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."

Sanction for the prosecution was, however, given in this case by the Collector and not by the Government under powers purported to have been delegated to him under s. 127 of the Madras Act which provides :

"127. (1) The Government may, by notification, authorize any authority, officer or person to exercise in any local area, in regard to any panchayat or any class of panchayats or all pancbayats in that area, any of the powers vested in them by this Act except the power to make rules; and may in like manner withdraw such authority.

The High Court held that no sanction of the Government was necessary as the appellant had ceased to hold the office of President when the prosecution was launched and further that the sanction of the Collector was sufficient in law. The question of law involved in this appeal is whether the sanction of the Government under S. 106 of the Madras Act is necessary for the prosecution of the appellant for the offence under s. 409, Indian Penal Code.

On behalf of the appellant it was contended that the sanction granted by the Collector was not valid in law and sanction should have been given under s. 106 of the Madras Act by the State Government. It was submitted that s. 127(1) of the Madras Act has not authorised the Government to delegate the power for granting sanction under S. 106, to the Collector, and that what was delegated was the power of the State Government in respect of any panchayat or any class of panchayats or all panchayats in any local area, but the power under S. 106 that could be exercised was only a power in regard to the President or any member of the panchayat. It was therefore submitted that the Government did not delegate its powers under S. 106 of the Madras Act by virtue of the authority conferred under S. 127(1). It is not necessary for us to express any concluded opinion on the argument put forward by the appellant, for we consider that no sanction of the Government under s. 106 of the Madras Act is necessary for the prosecution of the appellant on the charge under s. 409, Indian Penal Code, and the conviction of the appellant on that charge is not invalid on this account.

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Hori Rain Singh v. Emperor(1) was a decision of the Federal Court on the necessity for sanction under s. 270 of the Government of India Act, 1935, which is similar to s. 197(1) of the Code of Criminal Procedure and S. 106 of the Madras Act. The facts in that case were that a Sub-Assistant Surgeon was charged under s. 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under s. 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution under s. 270 of the Government of India Act. The question for decision in that case was whether such sanction was necessary. It was held by the Federal Court that the charge under s. 477-A required sanction, as 'the official capacity is involved in the very act complained of as amounting to a crime'; but that no sanction was required for a charge under s. 409, because 'the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation

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or conversion, which is the act complained of. In Gill v. The King(2) the question arose directly with reference to s. 197(i) of the Criminal Procedure Code. In that case the accused was charged under S. 161 with taking bribes, and under s. 120-B with conspiracy. On the question whether sanction was necessary under s. 197(1) it was held by the Judicial -Committee that there was no difference in scope between that sanction and section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh v. Emperor(1) Lord Simonds observed in the course of his judgment at page 40 of the Report

"In the consideration of s. 197 much assistance is to be derived from the judgment of the Federal Court in Hori Ram Singh v. The Crown (1939) F.C.R. 159, and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar, J. Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus

a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining,

(1) [1939] F. C. R. 159. (2) [1948] F.

C. R. 19.

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though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held. Without further examination of the authorities their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited, think it sufficient to say that in their opinion no sanction under s. 197 of the Code of Criminal Procedure was needed."

The view expressed by the Judicial Committee in Gill v. The King(1) was followed by the Judicial Committee in the later cases; Albert West Meads v. The King(2) and Phanindra Chandra v. The King(3) and has been approved by this Court in R. W. Mathams v. State of west Bengal(4). It is not therefore every offence committed by a public servant that requires sanction for prosecution under s. 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly

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concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by s. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. The same principle has been expressed by this Court in Om Prakash Gupta v. State of U.P.(5) in which it was pointed out that sanction to the prosecution of a public servant under S. 409 of the Indian Penal Code 'is not necessary since the public servant is not acting in his official capacity in committing criminal breach of trust. In a later case--Satwant Singh v. The State of Punjab(6), it was held that if a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty. The same view his been taken by this Court in a later decision-Baijnath Gupta and Ors. v. The State of Madhya Pradesh(7), and it was held that the sanction of the State Government was not necessary for the prosecution of

(1) [1948] F.C.R. 19. (2) 75 I.A. 185.

(3) 76 I.A. 10. (4) [1955] 1 S.C.R. 216.

(5) [1957] S.C.R. 423. (6) [1960] 2 S.C.R. 89.

(7) [1966] 1 S.C.R. 210.

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the appellant under s. 409 of the Indian Penal Code because the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in discharge of his official duties and that offence had no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an oppor- tunity of committing the offence.

Section 106 of the Madras Act is similar in language to s. 197 of the Criminal Procedure Code and for the reasons already expressed we are of the opinion that the sanction of the State Government was not necessary for prosecution of the appellant under S. 409, Indian Penal Code. We accordingly reject the argument of learned Counsel for the appellant on this aspect of the case and dismiss this appeal.

Criminal Appeal No. 131 of 1964

This appeal is brought, by special leave, from the judgment of the Madras High Court dated December 3, 1963 in Criminal Appeal No. 72 of 1962 convicting the appellant of the offence under s. 409, Indian Penal Code and sentencing him to rigorous imprisonment for 6 months.

The question of law involved in this appeal is the same as in Criminal Appeal No. 130 of 1964 and for the reasons given in that case we hold that the sanction of the Government is not necessary for prosecution of the appellant under s. 409, Indian Penal Code and the conviction of the appellant on that charge is not defective in law",. This appeal also must be dismissed.

R.K.P.S. Appeals dismissed.

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