JUDGMENT
Shah, J.
1. The accused in this case was charged under Section 420 of the Indian Penal Code. He was a revenue patil of Mahalpatne village, and the charge against him was that he cheated Government and dishonestly induced Government to part with Rs. 29-10-0 by a misrepresentation that Tania Sakia, a Bhil, was employed as Patkari for the village in 1924-25, when as a matter of fact no Patkari was employed in the village during that year. An objection was taken in the trial Court that the sanction given in this case under Section 197, Criminal Procedure Code, for the prosecution of the accused by the District Magistrate was not sufficient, as the accused was not removeable from his office save by or with the sanction of the Local Government, and as no Court could take cognizance of such offence except with the previous sanction of the Local Government. This objection was overruled by the trial Magistrate on the ground that by J.D.G.R. No. 2033 of March 17, 1913, the power was delegated by Government to the Commissioners and Collectors. On the merits the trial Magistrate found the accused guilty and sentenced him to suffer rigorous imprisonment for six months.
2. The accused appealed to the Sessions Court. The learned Sessions Judge dealt with the case on the merits. Apparently the objection based upon the provisions of Section 197, Criminal Procedure Code, was not made before that Court. The learned Sessions Judge affirmed the decision of the trial Court and dismissed the appeal.
3. The accused has applied to this Court in revision. The objection which was made before the trial Court has been renewed before us. It appears that under Section 197, Criminal Procedure Code, as it stood before it was amended in 1923, the sanction required was the sanction of the Government having power to order his removal or some officer empowered in this behalf by such Government; and it was under the powers of delegation contemplated by Section 197, as it stood then, that the Government delegated these powers by the Government Resolution of 1913. But this section was amended in 1923. The section as it stood at the date of these proceedings is in these terms so far as it is material to the present point:-
When any public servant who is not removable 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 duty, no Court shall take cognizance of such offence except with the previous sanction of the Local Government.
4. The delegation of the power in 1913, is, therefore, of no use under the present section. The sanction required now is the sanction of the Local Government. There was no appearance on behalf of the Crown. But, having regard to the nature of the objection taken by the accused, we directed that the Government Pleader should appear in this case. We have now heard the learned Government Pleader on behalf of the Crown. It is clear from the provisions of Section 58 of the Hereditary Offices Act that the accused is not removeable from his office without the sanction of the Local Government. That being so, it is clear that under Section 197, Criminal Procedure Code, the sanction of the Local Government is necessary, There is no such sanction in the present case. It is also clear that where the sanction required by Section 197, Criminal Procedure Code, is not obtained prior to the proceedings, the proceedings must be treated as void. It is sufficient to refer on this point to the decision in Emperor v. Bhimaji Venkaji (1917) I.L.R. 42 Bom. 172, s.c. 20 Bom. L.R. 89. This position has not been and cannot be contested.
5. The result, therefore, is that the conviction and sentence must be set aside, and the accused must be discharged and set at liberty so far as this case is concerned, on the ground that the whole trial before the Magistrate is void as having been held without necessary sanction under Section 197, Criminal Procedure Code. This will be of course without prejudice to any fresh proceedings that may be taken, if at all, against the accused with the proper sanction required by law.
Percival, J.
6. In regard to the alteration made in 1923 in Section 197, Criminal Procedure Code, it is not very clear why the section was altered to the form in which it now stands. The Select Committee on this point observed:-
We have confined the operation of the Section to public servants removable by a Local Government or some higher authority and have provided that the sanction required for a prosecution will be the sanction of the authority which has power to remove. Mr. Chaudhari would prefer to leave Section 197 unaltered save in so far as the Bill proposed to amend it. He considers that the amendment proposed by us would enhance the difficulty of obtaining sanction.
7. It appears from the result in this case that the anticipation of Mr. Chaudhari was correct, and that difficulties do arise from the form of Section 197, Criminal Procedure Code, as it stands at present.
8. In regard to the re-trial of the case, I would only add that, as the accused has been acquitted on a purely technical ground, it would appear that there is no objection to retrial if the Government think fit to record the necessary sanction.
