Seshagiri Aiyar, J.
1. Accused Nos. 3, 4, 5 and 9 in this case filed civil suits against the complainant befrre the 8th accused, the Village Munsif of Ettaiyapuram. Tending the suits, the 3rd and 9th accused applied to the 8th accused to attach the jutka and pony of the complainant before judgment. This was ordered, and the jutka and the pony were removed from the house of the complainant. The talayari who carried out the orders of the 8th accused and the persons who assisted in the removal of the properties are the other accused. The complaint is one of theft and of abetment thereof. A charge was framed against all the accused on the 1st April 191(5 After that, this Court was moved to stay proceedings and to cancel the charge against the accused. As regards accused Nos. 1 to 7 and 9 this Court has no right to interfere at this stage. It was sought to be argued that the evidence lot in does not disclose any offence against them. 1 refused to listen to this argument, because that is not a matter which, even if I had the power, I desire to pronounce any opinion upon. These accused will have every facility of putting forward their case in the Court below.
2. As regards the 10th accused, the talayari, he is not a public servant not removable from his office without the sanction of the Government of India or the Local Government and consequently no sanction is necessary under Section 197 of the Code of Criminal Procedure for prosecuting him.
3. The case of the 8th accused is different. It is common ground that he had no power to order attachments before judgments in suits pending before him. It is clear that he was a Judge in respect of the suits filed before him. This position was not disputed by the learned Public Prosecutor. It was strenuously contended before me that as in ordering the attachment he was doing an act ultra vires of his powers, he was not acting as such Judge' within the meaning of the section. Broadly put, the contention is that when a Judge or public servant exceeds the limit of his power, he is not within the protective provisions of Section 197. I am unable to accept this contention. If this argument is pushed to its logical conclusion no public servant or Judge can have the safeguard of a sanction, as it is not within the powers conferred upon such an officer to commit an offence. Any offence committed by such a person must prima facie be beyond his official rights and duties. I do not think that such a result is the necessary consequence of the language employed by the Legislature.
4. It seems to me that in all cases where a public servant purports to exercise his functions as such, he must be deemed to be acting ' as such, public servant,' The test is not whether the particular act is within his powers, but whether he acted in the capacity with which he w clothed. Of course, if he simply uses his position as public servant to commit an illegal act he will not be acting as such public servant. That is what happened in the case of Mangapathi Naidu, In re 2 Weir 221. There a Village Munsif used his position to extort money. He was not acting as public servant, but he was taking advantage of his position to commit an offence. He is not beyond the pale of Section 197. Again where a Judge commits an offence not in discharging his duties as such, nor in the belief that he is discharging such duties, the object being to bring another man into trouble, Section 197 has no application. See J'alaniandy Pillai v. Arunachellum Pillai 3 Ind. Cas. 387 : 9 Cri. L.J. 89. Justice Miller points out that in fabricating a false record with reference to a case that was never before him, and with reference to which he was not asked to take any action, the accused did not act as a Judge. Some observations of Justice Moore in Municipal Commissioner for the City of Madras v. Major Bell 25 M.k 15 were relied on by the learned Public Prosecutor. The learned Judge quotes with approval a dictum of Field, J., that the requirement of sanction applies only to 'cases in which the offence charged is an offence which can be committed by a public servant only, cases, that is, in which being a public servant is a necessary element in the offence.' If I understand the proposition aright, the protection extends only to offences where the powers inherent in the official are used to oppress or annoy. In other words, there must be complete competency to use the powers, bat the powers must be used not legitimately, but with the object of gaining an illegal advantage. Such cases are conceivable, but I am not able to construe the section in this narrow sense. There are cases in which the initial jurisdiction may be wanting. If in such cases a jurisdiction is assumed and the official acts to the prejudice of a person, I am willing to admit that he is not acting as such public servant.' See Kandasami Chetti v. Soli Goundan 23 M.k 540. But where an official has the initial jurisdiction to take cognizance of a matter, and in professedly exercising that jurisdiction commits an offence, I am not able to see that he is not acting as such public servant or Judge. The decision of Contts Trotter, J. in Sheik Abdul Khadir v. Emperor 7 CrI. L.R. 466 is not against my conclusion. It is pointed out in that case, that where the offence is complete, the fact that holding the position of a public servant renders the offender liable to enhanced punishment, would not enable the accused to plead that lie committed the offence as such public servant. I take my learned brother's reasoning to be that it was in the capacity of a public servant, the additional penalty was incurred and that the offence was construed otherwise. I do not think this proposition militates against the view I am holding.
5. Mr. Guruswami Aiyar suggested a distinction which I am not able to accept. According to him, the applicability of the section must depend upon the language used by the complainant in charging the official. If lie chooses to say that the offender in his capacity of a public servant committed the offence, then Section 197 must apply and not otherwise. This would have the effect of throwing a public servant on the mercy of the complainant.
6. In my opinion the protection afforded by Section 197 would apply to all cases where, in the professed exercise of an official's duties, an offence is committed. I, therefore, hold that as no sanction has been obtained for the prosecution of the 8th accused, the charge against him must be set aside.