Shamsher Bahadur, J.
1. The question which arises for determination in this petition for revision is whether in a prosecution Under Section 409 of the Indian Penal Code against a Sarpanch it is necessary to obtain sanction of the State Government Under Section 197 of the Code of Criminal procedure?
2. The petitioner Basant Lal, who was a Sarpanch of Nagar Panchayat of village Dhulera in Narnaul district, sold 300 maunds of standing timber on 5th August 1955 to one Lalman for a sum of Rs. 300/-. The sale was in respect of the property which belonged to the Nagar Panchayat of Dhulera. On the allegation that the proceeds of the sale were never deposited in the account of the Nagar Panchayat, Net Ram Panch lodged a private complaint on 16th of July 1960 against the petitioner Under Section 409 of the Indian Penal Code. The receipt for the sum of Rs. 300/-:.had been issued by the petitioner as Sarpanch and the transaction according to the complaint had been kept a secret from the other members of the Nagar Panchayat. The trial Magistrate holding that prior sanction of the State Government was necessary to proceed with the prosecution and the complainant not having done so dischargea the accused by an order passed on 12th of October 1960.
On a petition for revision, the learned Sessions Judge considered that the offence not having been committed in his capacity as a Sarpanch the prosecution against Basant Lai could proceed without the sanction of the Government. Basant Lai feeling aggrieved has again come to this Court and cause has been shown against the rule nisi both on behalf of the State Government and the complainant.
3. Section 197 of the Code of Criminal Procedure requires that when a
public servant who is not removable from his office save by or with the sanction of a State Government... is accused of any offence alleged to have been committed by him while 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 ....
(b) in , the case of a person employed in connection with the affairs of' a State, of the State Government.
4. That the petitioner is a public servant admits of no dispute. Whether or not he could be removed by the State; Government is, however, a matter which does not appear to have been dealt with in the judgments of the Courts below. The learned Counsel for the respondent has invited my attention to the proviso to Section 12 of the Pepsu Panchayat Raj Act, 2008 B. K. which states that
subject to the approval of the Director, the Sarpancn, Naib Sarpanch or a Panch may be removed from his office by a two-thirds majority, of the votes of the members of the Sabha at its ordinary meeting.
It is contended that a Sarpanch is removable by a two-thirds majority of the votes of the members of the Sabha subject of course to the approval of the Director who cannot in any event be equated with the State Government.
This construction finds support from the proviso to Sub-section (1) of Section 123 of the Act under which 'where the Director takes action against a Panchayat or an Adalat or any member of an Adalat he shall obtain the previous approval of the Government'. The Director, in other words, before taking action has to obtain the prior approval of the Government only where the question of removal of a Panchayat or an Adalat or any member of an Adalat is involved. In the present instance, the removal of a Sarpanch, therefore, does not call for any prior i approval of the State Government. On a plain reading of these provisions of the Act, It seems to me that the petitioner not being removable from his office by sanction of the State; Government no previous sanction was essential Under Section 197 of the Code of Criminal Procedure.
5. The petitioner is otherwise bound to fail because the act of misappropriation was not one which was committed in the discharge of the public duties performed by the petitioner. As observed by Lord Simonds in H. H. B. Gill v. The King A.I.R. 1948 PC 128.
a public servant can only be said to act or to purport to act in the discharge of his official dutty, if his act is such as to lie within the scope of his official duty.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.
The same view was held in a subsequent Privy Council decision reported in the same Volume in Albert West Meads v. The King A.I.R. 1948 PC 156.
Applying the test envisaged by Lord Simonds, it seems clear that the petitioner 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. He had obtained money for and on behalf of the Panchayat as a Sarpanch and the prosecution alleges that this sum was misappropriated by him to his own purpose. There is no suggestion of any kind that the money was spent for purposes of the Panchayat, indeed it is not the allegations of the complainant or which the case has to proceed that the act of misappropriation formed part of his public duties. By no stretch of imagination could it be said that the act of the petitioner sought to be made a subject for the prosecution was done or purported to have been done in the discharge of official duties.
6. The learned Counsel for the petitioner has sought reliance on the Supreme Court authority of AmriK Singh v. State of Pepsu : 1955CriLJ865 , In this case, the judgment was delivered by Venkatarama Ayyar, J. and the two Privy Council decisions of Gill and Meads were noticed and approved. The judgment of the Supreme Court proceeds on the basis of the legal propositions which were so plainly enunciated by Lord Simonds. it was observes by Mr. Justice Venkatarama Ayyar that in a case of misappropriation where the question which falls for determi nation is whether prior sanction Under Section 197(1) of the Code of Criminal Procedure is necessary depends upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction Under Section 197(1) would be necessary. If there was no necessary connection between them and the perform ance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
I do not see how the ratio of the decision of the Supreme Court can possibly be of any assistance to the case of the petitioner. Can it be said that the act of misappropriation alleged to have been committed by the petitioner bore any relation to the public duties of a Sarpanch? In my opinion, the answer must be given In the negative. The money was received by the petitioner, if the allegation is accepted as correct, on behalf of the Nagar Panchayat and the office which the petitioner herd merely provided him with an opportunity to misappropriate the amount to himself.
7. That a mere opportunity to commit, an offence provides no connection between the act of misappropriation and the performance of duties has recently been reiterated in the Supreme Court decision of Dhannjay Ram Sharma v. M. S. Uppadaya Am 1960 SC 745, In my opinion, there is no force in this petition which must fail and is dismissed. The rule issued against the respondent would be discharged.