RAGHUBAR DAYAL, J.

(1) THIS appeal, by special leave, is directed against the judgment of the Bombay High court.

(2) THE appellant was a Third Class Magistrate at Sanand in 1951. He received Rs. 200.00 in cash from Amar Singh Madhav Singh as deposit for security to be released on bail. This amount was not credited in the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to the amount.

(3) THE appellant was dismissed from service on 4/04/1953, as a result of a departmental enquiry. On 9/06/1954, a complaint was filed on behalf of the State against the appellant. He was convicted of the offence under s. 409, Indian Penal Code, by the Trial Magistrate. The conviction was confirmed by the Extra Additional Sessions Judge, Ahmedabad. His revision was dismissed by the High court.

(4) THE only point urged in this appeal is that the learned Magistrate should not have taken cognizance of this offence without the previous sanction of the State government in view of the provisions of s. 197, Code of Criminal Procedure.

(5) IT is not disputed that a court could not have taken cognizance of this offence against the appellant if he had been a Magistrate on 9/06/1954. The appellant was not a Magistrate on 9/06/1954, when the complaint was filed. The question then is whether the provisions of s. 197 of the Code of Criminal Procedure prohibit a court from taking cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date the court takes cognizance. Ss. (1) of s. 197, Code of Criminal Procedure, reads: `(1) 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 removable from his office save by or with the sanction of a State government or the central 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) in the case of a person employed in connection with the affairs of the Union, of the central government; and (b) in the case of a person employed in connection with the affairs of a State, of the State government.`

(6) THERE cannot be much scope for the contention that a court is prohibited from taking cognizance of an offence committed by a Judge while acting or purporting to act in the discharge of his official duty only when that person is a Judge at the time cognizance is taken, as otherwise full effect will not be given to the expression any person who is a Judge, in the subsection. Similar expression is not used in describing a Magistrate or a public servant. But it is clear that those two persons should also be Magistrate or a public servant at the time cognizance is taken of an offence committed by them while acting or purporting to act in the discharge of official duty.

(7) IN connection with public servant the expression who is not removable from his office save by or with the sanction of a State government or the central government indicates that. It is only when the public servant concerned is in service that the question of his removal from office can arise. If the public servant has ceased to be a public servant, no such question arises. Therefore it seems proper to construe the expression when any Magistrate in the subsection to mean when a person who is a Magistrate.

(8) EVEN if the expression be not construed in this form, the section says: when any Magistrate...... is accused of any offence. This indicates that it is only when the accusation is against a Magistrate that the court will not take cognizance of an offence committed by him while acting in the discharge of his official duty, without previous sanction. If a person is not a Magistrate