' , , K. BRAHMA SURAIAH & Anr. v. LAKSHMINARAYANA November 26

Appeal by special leave from the judgment and order dated March 30, 1966 of the Mysore High Court im: 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 judg- · ment of the Mysore High Court in which the only point involved is whether a private complaint could be entertained for the com mission of an offence under s. 220 of the Mysore Village Pan chayats & 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 afore- said section and sentenced to pay a fine of Rs. 50 and Rs. 40 and in default to undergo 7 days and 5 days' simple imprisonment respectively. D E F 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 Rs. 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 G of a panchayat shall directly or indirectly bid for or acquire in terest in any movable ·or immovable property sold at such sale :in connection therewith. If any person contravenes this provi- sion he is to be punished, on conviction, with a fine which may extend to Rs. 500/-. Under Rule 16 of the Mysore Pancbayat Secretaries' Powers and Duties Rules, 1961 promulgated under H 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 . ' A 8 t J ~ G other than the Secretary from filing a complaint but it only debar red 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 Panchayat.

" Jn K. M. Kanavi v. The State of Mysore(') the appellant Kana vi, who was the president of Municipal Borough of Gadag Betgeri had been removed from J>residentship. He refused to hand over the charge of all the papers and property which were in his pos session 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 compaint 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 Com mittee and subject to the provisions of sub-s.

(3) the Chief Officer may order proceedings to be taken for the recovery of any penal ties and for the punishment of any persons offending against the provisioas 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 Com mittee the complaint could not be entertained. In that care 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 proceed ings 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 provi sion in that Act for~idding cognizance of offences being except on a complamt made under a direction of the Standing Committee or the Chief Officer. This is what was observed by this Court : - • . ' H "~e are unable to accept the interpretation put by It is true that the High Court on s. 200(1) of the Act. there is no specific provision in the Act laying down that [19681 3 S.C.R. 821. the Act is not to be . cognizance of an offence under 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 ins. 200(1) makes it clear that the legislature intended that such proceed ings should only be instituted in the manner laid down in ·that sub-section. The word "may" was used only because the legislature could not have enacted a man datory 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 direc tion should be made and to avoid compelling the Stand ing Committee or the Chief Officer to make such direc tions 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 instiriited in any manner without complying with the requirements of s. 200(1) of the Act. If the interpreta tion put by the High Court on this provision is accep ted, it would mean that this provision was totally un necessary, because there would be no need to confer power on the Standing Committee or the Chief Officer 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 abun dant 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, conse quently, 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. 2_13(3) is. analogous to s. 23A(3) of the Bombay Act. On a panty of reasoning it could not be suggested that if there had been any • , . ,A .. ,. A • B • • • ' • K. B. SURAIAH v. LAKSHMINARAYNA (Grover, I.) 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 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 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 postu late infraction of orders of the Panchayat for which the Panc:J!ayat alone would be interested in filing a complaint.

We are satisfied that the scheme of the Act also supports the view which we are taking that a complaint could be filed only under Rule 16 of the Mygore 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 dITested 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 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 II 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 In other words the and 20 do not contain any such provision. offences committed under them must be deemed to be not comiz able. Section 23 in the same Chapter says that no court ~hall take cognizance of an offence punishable under s. 16 or s. 17 or under s. 19(2)(aJ. unless there is a complaint made by an order of or under authonty from the Deputy Commissioner. The Hicrh C<;>urt was, therefore, not right in saying that all offences coi':i m1tted under the various provisions contained in the Act would be cognizable owing to the general powers conferred on police Indeed that section gives only a limited officers by s.

23.6. power to the police officer to effect arrest if an offence is com m.itted 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 SUPREME COURT REPORTS [1969) 2 S C.R. of the Criminal Procedure Code; vide Public Prosecutor(') v. A A. V. Ramiah. In the. absence of any express provision in s. 220 with which we are· concerned we doubt whether the offence com mitted 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. B 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 In the presence of Rule 16 ahd for the reasons file a complaint. given in K. M. Kanavi v.