L.S. Mehta, J.
1. The brief facts of this case, as alleged by the complainant Abdul Karim, are that during the famine of the year 1969, Phalodi-Jamba road had to be constructed, connecting Phalodi Jamba with village Naneri. Accused Kadar Khan, Noor Mohammed and Shamsuddin were working as Supervisors for the famine relief work. Accused Sher Mohammed, Mohamed Sharif, Kamarud Din, Mehar Din and Jag Mai were working as mates. Accused No. 10 Kher Mohammed was functioning as a Mistry. Accused No. 11 Lakhpat Raj Loonker, Assistant Engineer (B & R), was in overall charge of the famine work. All the eleven accused persons, according to the complainant, entered into a conspiracy and prepared false muster rolls and made false entries therein that such and such payments had been made to the labourers. But money, as shown in the muster rolls, had been embezzled by the accused persons. The complainant further alleged that false measurements were also entered in the Government record by accused Nos. 10 and 11 in order to wrongfully pocket Government money. On receipt of the above complaint the Munsiff-Magistrate, Phalodi, Mr. Jeewan Singh, recorded the statements of Abdul Karim, Fateh Mohammed, Mobin and Hari Singh under Section 202, IPC and thereafter he ordered that the case should be registered against all the accused persons under Sections 409, 466 and 120B, IPC: vide order-sheet, dated August 20, 1969. Against that order a revision petition was filed by accused No. 11 Lakhpat Raj, Assistant Engineer (B & H), in the Court of Sessions Judge, Jodhpur. The revision application, it appears, was transferred for its disposal to the Court of Additional Sessions Judge No. 1, Jodhpur. The main contention of Lakhpat Raj was that under Section 197(i), Criminal P. C, he could not be prosecuted for the offences alleged to have been committed by him unless the State Government had accorded sanction for the purpose. Learned Additional Sessions Judge observed that Lakhpat Raj could reasonably claim protection under Section 197, Criminal P. C. and, therefore, prior sanction to prosecute him was necessary. He has accordingly submitted this reference to this Court, recommending that the order of the Munsiff-Magistrate, Phalodi, dated August 20, 1969, in so far as Lakhpat Raj is concerned, should be quashed.
2. I have heard learned Counsel representing Lakhpat Raj. I had had also an opportunity of receiving assistance from learned Deputy Government Advocate in the matter. Nobody is present on behalf of Abdul Karim. The only point for determination in this case is as to whether sanction under Section 197, Criminal P. C, for the prosecution of Lakhpat Raj, is necessary,
3. There has been considerable divergence of judicial opinion on the scope of Section 197(i), Criminal P. C. The question has latterly been the subject of consideration by the highest courts in this country and by the Privy Council. Hori Ram Singh v. Emperor AIR 1939 PC 43 : (40 Cri LJ 468), is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935, which is almost identical in terms with Section 197(1), Criminal P. C. In that case it was observed:
When a public servant simply embezzles some property entrusted to him and thereby commits a criminal breach of trust under Section 409, he 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. A case like that would not ordinarily fall within the scope of Section 270(1). But an offence under Section 477A, Penal Code, is committed if an officer or servant or anyone employed or acting in such capacity, wilfully and with intent to defraud falsifies any book or account. Thus, where it is his duty to maintain a record or a register and in maintaining that register he makes some entries which are false to his knowledge, he is certainly purporting to act, though not actually acting in the execution of his duty, because he is making certain entries in the register, knowing them to be false. Hence for prosecution under Section 409 the consent of Governor is not necessary but for prosecution under Section 477A, consent is necessary.
In H. H. B. Gill v. The King AIR 1948 PC 128 : (49 Cri LJ 503) the question arose directly with reference to Section 197, Criminal P. C. There, the accused was charged under Sections 161 and 120B, IPC On the question whether or not sanction was necessary in accordance with the provisions of Section 197(1), Criminal P. C, it was held by their Lordships of the Privy Council that there was no difference in scope between Section 197, Criminal P. C, and Section 270 of the Government of India Act, 1935 and approving the statement of the law as laid down by Varadachariar, J., in AIR 1939 FC 43 : (40 Cri LJ 468) (supra), Lord Simonds held :
A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. 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.
It was accordingly held that as the act with which the accused was charged with an offence under Section 120B, read with Section 161, I. P. C, could not be justified as done, by virtue of his office, no sanction under Section 197(1), was necessary.
4. The view taken in H. H. B. Gill's case AIR 1948 PC 128 : (49 Cri LJ 503) (supra) was followed by the Judicial Committee of the Privy Council in Albert West Meads v. The King AIR 1948 PC 156 : (49 Cri LJ 660). In that case Lord Morton observed:
A public servant can only be said to act or to purport to act in the discharge of his official duty, 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. Acts of fraudulently misapplying money entrusted to his care as a public servant cannot be described as acts done by him by virtue of the office that he held. In such a case no sanction is required.
In Phanindra Chandra v. The King AIR 1949 PC 117 : (50 Cri LJ 395) Lord Simonds emphasised thus :
A public servant can onlv be said to act or purport to act in the discharge of his official duty, if the act is such as to lie within the scope of his official duty. The test may very well be, whether the public-servant, if challenged, can reasonably claim that what he does, he does in virtue of his office. Thus, where a person is charged under Section 161, Penal Code, no sanction under Section 197 is necessary.
Similar views were expressed by their Lordships of the Supreme Court in Ronald v. State of West Bengal AIR 1954 SC 455 : (1945 Cri LJ 1161). Therein it was laid down that sanction under Section 197, Cr. P. C, was not necessary for instituting proceedings against a public servant on charges of conspiracy and of bribery.
5. The matter again received the consideration of their Lordships of the Supreme Court in Sreekantiah Ramayya v. State of Bombay : 1955CriLJ857 . In that case his Lordship Bose, J., speaking for the Court, held:
If Section 197, Criminal P. C, is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty which the courts have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. The courts have to concentrate on the word 'offence' in the section. An offence seldom consists of a single act. It is usually composed of several elements and, as a rule a whole series of acts must be proved before it can be established. Where the elements alleged against the accused a public servant in charge of Government stores are first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal' and fourth, that the disposal was 'dishonest', it is evident that the entrustment and or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered... In such a case Section 197, Criminal P. C. applies and sanction is necessary, and where there was none the trial is vitiated from the start.
Again in Amrik Singh v. State of Pepsu : 1955CriLJ865 , Amrik Singh was a Sub-Divisional Officer in the Public Works Department, Pepsu and was on the material date incharge of certain public works of a place called Karhali. It was his duty to disburse wages to the workmen employed in the work and the procedure mainly followed was that he drew the amount required from the treasury and paid the same to the employees against their signatures or thumb impressions in the monthly acquittance roll. In the roll for the month of April, 1951 one Parma was mentioned as a 'Khalasi' and a sum of Rs. 51/-, was shown as paid to him for his wages, the payment being vouched by thumb impression. The case of the prosecution was that there was in fact no person of the name of Parma, that the thumb impression found on the acquittance roll was that of the accused himself, that he had included a fictitious name in the acquittance roll with intent to himself draw the amount and that by this expedient he had received Rs. 51/-, and misappropriated the same. It was held by their Lordships of the Supreme Court that when the accused claimed to have paid the amount to Parma and the acquittance roll recorded the payment and when there was an acknowledgement thereof, it was necessary for the prosecution to have obtained sanction. If what appeared on the face of the roll was true or whether it was true or not was not a matter relevant at the stage of the sanction. The act, with which the accused stood charged, fell within the scope of his duties and could be justified by him by virtue of his office. Clearly, therefore, sanction was required under Section 197(1), Criminal P, C. before the accused could be prosecuted under Section 409, I. P. C, and the absence of the sanction was fatal to the maintainability of the prosecution. The decisions in AIR 1939 FC 43 : (40 Cri LJ 468); AIR 1948 PC 128 : (49 Cri LJ 503); AIR 1948 PC 156 : (49 Cri LJ 660) and AIR 1954 SC 455 : (1954 Cri LJ 1161), when properly examined, do not support the extreme view that no sanction was necessary in a matter like this. On the facts it was held in these authorities that it is not every offence committed by the public servant that required sanction for prosecution under Section 197(1), Criminal P. C. But if the act complained of is directly concerned with his official duty, then sanction would be necessary and that would be so irrespective of the fact whether it was a proper discharge of his duty or not, because that would really be the matter of defence on the merits, which would have to be investigated at the time of trial and could not be granted at the stage of sanction, which must precede the institution of the prosecution.
6. In this view, it has got to be examined whether the alleged act with which the petitioner Lakhpat Raj is charged directly bears on the duties which he had got to discharge as a public servant. According to the complainant, Lakhpat Raj petitioner received money from the Government alleged to have been misappropriated by himv as an Assistant Engineer. Then it was his duty to make payment of the amount to the workmen after having obtained their signatures or thumb impressions in acknowledgment thereof. The acquittance rolls record the payment. Whether or not the signatures or the thumb impressions on the acquittance rolls were genuine is not a matter relevant at the stage of the sanction, if what appears on the face of the rolls is true. The act, with which the petitioner is charged, falls squarely within the scope of his duty and can be justified by him as done by virtue of his office. Clearly, therefore, sanction is required under Section 197(1), Cri. P. C, before he can be prosecuted for the offences under Sections 409, 466 and 120B, IPC In the absence of such sanction, the maintainability of the prosecution can well be challenged. There is no doubt a recent decision on the point in issue, reported in Harihar Prasad v. State of Bihar, : 1972CriLJ707 , wherein his Lordship Roy, J., speaking for the Court, observed that it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar to a prosecution under Section 120B read with Section 409 of the Penal Code. In Harihar Prasad's case : 1955CriLJ857 and : 1955CriLJ865 had been cited with approval. The facts of Harihar Prasad's case are materially different from those of the case in hand. That was a case of dishonestly paying out large sums of Government money under the pretext of speedy implementation of the project to secure pecuniary advantage. That case has nothing to do with the fact that the accused made an entry in discharge of his official duty in the acquittance rolls and then made payment of the amounts to the workers. Here the act complained of is, as has been stated above, directly concerned with the official duty of accused Lakhpat Raj and, therefore, sanction is a condition precedent to the prosecution. How far the plea of the accused is tenable is not a matter relevant at the stage of sanction.
7. For the foregoing reasons, the reference is accepted and the order of the Munsiff-Magistrate, Phalodi, dated August 20, 1969, is quashed in so far as issuing summons against the petitioner Lakhpat Raj is concerned. The prosecution is at liberty to obtain sanction from the proper authorities and then prosecute the accused.