1. In this case the Village Magistrate is alleged to have fabricated a record of a Criminal case according to the complainant there was no such case and the whole record is evolved from the malicious imagination of the Village Magistrate who desired, to provide evidence for use in the future. The question is whether Section 197 of the Code applies so that, he cannot be prosecuted without the sanction, required by that section. This will be so if he is accused as a Judge but not otherwise. The Regulation XI of 1816 does not require the Magistrate trying a case to make any record, and no doubt it was not in tended that he should do so, what is required is that the Karnam shall maintain a register of persons confined by order of the Village Magistrate. The Village Magistrate was not, therefore, bound to make a record as a Judge' and it seems to me that the Magistrate is right in holding that he was not acting as a Judge when he made it if he did make it. The case of Imperatrix v. Lakshman Sakharam; Vaman Hari and Balaji Krishna 2 B. 481 at p. 485 is not to be distinguished from the present unless it may be (though that is not clear from the report) that the Mahalkari there was bound to keep a record of his proceedings -there it is said that Section 466 of the then Code extended to all acts ostensibly done by a public servant, i.e., acts which, would have no special signification except as acts done by a public servant and the learned Judges thought it proper that the alleged fabricator should be dealt with in his official capacity.'
2. It seems to me, however, that the fabrication cannot be said to be in any way inseparable from the execution of the office of Judge any one could have done it who had access to the register kept by the Karnam or the Village Magistrate and though the effect of it would be to give the impression that the Village Magistrate in a certain case had acted as Judge, he would not, if the charge is true, have in fact done so. Assuming the fabrication to be an act which purported to be done by the Magistrate in his capacity of Judge, sanction is not, under the present Code, necessarily required for his prosecution. The Municipal Commissioners for the City of Madras v. Major Bell 25 M. 15 that case and the case of Nando Lal Basak v. N. N. Mitter 26 C. 852 : 3 C.W.N. 539 both of which were decided under the present-Code seem to me to support the view I take that sanction in the present case is not required. In Athangarayany. Gopalan Crl. R.C. No. 61 of 1904 (Unreported.), where the lower Courts relying on Imperatrix v. Lakshmnan Sakharam; Vaman Hari and Balaji Krishna 2 B. 481 at p. 485 held that a Village Magistrate extorting money on threat of making a report in his magisterial capacity could not be prosecuted without sanction, this Court held that he could be so prosecuted as he was not when committing the offence acting as a Judge see also Kandasami Chetti v. Soli Goundan 23 M. 540. I do not see how a Magistrate, who fabricates a record, in which he figures as Judge, can properly be said to be acting as Judge when he does so.
3. For these reasons I dismiss the petition.