C.B. Bhargava, J.
1. This is an application in revision by Laduram and Ridhkaran against whom charges Under Section 409 of the Indian Penal Code have been trained by the learned First Class Magistrate, Churu.
2. The facts of the case are that a contract for holding cattle fair was auctioned by the Muncipal Board, Rajaldesar in 1957 and the bid of onei Bhagwat Dayal for Rs. 1051/- being the highest, it was sanctioned in his favour. On 12th October, 1959 Bhgwat Dayal sent an application through one Shubhram to the petitioner No. 1 who was the Chairman of the Municipal Board. Rajaldesar, saying that Shubhram was his partner and he should be allowed to hold the cattle fair. Whatever amount of the instalment is paid by him should be deposited and he would himself meet the chairmar on 15th or 16th October. The amount remaining due for the instalment would be paid and the Municipal Board should not worry about it.
It is said that Shubhram paid Rs. 175/-, to the petitioner No. 1 on that date. The petitioner did not deposit this amount in the Municipal Board and no bntries were made in the cash book. On the other hand notices for the full amount due i.e. Rs. 350/)- in respect of the yearly instalment were Issued to Bhagwat Dayal under the signatures of the petitioner No. 1. No receipt was also issued this Subhram when he paid Rs. 175/- to the Chairman. On 12th January, 1960, Shubhram made ai complaint that he had not been given receipt for Rs. 175/- which he had paid to the Chairman. Thereafter, on 16th January, 1960 the attaint of Rs. 175/- is said to have been entered in the 4&sh; book of the Municipal Board.
On the facts charge sheet was submitted by the [police against the petitioner No. 1 but the learned Magistrate after considering the documents-placed before him also issued process against petitioner No. 2 and after hearing the parties framed charges Under Section 409 of the Indian Penal. Code against both of them. It was contended before the learned Magistrate on behalf of petitioner No. 1 that he could not be prosecuted unless there was a sanction for the same by the Government. This contention was also overruled by. the. learned Magistrate. The petitioners then preferred a revision application before the learned Additional Sessions judge, Chum but he too rejected, the application.
3. In this revision application it is urged by the learned Counsel that sanction by the Government Was necessary for the prosecution of petitioner No. 1 as he was a Chairman of Municipal Board and could not be removed from his office: save by the orders of the Government, In support of this contention reliance is placed on Amrik Singh v. State of Pepsu (S) : 1955CriLJ865 ,. Chimanbhai Kashibhai v. Jashbai Motibhai : AIR1961Guj57 and the State of Rajasthan v. Onkardas . It is also urged that from the documents which were placed before the learned Magistrate by the police, charge Under Section 409 of the Indian-Penal Code cannot be made out. In this connection he has referred to the order passed on the application dated 12th October, 1959 and several other orders on the file of the Municipal Board.... Learned Assistant Government Advocate contends that no previous sanction for the prosecution of a public servant for offence Under Section 409-at the Indian Penal Code is - necessary. Reliance is placed on Om Prakash v. State of U.P. (S) : 1957CriLJ575 and Moolsingh v. The State ILR (1959) 9 Raj 1020.
4. There is no doubt that the petitioner No. 1 being the Chairman of the Municipal Board? was a public servant who could not be removed from his office save by or with the sanction of the State Government and no Court could take cognizance of any offence committed by him while acting or purporting to act in the discharge of his official duties without the previous- sanction. of the State Government. The question which? requires determination is whether She act complained of was committed by him in the discharge of his official duty or had any reasonable relation with it he discharge of that duty. So far as the offences by public servants Under Section 409 are concerned it was laid down by the Supreme Court-in Amrik Singh's case (S) : 1955CriLJ865 that:
Even when the charge is one of misappropriation by a public servant, whether sanction is required Under Section 197(1) will depend 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; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would' be required. The result then is that whether sane tion is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they are unconnected with such duties, then no sanction is necessary.
In this case it was urged before their Lordships that misappropriatipn of fluids could under no circumstance be said to be within the scope of the duties of a public servant and therefore, no sanction Under Section 197(1) was necessary. Their Lordships did not agree with this too broad a statement of the legal proposition and observed as stated above and further held that sanction was Teautred Under Section 197(1) for the prosecution of Amrik Singh Under Section 409 of the Indian Penal Code. The following observations of their Lordships in the later cas, (S) : 1957CriLJ575 to which my attention has been invited by the . Learned Assistant Government Advocate also does not support the extreme legal position urged by him.
Quite a large body of case law in all the High Courts has held that a public servant committing criminal breach of trust does not normally act in, his capacity as a public servant.
Their Lordships further mentioned the following cases with approval in this connection:
The State v. Pandurang Baburao (S) : AIR1955Bom451 (FB), Bhup Narain v. State : AIR1952All35 , State v. Gulab Singh 0065/1954 .
These observations do not however, mean that in no case can a public servant commit the offence of criminal breach of trust in relatjon to the discharge of his official duty. There is no doubt in ILR (1959) 9 Raj 1020 it was held by the learned Chief Justice that:
It was not necessary to obtain sanction for the prosecution of a public servant Under Section 409 of the Indian Penal Code.
Reference in this connection was made to 0065/1954 and (S) : 1957CriLJ575 . The above mentioned two cases, it I may say so, with the utmost respect, do not lay down the said proposition of law. I have already referred to Om Prakash's case (S) : 1957CriLJ575 . In Gulab Singh's case 0065/1954 the accused was a cashier in the Panchayat Office at Udaipur and the status of the accused was such that no sanction was required under the provisions of the Criminal Procedure Code. In the Bombay case (S) : AIR1955Bom451 (FB) too which was referred with approval in Om Prakash's case (S) : 1957CriLJ575 it was held that:
It was open to the prosecution to launch a prosecution either Under Section 409, Penal Code, or Under Section 5(2), Prevention of Corruption Act, even before the amendment of the latter Act by Act 59 of 1952, and if the prosecution was launched Under Section 409 and if the status of the accused was such that no sanction was requiredunder the provisions of the Criminal P. C., then the prosecution is good and the conviction is proper notwithstanding the fact that if the prosecution had been launched Under Section 5(2) a sanction would have been necessary.
5. It is therefore, clear that in cases where the public servant if challenged can reasonably claim that what he did he did in virtue of his office, then sanction would be necessary for his prosecution even for offences under Section 409 of the Indian Penal Code. In Chimanbhai's case : AIR1961Guj57 where the President of the Municipality had directed the Chief Officer of the Municipality to pay the legal charges of the lawyers who had been engaged on behalf of the Municipality in exercise of the powers vested on him Under Section 31(d) it was held that:
The act was done by him in the purported exercise of the powers Under Section 31(d). The direction was in the discharge of his official duty and it did bear such relation to his duty as a public servant, that he could claim reasonably but not fancifully, that he did it in the performance of his official duty. He was therefore, entitled to the protection of Section 197 and sanction of the State Government was necessary to be obtained before launching the prosecution of the accused.
It is clearly a case where the act complained of was done by the accused in the purported exercise of his power under the Municipal Act and the principle laid down in Amrik Singh's case (S) : 1955CriLJ865 fully applied to that case. In where the accused was charged with drawing travelling allowance for a journey, which was in fact undertaken for his private purpose, it was held that:
The submission of the T. A. Bill and the drawing of the travelling allowance were acts, which were directly concerned with the official duties of the accused.
This case is also distinguishable because it was found that the submission of the T. A. Bill and drawing of the travelling allowance were official duties of the accused. It is therefore, to be seen whether in the present case the act complained of was done by the petitioner No. 1 in the discharge of his official duty. The amount of Rs. 175/- is said to have1 been given to him as Chairman of the Municipal Board. While he accepted the amount it can be reasonably argued that he did so in the discharge of his official duty.
To that extent the contention may he right but thereafter, the allegation against him is that ha did not deposit this amount in the Municipal Board and made no entries with regard to it in the cash book. He is said to have deprived the Municipal Board of the use of this amount for a period of three months and is said to have dishonestly misappropriated it. With regard to this act it cannot be said that it lay within the scope of his official duty. It is not such act that the petitioner can reasonably claim that what he did was by virtue of his office. I am taking this view of the matter on the prosecution case as it is and do not was to express any opinion on what the accused might have to say at the trial. As the matter stands today the act complained of cannot be regarded to have been done by the petitioner in the discharge of Ms official duty so as to require sanction for his prosecution. The first contention is, therefore, untenable.
6. As regards the contention that from the documents which were submitted by the police before the learned Magistrate, a charge Under Section 409 of the Indian Penal Code is not sustainable it may be pointed out that at this stage it would not be proper for this Court to express any opinion on the merits of the case. There are of course documents which lend support to the contention of the learned Counsel in this behalf to sonre extent but there are other circumstances too on which the learned Magistrate could justifiably frame charges against the petitioners. When the statements of the witnesses are recorded and all the relevant material is brought on the record then the court will be in a better position to judge .the contention which is now raised on behalf of the petitioners. At this stage I do not find sufficient grounds to quash the charge.
This revision has no force and is hereby rejected.