1. This is an application for revision by Gurushidayya Shantvirayya Kulkarni who has been convicted of an offence of criminal breach of trust under Section 409 of the Indian Penal Code and sentenced to three months' rigorous imprisonment. An appeal against the conviction was summarily dismissed by the Sessions Judge of Belgaum.
2. The applicant is the officiating kulkarni of the village of Mugbasav in the Sampgaon taluka, and the only question that arises in this revision application is whether the proceedings against him are void and illegal because the sanction of Government was not obtained for the prosecution. Under Section 58 of the Bombay Hereditary Offices Act an officiating kulkarni may be removed from office by the Collector but only with the previous sanction of the Provincial Government. He is therefore a public servant who is not removable from his office save by or with the sanction of the local Government, and so far Section 197 of the Criminal Procedure Code applies. But the sanction of Government under that section is only required for a prosecution when a person is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The offence here consisted in this, that the accused collected money on account of land revenue and, instead of sending it to the treasury, used it for his own purposes.
3. It was held in Emperor v. Gulabmiya : (1930)32BOMLR1134 that a liquidator appointed under the Bombay Co-operative Societies Act, 1925, who misappropriated money which had come into his custody as liquidator could not be said to be acting or purporting to act in the discharge of his official duty and that therefore he could be prosecuted for misappropriation without sanction under Section 197, Criminal Procedure Code. In my judgment in that case I have referred to several authorities both of our own High Court and the Madras High Court. In the argument of this case we have been referred to a recent decision of a full bench of the Rangoon High Court, Emperor v. Maung Bo Maung AIR (1935) Ran. 262. to the same effect.
4. In Emperor v. Kalu Mahadu (1926) 29 Bom. L.R. 707 it was held that the sanction of Government was necessary before a revenue patil could be tried for embezzlement in connection with his official duties. But the facts there were that the patil was accused of cheating in that he submitted a false report which he had to submit as patil. In that case then it could be said that he purported to act as a public servant. It may also be noted in connection with this case that Government was not heard, no reasons were given for the decision on the particular point, and there was no real discussion of it.
5. The learned advocate who appears for the applicant has drawn our attention to Emperor v. Rudragouda Rachangouda (1936) 39 Bom. L.R. 70 where it was held that sanction under Section 197 of the Criminal Procedure Code was necessary for the prosecution of the president of a taluka local board. The offences alleged against the accused in that case were forgery and embezzlement (Sections 466 and 409 of the Indian Penal Code). The offence of forgery was in respect of an order passed by the accused as president of the taluka local board directing certain work to be done. It was obvious therefore that the order in question purported to have been passed by him in his official capacity. So far as that offence was concerned sanction under Section 197 was indubitably necessary and that being so this Court thought it unnecessary to examine the further question whether the other act alleged against the accused, i.e. the offence under Section 409 of the Indian Penal Code, was also done or purported to be done by him in the discharge of his official duty. There is therefore nothing in this case which is inconsistent with the ruling in Emperor v. Gulabmiya.
6. We hold, therefore, that the sanction of Government was not necessary for this prosecution and discharge the rule.