The main legal point established is that the protection accorded to public servants under Article 17 of the covenant required the previous sanction of His Highness the Raj Pramukh for prosecuting the accused.

TRILOCHAN DATT, J.

( 1 ) THESE are two revision applications, No. 2029 of 1949, preferred by Alla Noor khan accused and no. 201 of 1940 by Nazir Ali Khan accused, against the order dated 18-6-49 of the Magistrate, 1st Class, Chhabra, committing the accused to sessions under Rs. 120 (b), 420, 409 and 109, Penal Code, Both the accused have prayed in their respective applications for quashing the committal order. These revisions have arisen out of the same case and they are disposed of by one single judgment.

( 2 ) NASIR Ali khan accused was a Tehsildar in Tonk State, while Alla Noor Khan was a Patwar. At the time of the commission of the offence, Nasir Ali khan was acting as Nazim, Chhabra. Both the applicants were challaned under Sections 409 and 467, Penal Code, along with five others Abdul Majid Khan, Naimulla khan, Muqrab Rehman Khan, Mohammed Shafi and Mohammed Amin, Abdul majid Khan was a Nazim in the State and he was discharged by the Committing magistrate. Naimulla Khan, Muqrab Rehman Khan, Mohammed Shafi and mohammed Amin were Patwaris, who are still absconding and their challan was presented by the Police under Sections 512, Criminal P. C.

( 3 ) THE charge against the the applicants was that they embezzled Rs. 13,000 out of a sum of Rs. 60,000 set apart by the Government of Tonk for distribution among the Ziminders by way Taccavi loans. The case of the prosecution is that this sum of Rs. 13,000 was drawn from the Treasury by Nasir Ali Khan through alla Noor Khan, and after the same was withdrawn, a conspiracy for its embezzlement was entered into between both the applicants and the four absconded in pursuance of this conspiracy, the four absconders and Alla Noor khan presented applications in the names of bogus persons to Nasir Ali Khan, acting Nazim of Chhabra, for granting Taccavi loans in the names of those bogus applicants. In reality, the persons, in whose names the application were given, were nonexistent. These applications were granted by Nasir Ali Khan and taccavi loans were sanctioned, and in this way a sum of Rs. 13,000 was embezzled. These are the brief facts of the case and are sufficient for disposal of the applications before me.

( 4 ) THE main question in these revisions, which has been argued at length by the learned counsel for Nasir Ali Khan, is that Nasir Ali Khan accused is a public servant and no prosecution can be launched against him without the sanction of the Government under Section 197 Criminal P. C. , and as there is no such sanction on the file the commitment is bad and ought to be quashed.

( 5 ) ON 8th June 1949, Nasir Ali Khan, through his counsel presented an application in the Court of the Magistrate praying that in the absence of the required sanction of the Government the case cannot proceed and ought to be dismissed. The Magistrate disposed of this application on 18-6-49 with a very unsatisfactory order. I need not write much about this order, but I cannot help passing a remark that the Magistrate has not cared even to go through the rulings which he has cited in the order.

( 6 ) SECTION 197, Criminal P. C. runs as follows:

" (1) When any person who is a Judge within the meaning of Section 19, 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 provincial 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: (a) In the case of a person employed in connection with the affairs of the Federation, of the Governor-General exercising his individual judgment, and (b) in the case of a person employed in connection with the affairs of a province, of the Governor of that Province exercising his individual judgment. "

In the case before me, the words provincial Government and higher authority will mean