1. This is a case which raises points of some difficulty and considerable interest. The facts are these: The accused Shaik Abdul Kadir was the Chairman of the Pallapatti Union Panohayat in the Trichnopoly District. He was prosecuted for an offence under S. 409, I.P.C, S. 409 is this: (I am reading the material portions):

“Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant or in the way of his business as a, banker, merchant factor” certain other persons are enumerated) “commits criminal breach of trust in respect of that property shall be punished with transportation for life….”

2. While I am on that section may just as well mention other sections in that chapter dealing with criminal breach of trust, S. 405 defines criminal breach of trust and it contains illustrations of which I, need only say this: that illustration (c) refers to the case of an agent who is one of the persons enumerated in S. 409, and illustration (e) is the case of a Revenue Officer entrusted with public money, which is exactly the case of the accused in the present case. S. 406 is to this effect:

“Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.”

3. It is admitted that the accused is a public servant, and thereupon it becomes necessary to look at Section 197 of the Cr PC, to see whether or no his case falls within that section. S. 197 is a follows:

“When any Judge, or any public servant not removable from his office without the sanction of the Government of India or the Local Government, is accused as such Judge or public servant of any offence, no Court shall take cognizanoe of such offence, except with the previous sanction of the Government having power to order his removal, or of some officer empowered in this behalf by such Government, or of some Court or other authority to which such Judge or public servant is subordinate, and whose power to give such sanction has not been limited by such Government.”

4. It is conceded, as I say, that the accused is a public servant, and the next question is whether he is a public servant who is not removable from his office without the section of the Government. The power of removal is vested in the Local Government by Section 126 of the Madras Local Boards Act (5 of 1884). By S. 160 of the same Act the Local Government have the power to authorize any person to exercise any of the powers vested in the Government by the Act to delegate, for instance, the power to remove the chairman of the panchayat to any officer they may select by notification so to do. In fact by a notification of 17th May 1894 the power of removal of a chairman of a panchayat has been delegated by the Madras Government to the President of the District Board in the district in which the panchayat is situated. Now it is argued in the first place that, by that act of delegation on the part of the Government the accused became ipso facto removed from the category of persona who are not removable from office without the section of the Government of India or the Local Government; because it is argued that by the act of delegation he becomes removable by a third authority, namely, the President of the District Board. To, my mind that argument is unsound; and, in my opinion, the delegation by the Local Government of its power to a special officer only means that the Local Government performs that act itself through the medium of a particular officer as the channel through which it is done; and it is an ordinary case of qui facit per aliurn facit per se. It is no doubt done in accordance with that delegation, but nevertheless it remains the act of the Local Government. I am therefore of opinion that the accused has established that he is within the meaning of this section a public servant not removable from his office without the sanction of the Local Government. To follow up the section, the next point is that he must be accused as such public servant of any offence. On that it was strenuously argued by Mr. Nugent Grant that in this case this was not an accusation against this accused of an offence committed qua public servant. The way that matter stands is this: The requirement of S. 409, I.P.C, is that the accused being in any manner entrusted with “property in his Capacity of a public servant,” should commit criminal breach of trust in respect of that property. It is quite obvious that he cannot be amenable to the punitive provisions of S. 409 unless he commits criminal breach of trust in respect of property with which he has been entrusted in his capacity of public servant. But it is said that the offence committed is criminal breach of trust and nothing else, that criminal breach of trust as defined by the Act can be committed by anybody and that the fact that when the money comes into the accused's hands by reason of his position as a public servant, the crime entails a heavier penalty, does not make the offence different from the offence when committed by anybody else. It is maintained that he could perfectly well be charged under S. 406 without the aggravating circumstances, that the public position which he occupies and by virtue of which he gets funds into his hands does not alter the quality of the criminal offence, which is and always has been criminal breach of trust and nothing else, but only enhances the punishment and that is not an offence committed by him as a public servant within the meaning of Section 197 of the Cr PC. On that question certain authorities were referred to and the first was In re Gulam Mahomed Sharf-ud-daulah(1), a decision of a learned Judge of this Court. That was a case where a Judge of the Small Cause Court was alleged to have used defamatory language towards some other person while he was sitting as Judge upon the Bench. Parker, J., before whom it came held that was an offence which could not be complained of without sanction under S. 197. The learned Public Prosecutor while drawing, my attention to that case stated very frankly that he did not place much reliance upon it; and I think it is quite obvious that it is impossible to hold, putting aside questions of criminal breach of trust—it is impossible to hold that where a Judge commits an ordinary offence from the Bench which could be committed by anybody and which entails consequences neither in the way of penalty nor any thing else is the least different, because a. Judge committed it, from what it would entail if committed by any body else, sanction is required for his prosecution. To hold so is wholly incongruous and opposed to the true construction of S. 197. Later, the matter came up before a Bench in Calcutta in Nando Lal Basak v. N.N Mitter(2) That again was a case where a Magistrate was alleged to have used defamatory and insulting language to a pleader.

5. The learned Judges held without difficulty that no sanction was required and differed from the view taken by Parker, J., in In re Gulam Mahomed Sharif-ud-dulah and they proceeded to lay down certain standards as to when sanction was required in such cases and they quote with approval an expression of opinion by Meld, J., in an earlier unreported Calcutta case in which he says this: “Para. 1 of S. 466” (of the Code of 1872 which corresponds to the present S. 197).

“was intended to apply to these cases in which the offence charged is an offence which can be committed by a public servant only, cases that is, in which he being a public servant is a necessary element in the offence.”

6. I accept that as a perfectly accurate statement of the law but it does not solve the difficulty here. There are a large number of offences, some of which are contained in Chap. 9, I.P.C, which can be committed by public servants and by public servants only. There are a large number of other cases which are not grouped under that heading as being offences by public servants but which are grouped together under S. 217, I.P.C, and the following section where being a public servant is a necessary ingredient of the offence. S. 217 is as follows:

“Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, etc.”

7. It is contended that Section 197 of the Cr PC, only applies to cases where the offence can only be committed by a public servant, and it is argued that S. 409, I.P.C, is of an entirely different character, because the offence is the offence of criminal breach of trust and the only reason for which the averment that the accused is a public servant is necessary is in order to enable the Court to pass upon him, if convicted, the greatly enhanced sentence under S. 409 as against the comparatively mild punishment of three years under S. 406. I think it is an extremely difficult question to decide. In my view the authorities really do not decide the point. Assuming Nando Lal Basak v. N.N Mitter to be good law and assuming the case which followed it, Municipal Commissioners for the City of Madras v. Major Bell(3), to be good law also, as I read them they really do not throw any light on the precise question I have to consider, namely, whether an offence is committed by a person as a public servant when the Statute says that he commits the same offence as any other person but the property in respect of which he commits criminal breach of trust comes into his hands as a public servant. As I say, it is a matter of first impression. My own opinion on the whole inclines to the view put forward by the learned Public Prosecutor in this case, and I think the wording of the section lends colour to that view. The words are:

“Whoever, being in any manner entrusted with property, in his capacity of a public servant, commits criminal breach of trust.”

8. That wording seems to me to show that the capacity of public servant is only material in what I may call the preliminaries of the crime; you only want to use his capacity as a public servant to put him in possession of the moneys and he is classed in the same category as a banker, a merchant, a factor or broker or attorney or agent. The section then goes on to say:

“Whosoever being entrusted with money in this way commits criminal breach of trust shall be punished with transportation for life.”

9. I think on the whole that even if it is a necessary averment to say that he was a public servant and not a mere matter of proof, nevertheless the offence is the offence of criminal breach of trust, and that it is not an offence which is committed by him in his capacity of public servant as such, his capacity of public servant being only that which puts him, so to speak, in a position in which such an offence can be committed. That is the best opinion I can form on it, and I do not put it forward with any great confidence because it is a question of considerable difficulty and very near the line. But other questions under the section still remain to be considered. The next point is, assuming that I am wrong in thinking that sanction is not required for the prosecution of this offence, was a sanction given in this case which complies with the requirements of the section? What happened was this: A document was signed and sent by the President of the Taluk Board to his subordinate clerk in the Taluk Board Office directing him to prefer a complaint against the accused, and as the question turns on what exactly the document said and effected, I will read it. It says:

“As there is room for suspicion that the Chairman of the Pallapatti Union has embezzled Union collections amounting to about Rs. 3,000 odd, C. Subramania Pillai, Actlng 2nd Clerk, Taluk Board Office, Karur, is directed to proceed at once to Pallapatti, take charge of all the Union accounts and records pertaining to the collections, find out the actual amount collected but not remitted into the Treasury and prepare a complaint to the police;”

and it is initialled by the President of the Taluk Boark. It is not disputed that document emanated from the proper President of the Taluk Board. One matter I may deal with at once. It is said that apart from any other question, that is not a sanction, which by its terms and its nature fulfils the requirements of the section, even assuming that the person who gave it, was in fact the proper person designated by the Statute to do so. With regard to that, reference was made to the case of Queen-Empress v. Samavier(4). There the Board of Revenue had passed a resolution authorizing the Collector of a particular District to prosecute a Deputy Tahsildar.

“for bribery or such of the charges set forth in the Deputy Collector's report as he thinks likely to stand investigation by a Criminal Court”.

10. It is not difficult to say that sanction in that form must be invalid and was rightly held to be invalid, because so far from the Board of Revenue themselves taking responsibility of ordering the prosecution in this matter, they left it entirely to the discretion.

“of a subordinate officer, who possessed no such power of sanction, to pick out such charges or offences as he liked and proceed on what in his discretion and not the Board's discretion were the charges to be preferred.”

11. But though that is the actual decision, learned Judges in that case did undoubtedly use expressions which give colour to the contention that the sanctioning officer must in terms specify the exact charges to be brought and not leave it in general language to be inferred what the charge should be. What the learned Judges Bay is this:

“The sanction required under Section 197 of the Cr PC must be granted with reference to some specific offence with which the accused is charged in his capacity as a public servant, and the intention of the Legislature clearly was that the authority empowered to grant the sanction should take the responsibility of deciding there were reasonable grounds for prosecuting such public servant for such offence.”

12. That part of the judgment I am not concerned with and I need say nothing about it. Then they say that the words of the sanction.

“point to a deliberate intention on the part of the Legislature to throw upon the authority empowered to grant the sanction the duty of designating the offence for which leave to prosecute is given, and this duty cannot be delegated.”

13. It is said that in this particular case this document, which is relied upon as the sanction did not designate the offence with which the accused was to be charged. I must say that I think it is a great pity that the officers who issue documents of this kind do not take the precaution to specify in the language of the Code, with which they must be a great deal more familiar than I am, the offence for which they wish and direct the prosecution to take place. But in fact I do not think this can be regarded as ambiguous, because it begins with the statement that:

“there is room for suspicion that the chairman of the Pallapatti Union has embezzled Union collections amounting to Rs. 3,000 odd,”

and then there is a direction to the clerk to prefer a complaint. As far as I can see there is no other section to which my attention has been drawn by Dr. Swaminadhan. This act, namely, embezzlement by the Union Chairman of the Union Collections in his hands can only indicate an offence under and therefore, a prosecution under S. 409; and, so far as I can see there is no possible section of the Code under which the clerk could have taken this as a direction to prosecute other than S. 409. On this ground I am prepared to hold that the sanction so far as that alleged flaw in it is concerned, is a good direction to the clerk to prosecute under the section under which the complaint has been actually launched. The next point taken is this. It is said that assuming that to be a good sanction so far as the form of it is concerned, it cannot stand because it is signed by the wrong person. The facts relating to that question are as follows: The words of the section are that there must be:

“the previous sanction either of the Government having power to order his removal or of some officer empowered in this behalf by such Government.”

14. That is the first part. It is argued by the learned Public Prosecutor that the words “empowered in this behalf” do not mean empowered to give a sanction, but mean empowered to order his removal. We have already seen that under the Madras Local Boards Act the power to remove this officer has been delegated to the President of the District Board. It is not disputed if that is the true construction of the Statute that the person who has to give the sanction is the officer who is empowered to remove him by the Government. Then there is another document besides the one I have referred to, a confirming document by the President of the Taluk Board giving sanction to prosecute this accused. But in my opinion, no question tarns upon that because I am not prepared to adopt the construction of the Statute suggested by the learned Public Prosecutor, and I think “empowered in this behalf” in S. 197 means empowered to give sanction for prosecution. The difficulty in the way of the prosecution as far as these words are concerned is this. No officer has been empowered by the Government to grant sanction. All that has been delegated by the Government is the power not to institute proceedings but to dismiss the officer, and therefore if the sanction was supposed to rest upon the power of the President of the District Board to remove under this part of the section in my opinion it would fail. But the section goes on:

“or of some other authority to which such public servant is subordinate and whose power to give such sanction has not been limited by such Government.”

15. On these words the case is shortly this. This chairman of the Union is within the meaning of this section a public servant subordinate to another authority, namely, the President of the Taluk Board. It is very difficult. I am not familiar enough with this legislation to follow the exact scheme of a complicated Act like the Madras Local Boards Act with its different classes of Boards, District Boards, Taluk Boards and Union panchayats; but one S. 143 seems to be almost conclusive by itself on this subject because what it says is this: “The panchayat and its chairman,” that is, a person in the position of the accused:

“shall subject to the control of the Taluk Board and of its President, respectively, have and exercise in the union all the powers conferred on the Taluk Board and its President, respectively by Ss. 99, 100, 101.”

and so forth. That section seems to me to use language which is quite inconsistent with any other position than this, that the chairman of a panchayat is in the fullest sense subordinate to the authority of the President of the Taluk Board. It seems to me that the words that he shall exercise his functions subject to the control of the Taluk President are quite inconsistent with any other view. That being my opinion, it follows that the President of the Taluk Board has given sanction for this prosecution and that sanction is adequate and he is proper person to give the sanction under the section and I so hold. The result is that the petition fails and is dismissed and the case must take its course.

S.N/R.K

16. Petition dismissed.