JUDGMENT

Varadachariar, J. - These appeal's have been preferred by two police officers (a Sub-Inspector and an Assistant Sub-Inspector) and an Excise Sub-Inspector of the Province of Bihar, against a judgment of the High Court at Patna which dismissed their appeals against a judgment of the Sessions Judge of Darbhanga convicting them of an offence Under Section 161, Penal Code. The Excise Sub-Inspector was also convicted of an offence Under Section 220, Penal Code, and sentenced to a term of imprisonment which was identical with that awarded on the charge Under Section 161, Penal Code, and was directed to run concurrently with it. His appeal against this conviction was also dismissed by the High Court. The cases come before this Court on a certificate of the High Court that they involve a substantial question of law as to the interpretation of Section 241(1)(b), Constitution Act. The principal question of law pressed before us on behalf of the appellants relates to the necessity for sanction Under Section 197, Criminal P.C., before the appellants could be prosecuted for the alleged offences; and the point as to the interpretation of Section 241, Constitution Act, has been raised as in some degree bearing upon the question whether the appellants are "removable from office save by or with the sanction of the Provincial Government." On behalf of the Excise Sub-Inspector, a similar objection has also been taken Under Section 96, Bihar and Orissa Excise Act, 1915.

2. We deal first with the objection Under Section 197, Criminal P.C. Taking it that the appellants have been accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, the question for determination is whether they are persons not removable from office save by or with the sanction of the Provincial Government. It is not disputed that according to the statutory rules and notifications set out in the judgment of the High Court, the police officers before us can be dismissed by the Deputy Inspector-General of Police and the Excise Sub-Inspector by the Excise Commissioner. But the appellants contend that such dismissal by a subordinate officer like the Deputy Inspector-General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy Inspector-General in the one case and the Excise Commissioner in the other case only act on behalf of the Provincial Government under powers delegated to them. In this view, they invoke the principle embodied in the maxim qui facit per alium facit per se and contend that as the subordinate authorities can dismiss them only as agents of the Provincial Government, they must be deemed to be removable only by or with the sanction of the Provincial Government, within the meaning of Section 197, Criminal P.C. They lay stress upon the use of the very term "delegate" in para. (e) of Sub-section (2) of Section 7, Bihar and Orissa Excise Act, when it provides for the Local Government delegating to the Excise Commissioner all or any of the powers conferred upon the Local Government by or under that Act It was recognized that the language of Section 7, Police Act (5 of 1861) would not fit in with this argument, as Under Section 7 of that Act, the power of dismissal is conferred by the Act itself upon the Inspector-General, Deputy Inspector-General, etc. But it was argued that whatever the position might have been before 1937, the matter now rests upon Section 241(1)(b), Constitution Act, which vests the power of appointment in the Governor "or such person as he may direct." Beading this paragraph of Section 241 with Sub-section (2) of Section 240, it was sought to maintain that the power of dismissal (like the power of appointment) must also be deemed to vest in the Governor and that whenever it was exercised by a subordinate authority, it must be held to have been exercised by such authority under the direction and therefore only as