  finally submit a charge sheet under s. 173 of that Code.     It  may also be pointed out that in the present case  we are not concerned with the powers which a police officer can exercise in respect of an offence committed under s. 220  of the Act.  What has to be seen is whether a private person or an  individual could file a complaint.  In the  presence  of Rule 16 and for the reasons given in K.M. Kanavi v. State of Mysore(2) we are of the opinion that it was the Secretary of the Panchayat who alone was competent to file the complaint. It  must be remembered that it would be the  panchayat  that would be largely interested in taking action against any  of its  members and employees for the contravention of s.  220. The  Secretary  would,  therefore, be  entitled  to  file  a complaint  on behalf of the panchayat.  The difficulty  felt by the High Court that a Secretary who is subordinate to the

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Chairman  may  find  it embarrassing  to  file  a  complaint against  him can hardly be accepted as a serious  hurdle  in the  way  of  coming  to the conclusion  at  which  we  have arrived.   The  Secretary  has  to  act  on  behalf  of  the panchayat  and  it is the panchayat that  would  be  vitally interested  in preventing and stopping any contravention  of provisions  like s. 220 of the Act.  The Secretary  acts  on behalf   of   the  panchayat  and  the   question   of   his subordination  to  any  of  its  office  bearers  is  of  no consequence.     In the view we have taken the appeal is allowed and  the conviction and sentence imposed on each of the appellants is set aside. G.C.                                      Appeal allowed.  (1) A.I.R. 1958 A.P. 392.  (2) [1968] 3 S.C.R. 821. 939