JUDGMENT

Mosely, J - A complaint was made by a liquor shop licensee against the present applicant in revision, a Sub-Inspector of Excise and his peon of illegal arrest and confinement, an offence under Section 342, I.P.C. The Magistrate quoted some rulings referring to the necessity of the previous sanction of the Deputy Commissioner for the prosecution of village headmen accused of illegal confinement, and pointed out that Sub-Inspectors of Excise were appointed by Commissioners of Divisions. He held that previous sanction was necessary to prosecute the accused and that he had no jurisdiction to entertain the complaint, and ordered that it be rejected. The order should have been one of dismissal of the complaint under Section 203, Criminal P.C. In appeal the learned Sessions Judge remarked that it was clear from the terms of Section 197, Criminal P.C., that no sanction of the Local Government or of any delegated authority was necessary for the prosecution of the respondents. He also remarked that it was arguable that in committing the alleged offence the Excise officers were not acting in the discharge of their duties. As to this it may be briefly pointed out that Section197, Criminal P.C. was redrafted in the Amended Act of 1923. The section now reads:

* * * when any public servant who is not removeable from his office save by or with the sanction of a Local 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 of the Local Government.

2. The words before the amendment were "is accused as such public servant of any offence," and it was repeatedly held prior to the amendment that the section related only to those acts and omissions which are declared in the Penal Code or other law to be offences when they are committed by a public servant in his capacity as such; that is to say, offences which are peculiar to his position as a public servant or cases in which he being a public servant is a necessary element in the offence. Several of such cases are quoted in Sankaralinga Tevan v. Avudai Animal A.I.R. 1917 Mad. 657, an unauthorised report which well sums up the law as it stood then on the subject. It is clear however as was laid down in a ruling of this Court Emperor v. U Mating Gale A.I.R. 1926 Rang. 171 that sanction is now necessary in such cases if the public servant in question is not removeable from office save by or with the sanction of a Local Government.

3. Sub-Inspectors of Excise are appointed by the Local Government under the rules framed by the Secy. of State for India under the Government of India Act published in the Gazette of India, Part 1, of the 21st June 1924 at p. 552, Rule 13 empowers the Local Government to remove or dismiss any officer holding a post in a Provincial or Subordinate Service. In the Schedule on Burma (7) the Burma Excise Service is mentioned as one of the services to which these rules apply. Rule 215 allows the Local Government to delegate its powers to any subordinate authority. The power to appoint Sub-Inspectors of Excise was delegated by the Local Government empowered in this behalf by Rule 15, of the Rules of the Secretary of State to Commissioners of Divisions by Excise Department Notification No. 17 of 11th May 1931 (Notification C), oorrection pamphlet No. & to p. 29, of the Excise Manual. The power to appoint includes the power to remove: vide Section 16, General Clauses Act (10 of 1897).

4. It is argued in this application for revision by the Excise Officer concerned that though these powers were delegated, yet the officer remains a public servant not removeable from office save by or with the sanction of the Local Government and therefore within the ambit of Section 197, Criminal P.C. The same point was death with in a judgment of Coutts-Trotter, J., in the case. In re Sheik Abdul Khade