PHILOMENA DHANIN Vs STATE OF RAJASTHAN .
Bench: H.L. GOKHALE,J. CHELAMESWAR
Case number: Crl.A. No.-001918-001918 / 2013
Diary number: 34279 / 2011
Advocates: V. K. SIDHARTHAN Vs
PRAGATI NEEKHRA
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1918 OF 2013
(Arising out of SLP(Crl.) No.9968/2011)
PHILOMENA DHANIN (DEAD) BY L.RS. Appellant(s)
:VERSUS:
STATE OF RAJASTHAN & ORS. Respondent(s)
O R D E R
Heard Mr. Amit George, learned counsel in
support of this appeal, Mr. Ram Naresh Yadav,
learned counsel for the State of Rajasthan and Mr.
Rishabh Sancheti, learned counsel appearing for the
contesting respondent No.3. Leave granted.
2. The appellant herein has grievance against
respondent No.3 who is the Sarpanch of Village
Dhanin, District Rajsamand in the State of
Rajasthan. It is the case of the appellant that her
restaurant was demolished by respondent No.3 and her
husband the second respondent herein. Therefore, she
initiated necessary proceedings before the
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Magistrate's Court. Respondent Nos.2 & 3 filed a
petition under Section 482 of the Code of Criminal
Procedure before the Rajasthan High Court being
Criminal Miscellaneous Petition No.758 of 2007, for
quashing the proceedings initiated before the
Magistrate's Court, contending that as far as
respondent No.3 is concerned, the demolition was in
discharge of the official duties of respondent No.3
as a public servant and prior sanction of the State
Government was to be obtained and therefore she
could not be prosecuted. The High Court quashed the
proceedings as against respondent No.3. The High
Court, however, held that the matter will proceed
against respondent No.2, husband of respondent No.3.
3. Being aggrieved by that order passed by the
High Court, this appeal has been filed. Learned
counsel for the appellant pointed out that
protection under Section 197 of Cr.P.C. is not
available against illegal acts. It is available only
to the public servant who cannot be removed from the
office except with prior sanction of the State
Government. The respondent No.3 would not fall under
this category.
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4. Learned counsel appearing for respondent No.3
contended that under the State Amendment to Section
21 of the Indian Penal Code, a Sarpanch is to be
considered as a public servant. Counsel for the
appellant on the other hand, pointed out that the
removal of respondent No.3 can be done by passing a
resolution in the Panchayat under Section 37 of the
Rajasthan Panchayats Act. That being so, in our
view, the High Court erred in passing the order. We
set aside the order passed by the High Court. The
proceeding arising out of FIR No.111 of 1997 under
Sections 447, 336, 426 & 120 of the Indian Penal
Code initiated by the appellant against respondent
No.3 will be restored and decided on its own merits.
The appeal is allowed accordingly.
.........................J (H.L. GOKHALE)
...........................J (J. CHELAMESWAR)
New Delhi; November 11, 2013.