JUDGMENT Banerjee and Handley, JJ. - This is a reference by a Presidency Magistrate, namely, the Municipal Magistrate of Calcutta, under the first part of Section 432 of the Code of Criminal Procedure; and the question upon which our opinion is asked as stated in the 5th paragraph of the letter of reference is "whether the Administrator General of Bengal can be prosecuted under the Calcutta Municipal Act without the sanction of the Government, for non-compliance with the requirements of the Act in respect of the large number of houses vested in him as Administrator General." Though the question is stated in the manner set out above, in paragraph (2) of the letter of reference is stated a fact which has some bearing upon the question submitted to us for our opinion; and that fact is this,--that the Administrator General has been appointed administrator to the estate to which the house in question appertains, by an order of Court on the death of the executors appointed by the will of the late proprietor. That being then the question submitted for our opinion, the point for consideration is whether the sanction of the Government is necessary for the institution of the prosecution in a case like that contemplated in the reference. 2. Now the provision of law requiring the sanction of Government is that embodied in Section 197 of the Code of Criminal Procedure which says that "when any Judge or any public servant not removable from his office without the sanction of the Government of India or the Local Government, is accused as such Judge or public servant of any offence, no Court shall take cognizance of such offence except with the previous sanction of the Government having power to order his removal," &c. &c. and the question then is reduced to this, namely, whether the partly charged with the offences under the Calcutta Municipal Act, III (B.C.) of 1899, is accused as a public servant of the offences charged. The party holds the office of Administrator General of Bengal and as such he is not removable from his office without the sanction of the Government of India. The party holds the office of Administrator General of Bengal and as such he is not removable from his office without the sanction of the Government of India. That is conceded; but the contention of the learned Counsel for the Corporation of Calcutta is that the party accused is not accused in this case as the Administrator General of Bengal; that the fact of his being the Administrator General of Bengal is only an accident ; and that another person might have been appointed as administrator to the estate of the late Assaram Burmano and placed in charge of the premises in respect of which the offence charged is said to have been committed. And in support of this contention we are referred to the 4th paragraph of the letter of reference in which it is stated that in the present case the Defendant is referred to in the application for summons both as Administrator General of Bengal and as administrator to the estate of the late Assaram Burmano. 3. It is further argued on behalf of the Corporation of Calcutta that Section 197 of the Code of Criminal Procedure is limited in its application to that class of offences which are defined in chapter IX of the Indian Penal Code and which can be committed only by a public servant as such; and in support of this view the case of Nando Lal Basak v. N.N. Mitter ILR (1899) Cal. 852 is relied upon and also the case of The Municipal Commissioners for the City of Madras v. Major Bell ILR (1901) Mad. 15. 4. On the other hand, the learned Counsel for the Apposite party argues that we must take the words of Section 197 as they are and that those words, taken as they are, would cover a case like the present, where a public servant, namely, the Administrator General of Bengal, who is not removable from his office without the sanction, of the Government of India, is accused of an offence, not in his private capacity in which he has no concern with the premises in respect of which the offence charged is said to have been committed, but in his official capacity as Administrator General of Bengal in which capacity alone he has any concern with the said premises ; and in support of this contention In re Gulam Muhammad Sharifuddaulah ILR (1886) Mad. 439 is cited. 5. After considering the arguments on both sides, the conclusion we come to is this, that Section 197 of the Code of Criminal Procedure is not applicable to a case like the present and that the sanction of the Government is not necessary for the institution of the prosecution such as the letter of reference contemplates. It is true, the party charged with the offence in this case holds the office of Administrator General of Bengal; but it is only an accident that the holder of that office is in charge of the premises in question. The capacity in which he is charged is his capacity as administrator to the estate of the late Assaram Burmano, a capacity which might have belonged to him even though he had not been the Administrator General of Bengal, for the Court might in certain events have appointed any other person than the Administrator General as administrator to the estate of the late Assaram Burmano; and the Administrator General of Bengal is in charge of the premises in question not by virtue of his office but by virtue of his appointment by the court as administrator to the estate of the late Assaram Burmano. The requirement of Section 197, that the party charged should be accused as a public servant of any offence, is, therefore, in our opinion not satisfied in this case. The view we take is in accordance with that taken in the case of Nando Lal Basak v. N.N. Mitter ILR (1809) Cal. 852. 6. It is unnecessary for us in this case to express any opinion as to whether Section 197 of the Code of Criminal Procure is absolutely limited to the offences defined in Chapter IX of the Indian Penal Code. All we decide now is that in a case like the present, one of the requirements of the section, namely, the one we have referred to above, that the party charged is accused as a public servant of the offence with which he is charged, has not been satisfied and that the section, therefore, does not apply to this case. 7. The reference will be returned with the expression of our opinion embodied in the foregoing observations.