Trilochan Datt, J.
1. These are two revision applications, No. 2029 of 1949, preferred by Alla Noor Khan accused and no. 201 of 1940 by Nazir Ali Khan accused, against the order dated 18-6-49 of the Magistrate, 1st Class, Chhabra, committing the accused to Sessions under section 120(b), 420, 409 & 109, Penal Code, Both the accused have prayed in their respective applications for quashing the committal order. These revisions have arisen out of the same case and they are disposed of by one single judgment.
2. Nasir Ali khan accused was a Tehsildar in Tonk State, while Alla Noor Khan was a Patwari. At the time of the commission of the offence, Nasir Ali khan was acting as Nazim, Chhabra. Both the applicants were challaned under Sections 409 & 467, Penal Code, along with five others Abdul Majid Khan, Naimulla Khan, Muqrab Rehman Khan, Mohammed Shafi and Mohammed Amin, Abdul Majid Khan was a Nazim in the State and he was discharged by the Committing Magistrate. Naimulla Khan, Muqrab Rehman Khan, Mohammed Shafi and Mohammed Amin were Patwaris, who are still absconding and their challan was presented by the Police under Sections 512, Criminal P. C.
3. The charge against the the applicants was that they embezzled Rs. 13,000 out of a sum of Rs. 60,000 set apart by the Government of Tonk for distribution among the Ziminders by way Taccavi loans. The case of the prosecution is that this sum of Rs. 13,000 was drawn from the Treasury by Nasir Ali Khan through Alla Noor Khan, and after the same was withdrawn, a conspiracy for its embezzlement was entered into between both the applicants and the four absconded in pursuance of this conspiracy, the four absconders and Alla Noor Khan presented applications in the names of bogus persons to Nasir Ali Khan, Acting Nazim of Chhabra, for granting Taccavi loans in the names of those bogus applicants. In reality, the persons, in whosenames the application were given, were nonexistent. These applications were granted by Nasir Ali Khan and Taccavi loans were sanctioned, and in this way a sum of Rs. 13,000 was embezzled. These are the brief facts of the case and are sufficient for disposal of the applications before me.
4. The main question in these revisions, which has been argued at length by the learned counsel for Nasir Ali Khan, is that Nasir Ali Khan accused is a public servant and no prosecution can be launched against him without the sanction of the Government under Section 197 Criminal P. C., and as there is no such sanction on the file the commitment is bad and ought to be quashed.
5. On 8th June 1949, Nasir Ali Khan, through his counsel presented an application in the Court of the Magistrate praying that in the absence of the required sanction of the Government the case cannot proceed and ought to be dismissed. The Magistrate disposed of this application on 18-6-49 with a very unsatisfactory order. I need not write much about this order, but I cannot help passing a remark that the Magistrate has not cared even to go through the rulings which he has cited in the order.
6. Section 197, Criminal P. C. runs as follows:
'(1) When any person who is a Judge within the meaning of Section 19, Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority, 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:
(a) In the case of a person employed in connection with the affairs of the Federation, of the Governor-General exercising his individual judgment, and
(b) in the case of a person employed in connection with the affairs of a province, of the Governor of that Province exercising his individual judgment.'
In the case before me, the words 'Provincial Government' and 'higher authority' will mean the Rajasthan Government.
7. There is no doubt that both the accused Alla Noor Khan and Nasir Ali Khan are public servants. It is contended with regard to Nasir Ali Khan that he was not removable from his office except with the orders of the Government of Tonk, The learned Government Advocate does not admit this claim of Nasir Ali Khan and contends that there is no proof of it on the file. The learned Government Advocate baa also raised another very nice point, that under Section 197, Criminal P. C , the accused must be public servant at the time when the accusation was preferred against him. As Nasir Ali Khan was not in the service of the Government when he was accused of the offence, he cannot availof the protection accorded by the section. Both of these points must have been discussed at length and decided by me in this judgment but I need not waste energy in the presence of Article 17 of the covenant entered into by the Rulers of Benswara, Bundi, Dungarpur, Jhalwar, Kishangarh, Kotah, Pratapgarh, Shahpura and Tonk. This article runs as follows :
'Except with the previous sanction of the Raj Pramukh no proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of any covenanting state before the date on which the administration thereof is made over to the Raj Pramukh.'
8. After the integration of the States mentioned above, another integration took place, in which Mewar also joined, and now a third greater integration of all the States of Rajputana has taken place, forming one big united State of Rajasthan. At every time a new integration took place, a covenant was entered into between the Rulers of the covenanting states. In this way three covenants were entered into one referred to above, and another between the ten States including Mewar and the third between the Rulers of all the States of Rajputana. In the second covenant entered into between the ten States including Mewar, Article 17 was incorporated in verbatim. At the time when the prosecution against the applicants was started the covenant entered into between the ten States, i.e., the Rulers of Banawara, Bundi, Dungarpur, Jhalawar, Kishangarh. Mewar, Kotah, Pratabgarh, Shahpura and Tonk was in force. The learned Government Advocates on being questioned, admitted, that at the time of starting of prosecution against the applicants, the covenant mentioned above was in force. According to this covenant, the previous sanction of the Raj Pramukh was necessary for launching this prosecution. My attention has not been drawn to the third covenant entered into between the Rulers of all the States of Rajputana and no article of this covenant has been produced in my Court, in which this protection accorded to the servants of the ten covenanting States mentioned above was taken away. The covenant of the united States of Rajasthan is not available in the office of the High Court Bench at Kotah and the learned Govt. Advocate has not produced it before me, hence I feel no difficulty in applying Article 17 of the covenant of the ten States to the case of the applicants before me. This article has considerably widened the protection given to the public servants under Sections 197, Criminal P. C. In order to get the benefit of this protection under Article 17 of the covenant it is not necessary that a public servant should be in office at the timewhen the accusation was preferred against him. The only condition precedent is that, before the date on which the administration of the covenanting States was made over to the Raj Pramukh, he should he in service of the state, and the act in respect of which the prosecution is launched, should have been done or purported to be done by him in the execution of the duty. It is as clear now as anything that under Article 17 of the covenant the present prosecution against both the applicants before me should not have been started without the previous sanction of His Highness the Raj Pramukh.
9. The learned Government Advocate has raised another nice and interesting point, that as far as the offence of criminal breach of trust is concerned, no sanction, under any circumstances, is required for prosecuting a public servant under it. The learned committing Magistrate committed the applicants to Sessions, also on the assumption that no sanction is ever required under Sections 197, Criminal P. C. for prosecuting a public servant under Section 120-B read with Section 420 and under Section 120B read with Section 409 of the Penal Code. These are the sections, under which both the applicants are committed to the Sessions. In the view of the committing Magistrate, the nature of the offences mentioned above is such that even when these offences are committed by a public servant against the Government, they are always committed independent of an official act done in an official capacity.
10. As far as the offence under Section 420 or 120B real with Section 420 is concerned, I feel no difficulty in holding without hesitation, that the sanction of the Government is necessary for prosecuting a public servant for these offences. In the present case, the committing Magistrate has not written anything in his judgment as to how the offence under Section 420 is made out against the applicants. A public servant can cheat the Government only by an official act done in official capacity. I cannot conceive of any case, where a 'Government can be cheated by the private act of a public servant. As far as the offence under Section 120B read with Section 420 is concerned, the learned Government Advocate has not pressed the point before me at all. It is obvious from H.B. Gills v. King, A. I. R. (35) 1948 P. C. 128: (49 C. L. J. 503), that sanction to prosecute a public servant Under Section 120B read with Section 420 was obtained. Hence the view of the committing Magistrate that no sanction is ever required for prosecuting a public servant under Section 420 read with Section 120B is wrong.
11. The question remains to be decided with regard to offence under Section 409, Penal Code. I will split the contention of the learned Govt. Advocate into two parts: (1) whether it is not at all necessary, under any circumstances, to obtain sanction for prosecuting public servant under Section 409, Penal Code (2) If the answer to the question put forth in Part (1) is in the negative, whether the facts of the present case, as alleged by the prosecution, warrant the launching of the proceedings, against the applicants, without obtaining the previous sanction of His Highness the Raj Pramukh.
12. As far as the question comprised in part (1) is concerned, it has never received a serious consideration of any of the High Courts at any time. This is the only reason that no ruling directly on the point is available. The learned Government Advocate expressed his inability, before me, to find out any ruling directly on the point, notwithstanding serious hunt. Whenever this question came up before any High Court, it was decided in the light of the facts of that particular case, although here and there an attempt has been made to answer the question in generalized way. This expression of opinion in the generalised way, without seriously analysing the question, is responsible for the notion that no sanction is ever required for prosecuting a public servant under Section 409, Penal Code. The question was considered at some length by the Hon'ble Judges of the Federal Court in Dr. Hori Ram Singh v. Emperor, A. I. R. (26) 1939 P. C. 43 : (40 Cr. L. J. 468). In this case Sulaiman J. observed as follows:
'The question whether a criminal breach of trust can be committed, while purporting to act in execution of duty is not capable of being answered by pothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in generalised way has been responsible for the loose language in some of the cases cited before us. It is possible to conceive of a case where a criminal breach of crust may be committed in conspiracy with other servants and payment of money is dishonestly ordered, ostensibly in execution of duty. The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case.'
13. In the face of the above observations, I need not discuss the question any further. It cannot dogmatically be said that no sanction is necessary, under any circumstance to prosecute a public servant for the offence under Section 409. What is required to be seen is whether the act alleged by the prosecution against the accused, which constitutes the offence of criminal breach of trust, was done or purported to be done by him in the discharge of his official duty or not. The special circumstances of each case are to be examined, and if it is found that the offence mentioned in Section 409 was committed in the discharge of official duty, sanction becomes necessary.
14. In order to discuss the second question we shall have to look into the allegations of the prosecution against the applicants. We have only to see whether the case, as alleged against the applicants, or sought to be proved against them, relates to act done or purporting to be done by them in execution of duty as public servants. In Dr. Hori Ram Singh v. Emperor, A. I. R. (26) 1939 F. C. 43 : (40 Cr. L. J. 468), Sulaiman J. has observed on p. 52 as follows:
'When a public servant simply embezzles some property entrusted to him and thereby commits criminal breach of trust under Section 409, is not doing an act, nor even purports to do an act in execution of his duty; when he commits the act, he does not pretend to act in the official discharge of his duty.'
15. In the words of Sulaiman J., we shall have to see whether the case against the applicants is a cage of simple embezzlement or not. The question would arise what is simple embezzlement? There is no definition of these words given in the Federal Court's judgment, but the facts of the case before the learned Judges of the Federal Court sufficiently clarify the meaning of these words. The accused in that case, a Doctor, took some medicines to his house when he was under orders of transfer. He packed those medicines up and was ready to take them away to the place where he was transferred. He was caught red banded in the act. This was a simple embezzlement. The removal of the medicines from the hospital to the house of the Doctor, when he was in charge of the Hospital, did not constitute an offence of the criminal breach of trust. It was his attempt to dishonestly misappropriate the medicines without any official act on his part which constituted the offence. He simply embezzled the medicines without clothing his act with any official act.
15a. The facts of the present case, as alleged by the prosecution, have been summed up by me in the begining of this judgment. Nasir Ali Khan, the Acting Nazim of Chhabra, the principal accused in this case, drew some money from the treasury for the purpose of distributing it as Taccavi loans amongst the Zamindars. This he did through an official act. The act of withdrawing the money did not constitute the offence of criminal breach of trust, and the Crown did not base the prosecution of the accused on this bare act. My attention has not been drawn to any law or rule of the State of Tonk that a Nazim, who was entrusted with some money for distributing it amongst the Zamindars by way of Taccavi loans, could not withdraw a portion of it in the form of cash, for using it for the purpose, for which it was entrusted to him. The learned Government Advocate has contended before me that some prosecution witnesses havestated that the general practice was that the Nazim passed orders of granting loans to specific Zamindars and those Zamindars withdrew the money from the Government Treasury. That is all right. That is the most convenient and safer way of doing the job, but where is the prohibition of withdrawing and distributing the money in cash? I am not to be guided by the general practice in such cases, but by a specific law.
16. After withdrawing the money a conspiracy was entered into between all the accused that the Patwari accused should present applications for Taccavi loans in the names of bogus persons and the Nazim should sanction these applications. This was done and in this way the money was embezzled. Presenting applications by the Patwaris and granting them by the Nazim are official acts and if any sum was embezzled through such acts, the sanction of his Highness the Raj Pramukh was essential for initiation of the proceedings.
17. The protection of the public interest is the main concern in the initiation of the criminal proceedings. It is the Government only who can determine the question of expediency of launching criminal prosecutions against public servants. The Rulers of the different states, who signed the covenant, must have some motive in inserting Article 17 in the covenant. The motive is clear. During the transitional period, the public servants had to commit, on the initiative of the Rulers several acts which were not wholly warranted by their official duties. The Rulers wanted to save them, and hence protection comprised in Article 17 was provided for. I do not think that it will be just on my part to deprive the applicants of the protection, to which they are entitled under Article 17, specially in the face of their defence, that this sum of Rs. 13,000 was spent in defraying the expanses incurred in a tour of His Highness the Nawab of Tonk, under orders of higher authorities.
18. It may be said that at the time of withdrawing the money from the treasury and at the time of presenting and granting applications for Taccavi loans, the accused were actuated by dishonest motives, and hence their acts should not be considered to have been performed in the discharge of their official duty. I am not at all prepared to accept this theory. The question whether the act was done in good faith or bad faith has no connection with the question of obtaining sanction, specially in the presence of the words occurring in Article 17 of the Covenant, 'Any act purporting to be done in execution of duty'. A public servant may act maliciously and yet in the execution of his office. Sulaiman J., while delivering his report in Dr. Hori Ram Singh v. Emperor, A. I. R.(26) 1939 F. C. 43 : (40 Cr. L. J. 463), observed on p. 51 as follows:
'When an act is not done in execution of his duty, but purports to have been done in the execution of his duty, it may very well be done in bad faith; and even an act which, cannot at all be done in good faith, may purport to be done in execution of duty, if another is made to believe wrongly that it was being done in execution of duty. It is, therefore, not possible to restrict the applicability of this section only to such a case where the act could possibly have been done both in good or bad faith.'
19. Moreover, the question of good and bad faith is a question which is to be decided by the Court. How can a prosecuting agency, before launching the prosecution, take for granted that the Court will arrive at the conclusion that the act was done in bad faith and hence they need not obtain the previous sanction of the Government or His Highness the Raj Pramukh, as the case may be. For reasons given above, I accept both the revisions and order that the charges framed by the committing Magistrate against the applicant Nasir Ali Khan and Alla Noor Khan be quashed for want of jurisdiction, the sanction of His Highness the Raj Pramukh not having been obtained.
20. If will be open to His Highness the Raj Pramukh, after considering the facts of the case, to give His Highness' consent to a fresh prosecution of the applicants. Previous sanction of His Highness the Raj Pramukh is essential for launching the prosecution.