Lord Simonds.-

This appeal is brought by special leave from a judgment of the High Court of Judicature at Fort William in Bengal dismissing the appeal of the appellant, Phanindra. Chandra Neogy, from the conviction and sentence passed on him by the Chief Magistrate, Calcutta, on 10th April 1946.

[2] The conviction was for an offence under S. 161, Penal Code and the sentence was one of twelve months rigorous imprisonment. It is convenient to set out the charge which was in these terms :

"That you Phanindra Chandra Neogy, on or about 10th day of September 1945, in the Town of Calcutta being a public servant to wit, a Railway servant and an inspector in the office of the Regional Controller of Priorities accepted from one Sohanlal a gratification other than your legal remuneration to wit, the sum of Rs. 500 only as a motive or reward for showing favour to the said Sohanlal in the exercise of your official functions relating to an application by the said Sohanlal for being allowed two wagons, one from Allahabad and another from Benares and thereby you the said Phanindra Chandra Neogy committed an offence punishable under S. 161, Penal Code and within my cognizance."

[3] The single ground upon which the petition for special leave to appeal was based was that, no sanction for the prosecution of the appellant having been obtained either under S. 270, Government of India Act, 1935, or under S. 197, Criminal PC the Chief Magistrate had no jurisdiction to try or convict him, and it was upon this ground that special leave to appeal was granted, for similar leave had been given in Gill v. The King, a case then pending, in which the same question (together with other questions) was raised.

4 In January 1948, this Board beard, and in February 1948, delivered judgment in Gill v. The King, now reported in LR 75 IA at p. 41 : (AIR (35) 1948 PC 128). In the course of that judgment their Lordships thought it proper to

express their view upon the scope of S. 197, Criminal PC. Having observed that they found it impossible for any relevant purpose to differentiate between S. 270, Government of India Act and S. 197, Criminal PC they proceeded as follows:

"A public servant can only be said to act or purport to act in the discharge of his official duty, if the act is such as to lie within the scope of his official duty. Thus a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be, whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office."

Applying this reasoning to the case of Gill, a public servant, who had been charged together with one, Lahiri, with being a party to a criminal conspiracy to cheat the Government, whereby offences under S. 120B read with S. 420, Penal Code were alleged to have been committed and had also been charged with offences under S. 161 of the Code, their Lordships held that no sanction under S. 197, Criminal PC was necessary.

[5] In face of this judgment the present appeal appeared to have little chance of success. It was nevertheless argued fully by counsel and their Lordships have had the opportunity of reconsidering the whole question. They cannot accede to the suggestion of counsel that that part of the judgment which has been cited is to be regarded as obiter dictum. The scope of S. 197 and its applicability to Gill's case, (75 IA 41 : AIR (35) 1948 PC 128) were put in the forefront of the written case he presented to the Board and it was the first of his formal reasons that the sanction, for which that section provides, ought to have been, but was not, given. The question was argued at length by the respondent's if not by the appellant's counsel and their Lordships treated it as a matter which