Sanction of the Government is not necessary for the prosecution of a public servant under S. 409, Indian Penal Code, for the offence of criminal breach of trust, as it is not an offence committed while acting in his official capacity.

Judgment

RAMASWAMI, J. : This appeal is brought by special leave, from the judgment of The Madras High Court dated December 3, 1963 in Criminal Appeal No. 380 of 1961 by which the appellant was convicted under S. 409, Indian Penal Code and sentenced to rigorous imprisonment for one year.

2. The appellant was elected President of the Narinjipet Panchayat Board on May 17, 1958. At that time he was a duly elected member of the Board. It appears that a sum of Rs. 4,000 of the Board had been invested in four National Plan Savings Certificates in the Bhavani Post Office. It was alleged that the appellant cashed them on February 11, 1959 and did not bring the amount in the account books of the Panchayat Board. The defence of the appellant was that he signed the certificates and handed them over to P. W. 4, the Deputy Panchayat Officer of the block within which the village was located. This was done by the appellant because P. W. 4 approached him and asked him that the Board should subscribe through him for small savings certificates for Rs. 7,000 just as the panchayat had subscribed Rs. 7,000 through Tahsildar representing the Revenue Department. For that purpose P. W. 4 got Rs. 500 in cash on December 2, 1958 and a cheque for Rupees 2,500 on February 9, 1959. It was the case of the appellant that P. W. 4 represented that along with this sum of Rs. 3,000 he would cash the National Plan Savings Certificates of the total value of Rs. 4,000 and purchase small savings certificates for Rupees 7,000 that being his quota from the Narinjipet Panchayat. To enable P. W. 4 to make the purchase, the appellant endorsed the National Plan Savings Certificates and handed them over to P. W. 4. The Sub Divisional Magistrate, Erode was not satisfied that the prosecution had proved the charge and therefore acquitted the appellant, but on appeal the High Court accepted the prosecution evidence that it was the appellant who cashed the certificates at the Post Office and not P. W. 4 and accordingly found the appellant guilty of the offence.

3. It was argued on behalf of the appellant in the High Court that prosecution was not maintainable for want of sanction by the State Government under S. 106 of the Madras Village Panchayats Act (Madras Act X of 1950) (hereinafter called the Madras Act ). That section reads as follows :

"106. When the President, executive authority or any member, 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 Government ." Sanction for the prosecution was, however, given in this case by the Collector and not by the Government under powers purported to have been delegated to him under S. 127 of the Madras Act which provides :

"127. (1) The Government may, by notification, authorize any authority, officer or person to exercise in any local area in regard to any panchayat or any class of panchayats or all panchayats in that area, any of the powers vested in them by this Act except the power to make rules, and may in like manner withdraw, such authority.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

The High Court held that no sanction of the Government was necessary as the appellant had ceased to hold the office of President when the prosecution was launched and further that the sanction of the Collector was sufficient in law .

4.The question of law involved in this appeal is whether the sanction of the Government under S. 106 of the Madras Act is necessary for the prosecution of the appellant for the offence under S. 409, Indian Penal Code.

5. On behalf of the appellant it was contended that the sanction granted by the Collector was not valid in 1aw and sanction would have been given under S. 106 of the Madras Act by the State Government. It was Submitted that S. 127(1) of the Madras Act has not authorised the Government to delegate the power for granting sanc