ORDER
Vishnu Sahai, J.
1. By this Criminal Revision the petitioner has impugned the Judgment and order dated 23-12-1992 passed by the Addl. Sessions Judge; Kolhapur, in Criminal Appeal No. 15 of 1989, whereby the judgment and order dated 4-1-89 passed by the Judicial Magistrate, First Class, Kagal, in Regular Criminal Case No. 284 of 1979, convicting and sentencing him to undergo three months RJ. and to pay a fine of Rs. 200/-, in default, to suffer R.I. for 30 days, for the offence under section 409 I.P.C., has been confirmed.
2. The accusation against the petitioner is that while working as a “Talathi” from 1972 to 1976 at Baleghol Saja, he was entrusted with the work of recovery of land revenue, tagai loan, bunding charges, etc. from the cultivators, and during the said period, committed temporary embezzlement of Rs. 3049.25/-. He did not deposit the money which he had collected forthwith, but later on because his wife was ill and he had spent it in her illness.
3. Alter the usual F.I.R. and investigation the petitioner was put up for trial for the offence under section 409 of I.P.C. As mentioned in paragraph No. 1, he was convicted and sentenced by the trial Court and his appeal was also dismissed.
4. I have heard Mr. D.S. Sawant, for the petitioner and Mr. R.Y. Mirza, A.P.P., for the State/Respondent, I have also perused the impugned judgment and record and proceedings. In my view this revision application deserves to be allowed.
5. Mr. Sawant, made a legal submission before me namely that in as much as the petitioner was a public servant and had committed the offence in the discharge of his
official duty, the Court could not have taken cognizance of the same without prior sanction of the State Government whose employee the petitioner was. Mr. Sawant urged that this was imperative in view of the provisions contained in section 197 of Cr.P.C. He urged that since no sanction was taken from the State Government and cognizance was straightaway taken by the Court, the trial etc. of the petitioner was a nullity in law. Mr. R.Y. Mirza, Addl. Public Prosecutor, for the State, does not dispute that no sanction from the State Government was taken before the Court took cognizance of the offence against the petitioner but urged that since this point was not canvassed before the courts below, the petitioner should not be permitted to plead it at this belated stage. I have reflected over the rival submissions.
6. Section 197 of Cr.P.C. reads as under :—
“197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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
(a)…..
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.”
7. A perusal of section 197 would show that if an offence is committed by a public servant not removable from his office without sanction of the Government of which he is an employee, while acting or purporting to act in the discharge of official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government of which such public servant was an employee. The language of section 197 of Cr.P.C. shows that unless sanction for prosecution has been taken the Court is precluded from taking cognizance of the offence.
8. I am not impressed with Mr. Mirza’s submission that since the plea of sanction was not raised by the petitioner in the courts below he is estopped from raising it for the first time in this Court. In my judgment, a legal plea which goes to the root of the matter and which renders a criminal trial without jurisdiction can be raised at any stage. My view is fortified by the observations contained in paragraph 13 of the judgment of the Supreme Court in the case of B. Saha and others v. M.S. Kochar, . They read thus :—
“We have no quarrel with the proposition that the question of sanction under section 197, Cr.P.C. can be raised and considered at any stage of the proceedings…..”
9. Since the cognizance of the offence could not have been taken by the Court against the petitioner without previous sanction of the State Government, his trial itself was a nullity in law. Consequently the impugned order has to be quashed and the petitioner acquitted.
10. In the result, this revision application is allowed. The conviction and sentence of the petitioner for the offence under section 409 I.P.C. is set aside. He is acquitted of the said offence. The petitioner is on bail. He need not surrender. His bail bonds stand cancelled and sureties discharged. In case, he has paid the fine, the same shall be refunded to him. Rule is made absolute. In case, an application for a certified copy of this judgment is made, the same shall be issued within six weeks from today.
11. Revision allowed.