1. The applicant in this case is an he norary organiser of Co-operative Credit Societies and was appointed as such by Government. The Registrar of Co-operative Credit Societies appointed him liquidator of the Malegaon Seed Society, this appointment being made under Section 47 of the Bombay Co-operative Societies Act VII of 1925, It is alleged that he misappropriated a sum of Rs. 100 which came into his possession as liquidator and he has been prosecuted for an offence under se. 408 and 409 of the Indian Penal Code.
2. A preliminary objection was raised that the sanction of Government was necessary before he could be prosecuted under Section 197 of the Criminal Procedure Code. It was contended; firstly, that as organiser of Co-operative Credit Societies he was appointed by Government and was not removeable from this office, except by or with the sanction of Government, and, therefore, sanction for the prosecution was required on that ground. Secondly, it was argued that as liquidator he was a Judge within the definition in Section 19 of the Indian Penal Code. This objection has been overruled by the trial Magistrate, and also in revision by the Sessions Judge The applicant now comes to this Court for revision of the Sessions Judge's order.
3. There is clearly no force in the argument that sanction is required under Section 197 by reason of the applicant's position as organiser. That point has been quite convincingly dealt with by the Sessions Judge. He says:
It is not necessary to labour the point. The most simple test is to raise the question if removal from his office of organiser would automatically remove the applicant from his post of liquidator. Clearly the Registrar 'would be entitled to retain him in his post of liquidator even if Government should decide to remove him from his post of organiser; it would be a matter for the Registrar alone to remote or retain him. It is not necessary to discuss this issue any further.' On that point we fully agree with the Sessions Judge.
4. The other point as to whether the liquidator appointed under the Bombay Co-operative Societies Act is a Judge as defined in Section 19 of the Indian Penal Code is more difficult. The definition is as follows:
The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person who is empowered bylaw to give, in any legal proceeding, civil or criminal, a definitive judgment or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment,
5. The Sessions Judge has drawn a distinction between acts which are final only on the sanction of a higher authority and acts which are subject to the confirmation of a higher authority. In the latter case he says the act, when confirmed by a higher authority, still remains the act of the lower authority, in the former case the act ceases to be an act of the lower authority on sanction being given and becomes an act of the higher authority. Under Section 50 of the Act the liquidator is given power to conduct legal proceedings of various kinds, but that can only be done with the sanction of the Registrar. That being so, the Sessions Judge's view is that the liquidator's acts are really the acts of the Registrar, that the Registrar so to speak acts through the liquidator, and the liquidator, therefore, is not a Judge within the definition. Unfortunately, there is nothing in the record before us to show at what stage of the proceedings or in what term the sanction of the Registrar referred to in Section 50 is given. If it were necessary to decide the point we should have had to remand the case in order that evidence might be taken to clear up this point.
6. We do not consider, he wever, that it is necessary for the purpose of this case to decide whether a liquidator is a Judge or not. Assuming, for the sake of argument, that he is a Judge within the meaning of Section 19, sanction is only required in respect of any offence alleged to have been committed by him 'while acting or purporting to act in the discharge of his official duty.' In our opinion a liquidator who misappropriates money which has come into his custody as liquidator cannot be said to be acting or purporting toast in. the discharge of his official duty. This point also is not free from difficulty, but the view we take is in accordance with previous decisions of this Court, viz. Reg. v. Parshram Keshav 7 B.H.C.R. (Cr) 61 and Emperor v. Hanmant 122 Ind. Cas. 118 : 31 Bom. L.R. 789 : A.I.R. 1929 Bom. 375 : Ind. Rul. (1930) Bom. 118 : 31 Cr.L.J. 353 and see also Narayan v. Yeshwant: Dattatraya v. Annappa 114 Ind. Cas. 246 : 30 Bom L.R. 1018 : A.I.R. 1928 Bom. 352 :52 B. 832: 30 Cr.L.J. 278. This view is also supported by Sheik Abdul Kadir Saheb v. Emperor 33 Ind. Cas. 648 : (1916) 1 M.W.N. 384 : 17 CrI.L.J. 168 and Raja Rao v. Ramaswamy 102 Ind. Cas. 648 : (1916) 1 M.W.N. 384 : 17 CrI.L.J. 168. In the latter case it was held that:
The privilege of immunity from prosecution without sanction accorded to public officials only extends to acts which can be shown to be in discharge of official duty, or fairly purporting to be in such discharge. A prosecution for an offence arising but of an abuse of official position by an act not purporting to be official does not require sanction under Section 197 of the Code of Criminal Procedure.
7. We have been referred to an authority to the contrary effect in Gangaraju v. Venki 118 Ind. Cas. 102 : 52 M. 602 : A.I.R. 1929 Mad. 659 : 30 Cri.L.J. 864 : 30 L.W. 116 : 57 M.L.J. 31 Ind. Rul. (1929) Mad. 742 : (1929) M.W.N. 387. There Waller, J., dissents from the view which has been taken in some earlier cases that the fact of the accused being a Judge or a public servant must be a necessary element in the offence. He nevertheless made it perfectly clear that sanction cannot be required unless the act in respect of which the prosecution is brought was committed by a public servant acting or purporting to act as such in the discharge of his official duty. The facts in that case are thus stated in the judgment (page 608 Page of 52 M.--[Ed.]):
'The complainant's story is that the Village Magistrate sent his talayari to fetch her in connexion with a case before him, in which she had not appeared, told her that for not appearing when summons were sent to her, he sentenced her to imprisonment in the chawadi', and he confined her in his chavadi--the place where the persons he sentences are by law to be confined.
8. The prosecution was for an offence of wrongful confinement, As the Court said it is clear that under those circumstances the accused was purporting to act in the discharge of his duty as a Village Magistrate. We do not consider, he wever, that a liquidator who simply appropriates to himself money coming into his custody as liquidator can be said even to purport to act in the discharge of his duty. We he ld, therefore, that sanction for the prosecution of the accused was not necessary under Section 197. That being so there is no need to interfere with the Sessions Judge's order.
9. The Rule and the interim stay are discharged.