The requirement of obtaining sanction by the Government to prosecute a public servant under Section 197 Cr.P.C. and the irrelevance of the amount of embezzlement to the offense under section 409 IPC.

1. - This is a revision petition filed by Banwarilal against the judgment of Sessions Judge, Sikar, dated 30th October, 1982, whereby partially accepting the appeal maintained the conviction of the petitioner under Section 409 IPC. The petitioner was challaned before the Chief Judicial Magistrate, Sikar under Section 409 IPC. The allegation against him was that while posted as Patwari, he collected Lagan Amount from the agriculturists but they did not deposit the money in the Government treasury. He, therefore, embezzled a sum of Rs. 2176.11 paisa. After recording the prosecution evidence and hearing both sides the learned Chief Judicial Magistrate found the petitioner guilty under Section 409 IPC and sentenced him to three years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine six months rigorous imprisonment. The learned Chief Judicial Magistrate in his judgment found that the petitioner only embezzled Rs. 120.06 paise.

2. The petitioner went in appeal against this judgment to the Sessions Judge, Sikar who by his order dated 30th October, 1982, maintained the conviction of the petitioner but reduced the sentence of three years rigorous imprisonment to that already undergone. The punishment of fine of Rs. 500/- was maintained.

3. Against this judgment the petitioner has come up before this Court in revision.

4. Learned counsel for the petitioner has argued that it is not disputed that the petitioner is Patwari and as such he is a Public servant. According to Section 197 Cr.P.C. no Court shall take cognizance of an offence against a public servant with and the provious sanction of the Government. The petitioner who is Patwari and Public Servant cannot be prosecuted unless a sanction by the Government to prosecute him is accorded. In the present case no sanction has been obtained before prosecuting or submitting the challan against the petitioner, hence the conviction of the petitioner is bad because without sanction there is no legal prosecution.

5. I have considered this argument. The petitioner is no doubt Patwari and is a Govt. servant. It was the duty of the petitioner to raise the objection of Section 197 Cr.P.C, before the Chief Judicial Magistrate. Learned counsel for the petitioner has not Satisfied me on the point whether the petitioner has taken the plea of Section 197 Cr.P.C. before the learned Chief Judicial Magistrate. Learned counsel for the petitioner could not show me from the record whether any such application has been filed by the petitioner. It has been contended that in the appellate court this point was raised as it is clear from the judgment itself. I have gone through the judgment also and there is no such indication that the petitioner has taken the plea of valid sanction before his prosecution before the appellate court. Learned Chief Judicial Magistrate has framed an issue to the effect that on 22nd and 23rd March, 1974, the accused petitioner was posted as Patwari and was a public servant. On this issue the decision is that there is no dispute about this point. The accused admitted that he was posted as Patwari on the relevant date. There is no point raised by the accused that he being public servant cannot be prosecuted without sanction by the government. There is no decision on this point of sanction. It means that the petitioner did not raise the point of sanction under section 197 Cr.P.C. before the learned Chief Judicial Magistrate. There is no decision on this point by the appellate court also, hence taking this plea before the revisional court, in my opinion the petitioner is not permitted to raise this point here. He should have taken this plea at the very first instance in the Court of Chief Judicial Magistrate. He did not raise this point before the learned Sessions Judge and now before this Court raising the plea of sanction is simply delaying the matter which is pending since 1974 and is not permitted.

6. It was also argued by the learned counsel for th