Madhavan Nair, J.
1. This petition raises the question whether sanction under Section 197 of the Criminal Procedure Code should be obtained before instituting criminal proceedings against a Tahsildar who acted as a polling officer in connection with a municipal election.
2. The facts are briefly these: Under G.O. No. 1367, L. & M., dated April 3, 1925 ...where a Chairman of a Municipal Council or the President of a Local Board desires to have the services of an officer of the Revenue Department for the conduct of a particular election he may apply to the Collector and the Collector may spare an officer's services if he is able to do so. Acting under the Government Order, the Chairman of the Ellore Municipality obtained from the Collector the services of the petitioner, a Tahsildar, to act as a polling officer in the 5th Ward of the Ellore Municipality during a recent municipal election. It is alleged that, while acting in that capacity, the petitioner committed an offence under Section 58 of the District Municipalities Act, which runs as follows:
Every person who in the course of electoral operations falsifies or attempts to falsify the record of an election by removing, destroying, altering or fabricating nomination papers or voting papers or by any other act or by any omission, shall be punishable with imprisonment of either description which may extend to one year or with fine or with both.
The case against the petitioner is described in paragraphs 6 and 7 of the complaint. Paragraph 7 runs thus:
The accused wilfully marked the votes wrongly and falsified and attempted to falsify and fabricate the records of the election and committed an offence punishable under Section 58 of the Madras District Municipalities Act and also Sections 465 and 469 of the Indian Penal Code.
It is not necessary for the purposes of this case to state the facts of the complaint in greater detail.
3. When the case was taken up for trial, objection was taken on behalf of the petitioner that this is a case in which sanction of the Government is necessary under Section 197 of the Criminal Procedure Code and that, as such sanction had admittedly not been obtained, the complaint should be dismissed. Upholding the objection the joint Magistrate dismissed the complaint. The learned Sessions Judge on revision set aside the order of the Joint Magistrate and directed him to dispose of the case according to law. The present revision petition is against the order of the Sessions Judge.
4. Section 197 (1) of the Criminal Procedure Code runs as follows:
When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removeable from his office save by or with the sanction of a Local 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 duly, no court shall take cognizance of such offence except with the previous sanction of the Local Government.
To establish the contention that sanction should have been obtained, the petitioner has to show (1) that he is a public servant who is not removable from his office save by or with the sanction of the Local Government and (2) that he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. If either of these conditions does not apply to the petitioner, then clearly it is not necessary to obtain the previous sanction of the Local Government to institute proceedings against him. Following the argument of the learned Vakil for the petitioner, dealing with the second question first, we have to see whether the petitioner, while acting as a polling officer under the District Municipalities Act, was acting or purporting to act in the discharge of his official duty, his official duty being that of a Tahsildar. It is alleged that, because the Collector has lent the petitioner's services to the Chairman, notwithstanding the fact that he was acting as a polling officer, he still remains a Tahsildar and was acting or purporting to act in the discharge of his official duty as a Tahsildar. No direct authority in support of the argument has been brought to our notice. Under Rule 8 (1) of the Rules for the Conduct of Elections of Municipal Councillors
If owing to their being more candidates than there are vacancies, a poll has to be taken, the Chairman shall appoint forthwith one or two polling officers for each polling station and may pay them reasonable remuneration for their services.
It is conceded that the petitioner, when his services were lent to the Chairman, was appointed as a polling officer by the Chairman and that it was after this appointment that he began to discharge the duties of a polling officer. 'In certain cases it is the duty of the Municipal Chairman to appoint a polling officer, and the polling officer acquires the status of a polling officer by the appointment by the Municipal Chairman. The Municipal Chairman may appoint any person he likes as a polling officer subject to the restrictions contained in the rule. The fact that the officer so appointed happens to be a Tahsildar or that he was appointed after obtaining the permission of the Collector does not affect the decision of the question. We are of opinion that the person appointed, though he is a Tahsildar, was, for the time being, not acting or purporting to act in the discharge of his official duty, as a Tahsildar and, therefore, Section 197 of the Criminal Procedure Code can have no application. As one of the essential conditions necessary for the application of the section is not satisfied in this case, it is not necessary to consider the other condition, namely, whether the petitioner is a public servant who is not removeable from his office save by or with the sanction of the Local Government.
5. We think the order of the Sessions Judge is right and dismiss this criminal revision petition.