Wassoodew, J.:—

The petitioners Vishnu Tatyaba Naik and Shridhar Raoji Patil, who were respectively Sub-Overseer of the District Local Board. Nasik, and elected member of that Board and Chairman of the Works Committee, were prosecuted before the Resident First Class Magistrate of Manmad in the Nasik District for offences of cheating and falsification of accounts and abetment thereof, punishable under ss. 420 and 477A read with s. 114 of the Indian Penal Code. The prosecution alleged that the accused had dishonestly taken false measurements of certain work of repairs on the Kherdisatha-Nagarsul Road in the Yeola Taluka under their charge and fraudulently obtained from the President of the District Local Board Rs. 275-7-0 by tendering a bill with the measurement sheet containing the false measurements attached to it duly signed by accused No. 1 and countersigned by accused No. 2.

The accused raised a preliminary objection to the jurisdiction of the Court to try them on the ground that as the act complained of was done or purported to have been done in pursuance of the Bombay Local Boards Act or the rules under that Act for the time being in force, they were protected by the provisions of s. 136(2) of the Bombay Local Boards Act, 1923, as amended by Act XIII of 1935 and s. 197 of the Criminal Procedure Code. It was contended that as one month's previous notice in writing was not given of the intended prosecution, and that inasmuch as the act complained of was done more than three months before the date of the prosecution, the Magistrate could not proceed with the trial under the provisions of s. 136(2) of the Bombay Local Boards Act. The objection under s. 197 of the Criminal Procedure Code related to the charge against the member of the Local Board, and it was contended that he being a statutory public servant not removable from his office save by or with the sanction of the Local Government, the trial could proceed only upon a previous sanction of Government in regard to his official acts, and as the act complained of was such an act and as no sanction of Government was obtained for his prosecution, the Magistrate had no jurisdiction to try him.

That preliminary objection was disallowed by the learned Magistrate. In revision the learned Sessions Judge thought that the provisions of s. 136(2) of the Bombay Local Boards Act were inapplicable to the facts of this case, although possibly the prosecution under s. 477A of the Indian Penal Code could not proceed without the sanction of the local Government. But he also thought that difficulty could be overcome by obtaining the said sanction in the course of the trial. Accordingly the order of the trial Magistrate was maintained.

It has been urged for the petitioners that the question whether the alleged illegal act was done or purported to have been done in discharge of the official duty of the accused must be determined by reference to the nature of the allegations made in the complaint and the duties of the accused under the Act and the rules framed thereunder. The question whether an act complained of was done or purported to have been done in execution of statutory or official duty must necessarily depend entirely on the facts and circumstances of the case. In considering that question it will be convenient to deal with the functions and duties of the two accused separately. Dealing with accused No. 1, it is not denied before us that he, as Sub-Overseer of the Local Board, was, according to the rules of his employment, bound to supervise the works, to take measurements and to enter them in a measurement book maintained for the purpose. He was also to report to the District Local Board through the Works Committee, of which the second accused was the Chairman, the progress of the works in his charge and their measurements for the purpose of making payment to the contractor. It appears from the form of the bill, which was to be submitted by the contractor, that the Sub-Overseer was obliged to sign the bill in authentication of the measurements given in it and the charges made. It is not denied that the work in question was entrusted to a contractor by the Local Board and the contractor had preferred a bill under his signature for the amount stated therein. That bill was signed by the Sub-Overseer, accused No. 1, and countersigned also by the second accused as Chairman of the Works Committee. That bill was eventually sanctioned and paid by the Board on account of the authentication thereof. There is no doubt therefore that the signing of the bill and attaching a measurement sheet thereto and submitting the bill for payment was part of the official duty of the Sub-Overseer.

The duties of the Chairman of the Works Committee are laid down in the rules framed by the District Local Board under the Act. The Works Committee is appointed under the provisions of s. 38 of the Local Boards Act. The rules provide, among other things, that the Chairman should supervise the works that may be going on, fix the order in which the works sanctioned by the Board should be carried out, demand a programme of the works exceeding Rs. 500, take measurements and, in the absence of a completion certificate, countersign the bills of the contractor and see that the payment is made without undue delay. In his case too the act of countersigning the bill in authentication of the measurements and therefore the charges made was part of the official duty of the Chairman; and, it cannot be denied that the money said to have been obtained for payment of the bill was in fact obtained upon the guarantee provided by the countersignature and the accompaniment to the bill consisting of the measurements of the actual work done, for which the bill was preferred.

Upon those facts, assuming that there has been fraudulent and dishonest entry in the bill and its accompaniment in regard to the measurements of the work actually done and contracted for, the question is whether the accused could claim protection of the provisions of s. 136(2) of the Bombay Local Boards Act of 1923. That section says as follows:—

“(2) No suit, prosecution or other legal proceeding shall be commenced against any member, officer or servant of a local board, for anything done, or purporting to have been done, in pursuance of this Act, or any other law for the time being in force which entitles or requires a local board, member, officer, servant as such, … to exercise any powers or perform any duties without giving to such local board, member, officer, servant, … one month's previous notice in writing of the intended action and of the cause thereof, nor after three months from the date of the act complained of.”

The provisions of that section are in important respects analogous to the provisions of s. 197, sub-s. (1) of the Criminal Procedure Code and s. 270, sub-s. (1) of the Constitution Act. They serve the same object and are intended to protect public servants in the discharge of official duties. The interpretation of the provisions in the different enactments will therefore serve as a guide in the application of the principle which the decided cases may yield, to the facts of this case.

The authority on which the case was dealt with in the Courts below was R.K Naik v. Emperor, and I shall refer to that case presently, Among the other cases referred to in argument were Emperor v. Rudragouda, Rachangouda, Gurushidayya Shantivirayya v. Emperor(3) and Hori Ram Singh v. The Crown.(4) The learned Government Pleader has relied upon the case in Emperor v. Naik, for the view as expressed in one part of the judgment of the learned Chief Justice that where the act complained of is obviously prompted by dishonesty and is done in violation of the official duty, the protection afforded by the provisions of s. 136 of the Bombay Local Boards Act cannot be extended to it. That case was decided by reference, to the provisions of s. 136 of the Bombay Local Boards Act. There an administrative officer of a local board was prosecuted for cheating under s. 420 of the Indian Penal Code for submitting a false travelling allowance bill to the board, and it was held that the protection under s. 136 did not apply. There reference was made by the learned Chief Justice to Hori Ram Singh v. The Crown which was cited before him on behalf of the accused, but he thought that the case could be distinguished. In Hori Ram Singh's case there were two charges for which protection was claimed, one under s. 409 of criminal breach of trust and the other under s. 477A of the Indian Penal Code of falsification of accounts. The person charged was a Sub-Assistant Surgeon under the Punjab Government, and he had dishonestly misappropriated certain medicines entrusted to him in his official capacity and omitted to record certain entries in a stock book of medicines belonging to the hospital in his charge. The Court held that in respect of the charge under s. 409 the protection did not apply because the act complained of was not necessarily performed by the accused in his official capacity, but that as the act complained of under s. 477A was performed by the accused in his official capacity, the protection applied to the charge under that section. The ratio of the decision was that the maintenance of the accounts being part of the duty of the accused, when the latter in writing those accounts as part of his duty deliberately wrote them falsely or omitted to write them correctly, it was nevertheless an act done in purported execution of a statutory duty. The Court held that even if the act alleged was done in bad faith and was clearly a dereliction of the officer's duty, the officer was not necessarily deprived of the protection provided by the expression “act done or purporting to be done in the execution of his duty” in s. 270(1) of the Constitution Act. Mr. Justice Sulaiman has made in that connection the following observations (vide pp. 178-179):—

“Obviously the section does not mean that the very act which is the gravamen of the charge and constitutes the offence should be the official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The words as used is the section are not ‘in respect of any official duty’ but ‘in respect of any act done or purporting to be done in the execution of his duty’. The two expressions are obviously not identical… The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in, respect of an act done or purported to be done in execution of duty, that is, in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say, under the cloak of an ostensibly official act, though, of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another the impression that he is so acting.

“The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in the execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time.”

The application of the principle above enunciated is well illustrated by the learned Judge in the following remarks in dealing with the charge of falsification of accounts (vide p. 181):—

“Thus where it is his duty to maintain a record or a register, and in maintaining that register he makes some entries which are false to his knowledge, he is certainly purporting to act, though not actually acting, in the execution of his duty, because, he is making certain entries in the register knowing them to be false. He is ostensibly professing to be discharging his official duty in maintaining the register, which he is bound to maintain correctly. In making the entries he pretends or purports to act in the execution of his duty; but in point of fact he is acting in direct dereliction of it.”

In R.K Naik v. Emperor, the learned Chief Justice was not prepared to follow that case because he thought that the decision of the Federal Court could be distinguished from the case before him, first, because the Court there was dealing with s. 270 of the Government of India Act, whereas the case before him arose under s. 136 of the Bombay Local Boards Act, 1923, and, secondly, because the charge in that case was under s. 420 of the Indian Penal Code. Another ground for distinction was that the accused before him was not bound to claim any travelling allowance at all, and that therefore he was not entitled to the protection under s. 136 of the Bombay Local Boards Act.

The view adopted by this Court consistently in cases such as Emperor v. Rudragouda Rachangouda and Emperor v. Gurushiddayya Shantivirayya are clearly reconcilable with the view taken by the Federal Court of the protective provisions of the enactment. In the former case the act complained of purported to be in discharge of the accused's public duty, for the alleged forged order signed by the accused as President of the Taluka Local Board was an order which was required by the law to be signed by the President in his official capacity. In the latter case an officiating Kulkarni collected money on account of land revenue and instead of sending it to the Government Treasury used it for his own purpose. In that case it was an act done purely in his private capacity although by a public servant. It could by no manner of argument be said that using money entrusted to him for his private purpose was a duty cast on him by the rules of his office. Therefore no sanction was considered necessary.

Here, the principal ingredient in the offence of cheating was the false representation made to the District Local Board upon which the latter was induced to part with the money. That representation was made according to the complaint by means of a bill with an appendix containing a false measurement sheet. If that bill was fraudulently and dishonestly made and submitted which was the accused's duty to submit and in submitting it they appended a statement which was false to their knowledge, they were certainly purporting to act, though not actually acting, in pursuance of the Act. It cannot be denied, as I have already said, that under the rules which are made under the Act and which in my opinion must be regarded as part of the Act, it was the duty of both the Sub-Overseer and the Chairman to sign and countersign the bill respectively in order to enable the contractor to claim, and the District Local Board to pay, the amount stated in the bill. It is therefore difficult to resist the inference that the preferring of the bill was an official act and it did not make any difference that in the discharge of the official duty a fraudulent statement was inserted in the bill. Therefore, in my opinion, the act complained of, namely, the fraudulent and dishonest representation by means of the bill and measurement sheet, would be protected under s. 136 of the Bombay Local Boards Act. There is no doubt that the member is also entitled to protection under s. 197 of the Criminal Procedure Code. He is a statutory public servant according to s. 135 of the Bombay Local Boards Act, and the act complained of was done or purported to be done in the exercise of his official duty. As a member is not removeable without the sanction of the Local Government under s. 31 of the Act, the sanction of that Government would be necessary for his prosecution under s. 197 of the Criminal Procedure Code. Therefore I think the rule in his revisional application must be made absolute and the proceedings pending before the Resident First Class Magistrate of Manmad quashed.

Broomfield, J.:—The lower Courts have relied on a dictum of the learned Chief Justice in R.K Naik v. Emperor. In that case referring to s. 136 of the Bombay Local Boards Act he said (p. 32):—

“In my view these protection clauses, which are so commonly inserted in Acts conferring powers on public authorities or their officers, were never intended to protect a dishonest rascal from the consequences of his rascality. They are only intended to protect people who from excess of zeal, or negligence, or other cause exceed their powers.”

I doubt if the learned Chief Justice intended to lay this down as a rule to be followed by the Courts in India without qualification. To do so would clearly be contrary not only to the decision of the Federal Court referred to and distinguished by the learned Chief Justice in his judgment, Hori Ram Singh v. The Crown, but also to several decisions of this Court which have been cited in the argument before us.

The Federal Court were dealing not with s. 136 of the District Local Boards Act, nor with s. 197 of the Criminal Procedure Code, but with s. 270 of the Government of India Act. But when the same or exactly similar words are used in statutory provisions which appear to have a similar object, it would be very difficult to say that they should not be interpreted in the same way. The principle which the Federal Court laid down in Hori Ram Singh v. The Crown may be stated to be this. If the act alleged to be criminal is done by a public servant in his official capacity, that is, if it is an act which it is his duty to do as such public servant under the law governing the case, he is protected, although, by reason of the fact that he has done the act dishonestly or fraudulently or in any other manner contrary to the law, he may have committed a criminal offence. On the other hand, if the offence charged involves an act or acts which the accused is not required to do and which are outside his official duties, the liability to prosecution is unfettered.

The cases to which we have been referred in the course of the argument may all be explained, I think, by the application of very much the same principle. In Emperor v. Gulabmiya it was held that sanction under s. 197 of the Criminal Procedure Code was not necessary for the prosecution of an official liquidator for misappropriation of money coming into his custody as liquidator, the reason being that in misappropriating money he did not purport to act as a public servant. The act was outside his duties. In Nhamesaheb Ahmedsaheb v. Dattatraya Jagannath it was held that sanction was necessary for the prosecution of the Chairman of a District School Board for the offence of forgery of the minutes of a meeting of the Board. Here the charge was clearly in respect of an official act. In Emperor v. Rudragouda Rachangouda sanction was held necessary for a prosecution for forgery in respect of an order signed by the President of a Taluka Local Board in his official capacity. There also obviously the prosecution was in respect of an official act. Lastly, in Gurushidayya Shantvirayya Kulkarni…(Original Accused), Applicant; v. Emperor* it was held that sanction under s. 197 of the Criminal Procedure Code was not necessary for the prosecution of a Village Kulkarni for the offence of breach of trust. That was the same kind of case as Emperor v. Gulabmiya.

But, if the principle laid down by the Federal Court, which, as I say, appears to have guided this Court in a number of cases in the past, is applied in the present case, it seems to me to be clear that the accused must be held to be protected by s. 136, cl.(2) of the Bombay Local Boards Act, and in the case of accused No. 2 by s. 197 of the Criminal Procedure Code. My learned brother has stated what is alleged in the charge-sheet against the accused. The gist of the charge is that by false pretences they induced the District Local Board to part with a certain sum of money. The false pretences consisted of the false measurements and the false bill which were prepared by the accused in their official capacity.

The learned Government Pleader, who opposes this application, has conceded that so far as the offence of falsification of accounts under s. 477A of the Indian Penal Code is concerned, sanction would be necessary under s. 197 of the Criminal Procedure Code. He contends, however, that the offence of cheating with which the accused are also charged is a distinct offence and that on the authorities no sanction is necessary for the offence of cheating; nor does s. 136, cl. (2), apply to it. But I am unable to see how the two charges in the present case can be kept distinct. They seem merely to be different aspects of the same transaction. Apart from the entries in the measurement book and the bill which the accused are alleged to have falsified, there would have been no false pretences to support the charge of cheating. It seems to me to be a case in which the official capacity of the accused is involved in the very acts complained of, to use the language of Mr. Justice Varadachariar in Hori Ram Singh v. The Crown. That is so in respect of both the charges. I agree therefore with my learned brother that the rule must be made absolute in this case and the proceedings against both the accused quashed.

Rule made absolute.

Y.V.D