JUDGMENT Thomas, C. J. 1. Mohammad Zaman has been convicted by the Railway Magistrate Lucknow, u/s 408 I. P. C. and sentenced to one year's rigorous imprisonment. His conviction and sentence have been upheld by the learned Sessions Judge of Lucknow. 2. The charge against the accused was that he in October 1943 being a servant of the complainant was entrusted with twenty-eight bags containing katha which he sold, and dishonestly misappropriated the money. The accused's case was that he was not the servant of Krishna Gopal, complainant, and that the business was his. He further stated that the licence was in his name when he took the contract but as he did not have sufficient money, he approached the complainant and it was settled between them that the complainant would advance the money in his capacity as a money lender and would get Rs. 1-8 per cent per mensem interest, and commission of! Rs. 4 per bag. He further stated that as the complainant did not give him sufficient money, he (the accused) had to buy paddy worth Rs. 1,800 on credit to feed the labourers and also had TO mortgage his house to raise more money. He also stated that he and the complainant executed a joint promissory note for Rs. 4,650 in favour of Debi Prasad and the complainant refused to pay his share when the accused demanded it. The "accused further stated that the complainant took 51 bags of katha and sold it at Cawnpore and when he (the accused) demanded his share of the money he only gave Rs. 200 and refused to render accounts. 3. Krishna Gopal filed the complaint on the 18th November, 1943 and briefly the prosecution case is that the accused Mohammad Zaman visited the complainant in September 1942 and persuaded him to start a business in katha in Nepal territory in consequence of which an oral agreement was entered into between the parties in the presence of Sheo Prasarf Gupta and the complainant's father by which it was agreed that the accused would work as a servant of the complainant on Rs. 40 a month and food and would render accounts and deliver the katha at Lucknow, that the licence was taken in the name of the accused and the business was carried on for sometime. 40 a month and food and would render accounts and deliver the katha at Lucknow, that the licence was taken in the name of the accused and the business was carried on for sometime. It was alleged that the complainant went to Rampur, district Palpur in Nepal territory but had to return to Lucknow on account of his serious illness, that he entrusted twenty-eight bags of katha with the accused and asked him to send them to Lucknow but the accused said that it was the rainy season and it would be difficult to get labourers, so he would send them after the rains, that in October, 1943 the accused dishonestly sold the twenty-eight bags of katha to Ramzan accused No. 2 and misappropriated the money and that the accused when called upon to render accounts refused to do so. 4. The accused admittedly sold twenty-eight bags of katha for Rs. 3,600 at Butwal which is in Nepal territory and kept the money. 5. Both the lower Courts have found that the accused was a servant and not a partner of the complainant. On behalf of the accused the question of jurisdiction was raised and the magistrate relying on a decision of this Court reported in Brij Kishore v. Chandrika Prasad A I R 1996 Oudh 329, has come to the conclusion that he had jurisdiction ,to entertain the complainant. The learned Sessions Judge on the other hand was of opinion that the lower Court had no jurisdiction but as the accused had not been prejudiced, he rejected the plea. He observed as follows From the complainant's evidence on record, the Court below has found that there was no agreement to deliver the goods at Lucknow only. It is also clear that the money was paid at Pachparwa or Nautanwa or Lucknow. It also appears that the katha, the subject of the charge was sold at Butwal. This is not situated in Lucknow district. The offence of criminal breach of trust was thus not committed in this district and the lower Court had no jurisdiction. The objection was raised in the lower Court but not accepted. The plea about jurisdiction will prevail in the appellate Court only if it can be shown that the appellant has been prejudiced. It has not been shown how the appellant was prejudiced. The plea must therefore be rejected. 6. The objection was raised in the lower Court but not accepted. The plea about jurisdiction will prevail in the appellate Court only if it can be shown that the appellant has been prejudiced. It has not been shown how the appellant was prejudiced. The plea must therefore be rejected. 6. On behalf of the accused a new argument has been advanced. This argument was not advanced in the lower Court and it is .that u/s 188 Cr. P. C. no certificate had been obtained from the Political Agent in Nepal and therefore the trial was illegal. Section 188 lays down that when a British subject commits an offence in the" territories of any Native Prince or Chief in India, he may be dealt with in respect of such offence as if it had been committed at any place within British India at which he may be found provided that no charge as to any _such offence shall be inquired into in British India unless the Political Agent, if there is one, for the territory in which the ' offence is .alleged to have been committed, certifies that, in his opinion, the charge ought to be inquired into in British India and when there is 110 Political Agent, the sanction of the Local Government shall be required. On behalf of the complainant it -"is, conceded by the learned Counsel that no such certificate of the Political Agent as required' by, Section 188 Cr. P. C. was obtained.. It is further conceded that the katha was sold at Butwal which is not situated in Lucknow district but the contention of the complainant's counsel is that this point was never raised in the lower Courts and should not be allowed to be raised now. He has further argued that as the accused has not been prejudiced, the provisions: of Section 537 Cr. P. C. will cure the defect. He has also relied on the case of Brij Kishore v. Chandrika Prasad mentioned above. This liecision is based on the construction of Section 181 (2) Cr, P. C. which lays ,down that the offence of criminal misappropriation or criminal beach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction arty part of the property which is the subject of the offence was . received or retained by the accused person, of the offence was committed. received or retained by the accused person, of the offence was committed. Brij Kishore's decision as far as the facts of that case are concerned, lays down perfectly good law but in the case before me, the facts are different. I am of the opinion that the accused was not under a duty to render any accounts at Lucknow and even assuming that it was so, I am of the opinion that this alone will not help the complainant. The pro- visions of Section 188 Cr. P. C. are mandatory and the absence of the certificate of the Political Agent or the British Envoy at Nepal, required by Section 188 is in my opinion an absolute bar to the trial of a case to which .the provisions of that section apply. The question "of certificate goes to the root of the case and Section 537 Cr. P. C. cannot be used to cute a clear illegality or a clear transgression of the mandatory provisions of law. Section 179 Cr. P. C. also has no bearing to such .cases. 7. The learned counsel for the complainant relied on the case of AIR 1934 827 (Lahore) in which it was held that absence of a certificate u/s 188 is curable u/s 537, if it has not occasioned a failure of justice. This case no doubt helps the complainant. But I must point out that before the trial concluded, the certificate in this case was actually obtained. It is mentioned in the judgment that The absence of a certificate between the 27th March, 1933 (the date of accused's arrest) and the 15th May, 1933, when a certificate by the Local Govarnment was granted was a defect curable u/s 637 Cr. P. C. 8. This Lahore case was not followed in Khawas Habib v. Emperor AIR 1940 Pesh 4 in which it was held that the Magistrate had no jurisdiction to try a case in the absence of a certificate or sanction, and trial without a certificate or sanction is void.. With regards to the decision reported in AIR 1934 827 (Lahore) the Hon. Judges observed as follows The learned Advocate General has referred to a case reported in A. I. R. 1934 Lah, 821 in which it was held, that the failure to produce such a certificate merely amounted to an irregularity u/s 537 (Cr. With regards to the decision reported in AIR 1934 827 (Lahore) the Hon. Judges observed as follows The learned Advocate General has referred to a case reported in A. I. R. 1934 Lah, 821 in which it was held, that the failure to produce such a certificate merely amounted to an irregularity u/s 537 (Cr. P. C. and was not sufficient to have the conviction set aside if in fact there had been no miscarriage of justice. The learned- Advocate General admitted that Lahore was the only High Court in India which took this view. There was a case decided by a Bench of this Court reported in A. I. R. 1937 Peshawar 52 in which the sanction of the proper authority to-the prosecution had not been given and it was held that the case was covered specifically by the provisions of Section 6,30 Cr. P. C. We are of opinion that the learned Magistrate tried Khawas for an offence for which he was not empowered by law to try him and therefore the trial of Khawas on, this charge is void..... 9. There is, no doubt that Lahore was the only High Court in India which took that view and the learned Advocate General rightly admitted that fact. The unanimous view of the Allahabad, Bombay, Calcutta, Madras and Patna High Courts is that a trial without obtaining a certificate is ultra vires and void. In the case of T. Fakhrulla Khan and Others Vs. Emperor, AIR 1935 Mad 326 it was held that under the terms of" Section 188 Cr. P. C. as it stands, a Court in British India cannot try an offence by virtue of the terms of Section 179 merely because part of the consequences have ensued within its jurisdiction if some part of the offence had been committed in a Native State. The section render the certificate of the Political Agent necessary even in such cases. There is another case reported in the same volume at page 189 T. Sreeramamurthy Vs. Emperor, AIR 1935 Mad 189 which holds the same view. In the case of Rapt Prasad Garuv Emperor AIR 1980 Pat 601 a Bench of that Court held that the sanction of the Political Agent or the Local Government u/s 188 is imperative and the omission to obtain it vitiates the trial and conviction. Emperor, AIR 1935 Mad 189 which holds the same view. In the case of Rapt Prasad Garuv Emperor AIR 1980 Pat 601 a Bench of that Court held that the sanction of the Political Agent or the Local Government u/s 188 is imperative and the omission to obtain it vitiates the trial and conviction. The same view was taken in the case of Queen Empress v. Baku (1900) 24 Bom 287 and I respectfully say that this is the correct view. In the case of Thakur Raghubar Singh v. K.B. 1944 FLJ 60 : AWR.(F C) 15 : OA (F C) 15 the Hon'ble Judges of the Federal Court held that a valid previous sanction is essential to the jurisdiction of the Court to entertain the proceedings. It is true that the case was under the Insurance Act but in my opinion the principle involved is the same. 10. I am therefore of opinion that the trial of Mohammad Zaman without the proper certificate was void and his conviction must be set aside. 11. I accordingly allow the application, set aside the conviction and quash the proceedings. I ex- press no opinion on the merits of the case and I must point out that this order will not bar the further prosecution of the accused in case the complainant obtains the necessary certificate from the Political Agent as required by Section 188 Cr. P. C. if he is to advised. The accused is on bail and tits bail bond is canceled.