Judgement Appeal (No. 27 of 1948), by special leave, from a judgment of the High Court (January 16 and 17, 1947) dismissing the appeal of the appellant from the conviction and sentence of twelve months rigorous imprisonment passed on him by the Chief Presidency Magistrate, Calcutta (April 10, 1946). The following introductory statement is taken substantially from the judgment of the Judicial Committee. The charge against the appellant was " That you Phanindra Chandra " Neogy, on or about the 19th day of September, 1945, in the " town of Calcutta, being a public servant to wit, a railway " servant and an inspector in the office of the Regional Controller of Priorities, accepted from one Sohonlal a gratification 11 other than your legal remuneration, to wit, the sum of " Rs. 500/- only as a motive or reward for showing favour to " the said Sohonlal in the exercise of your official functions " relating to an application by the said Sohonlal for being " allowed two wagons, one from Allahabad and another from " Benares and thereby you the said Phanindra Chandra " Neogy committed an offence punishable under s. 161 of the " Indian Penal Code and within my cognizance." As stated, the appellant, who pleaded " not guilty” was convicted and sentenced to twelve months rigorous imprisonment, and, on appeal, the conviction and sentence were upheld by the High Court (Roxburgh and Ellis JJ.) The single ground on which the petition for special leave to appeal was based was that, no sanction for the prosecution of the appellant having been obtained either under s. 270 of the Government of India Act, 1935, or under s. 197 of the Criminal Procedure Code, the Chief Presidency Magistrate had no jurisdiction to try or convict him, and it was on that ground that special leave to appeal was granted, for similar leave had been given in Gill v. The King (1), a case then pending, in which the same question (together with other questions) was raised. 1948. Oct. 20, 21. Pullan for the appellant. 1948. Oct. 20, 21. Pullan for the appellant. The same question that arises in this appeal was brought before the Board in Gill v. The King (( 1948) L. R. 75 I. A. 41.) ; in that case the High Court of Calcutta had decided that sanction for the prosecution was required under s. 197 of the Criminal Procedure Code, but that in point of fact sanction had been granted. Before the Board the necessity for sanction was disputed by counsel for the Crown, but the question was not dealt with by Gills counsel, as stated in the report (Ibid. 48.), on the ground that " it ceases to be " material to Gill, as it had been decided against him that the " sanction that was given was effective/ The Board pro ceeded to express an opinion in that case to the effect that no sanction was necessary, but it is respectfully submitted (a) that their Lordships did not hear Gills counsel on this question, and (b) that they allowed the appeal on an entirely different point. The question, therefore, must still be considered to be res integra before the Board. No sanction was obtained for the prosecution of the appellant in the present case, and if sanction was necessary all the proceedings are null and void. If sanction was unnecessary that would be an end of the case, since it was the only matter on which leave to appeal was given. The appellant does not admit that he was guilty. There is admittedly much difference of opinion among the High Courts in India as to whether the trial of a public servant for accepting a bribe requires the preliminary sanction of the Governor-General or the Provincial Governor as the case may be. [Reference was made to Reg. v. Parshram Keshav (( 1870) 7 Bom. H. C. R. (Cr. There is admittedly much difference of opinion among the High Courts in India as to whether the trial of a public servant for accepting a bribe requires the preliminary sanction of the Governor-General or the Provincial Governor as the case may be. [Reference was made to Reg. v. Parshram Keshav (( 1870) 7 Bom. H. C. R. (Cr. Cas.) 61.), which appears never to have been dissented from; Empress v. Lakshman Sakharam Vaman Hari (( 1877) I. L. R. 2 B. 481, 484.) ; In re Gulam Muhammad Sharif-ud-Daulah (( 1886) I. L. R. 9 M. 439.), in which it was said that a judge who had used defamatory language to a witness could not be prosecuted without sanction ; Nando Lal Basak v. Mitter (( 1899) I. L. R. 26 C. 852, 859-60.), where it was held that no sanction under s. 197 of the Code is necessary unless the judge or public servant commits an offence in his judicial or official capacity ; Raja Rao v. Ramaswamy (( 1927) I. L. R. 50 M. 755.), in which sanction was not necessary in the case of a municipal chairman who had threatened a voter—it does not touch the present case ; Sivaramakrishna Ayyar v. Seshappa Naida (( 1928) I. L. R. 52 M. 347), where the village munsif fabricated a record, and sanction was necessary before the court could take cognizance of the alleged offence ; Gangaraju v. Venki (( 1928) I. L. R, 52 M. 602.) ; Ram Singh v. S. A. Rizvi (( 1934) I. L. R. 14 Pat. 299.) and Khurshed Ahmed v. Amanulla (( 1940) A. I. R. (Cal.) 405.).] In Hori Ram Singh v. The Crown ([ 1939] F. C. R. 159, 178 et seq.) the charge required sanction where the accused had a duty to perform and did not do it, but did something wrong; there is a great similarity between that case and the present one, where the offence must be committed by a public servant and he could only be prosecuted as a public servant. If sanction is not necessary there is no offence which a public servant can commit for which sanction is necessary. If sanction is not necessary there is no offence which a public servant can commit for which sanction is necessary. This was an offence committed by a public servant, and he must be a public servant to take the bribe, and it is part of the essence of the offence that he is taking it to do some official act. This offence was committed after the amendment of the Code in 1923. In Gill’s case (L. R. 75 I. A. 41.) the Federal Court did not express an opinion on the necessity for sanction under s. 197 of the Code, and it is submitted that that part of the judgment of the Board dealing with that matter was not necessary for the decision of the case and was obiter. So far as s. 270 of the Government of India Act, 1935, is concerned, Huntley v. King-Emperor ([ 1944] F. C. R. 262.) expressed the view that no sanction was necessary because bribe-taking is not an act " done or purporting to be done in the " execution of his duty " within the meaning of the section, and sanction was not therefore necessary. That is true, but the difference between s. 197 of the Code and s. 270 of the Act of 1935 is seen when considering the test to be applied in each case as to whether sanction is required or not. That there is a resemblance in the language of the two Acts is probably inevitable, because both are considering acts done by public servants in the execution of their duty, but there the resemblance ends, and the similarity of words also stops. The situation contemplated by the two Acts is different, as also is their scope. The Act of 1935 is providing an indemnity for government servants charged or tried on account of their official acts, a temporary measure designed for a special phase in a transition from one administration to another. The Criminal Procedure Code is an Act for all time, providing for the protection of government servants against possible false accusations of committing criminal offences in the execution of their duties, and, as held so many times, the sanction will always apply when the charge is in respect of one of those offences which are offences only created by statue in the case of public servants. The test is when should sanction be asked for in every case of this kind, and in relation to s. 270 only two questions have to be asked (a) is A. a public servant within the meaning of the Act, and (b) is the act complained of an official act. If those two questions are answered in the affirmative the question of applying for sanction arises. Under s. 197 of the Code there are three questions (a) is A. a public servant; (b) is the act complained of an offence ; and (c) is that offence one said to be committed in the discharge of his official duties ? Under s. 270 the taking of a bribe is not an official act, but under s. 197 he is a public servant, he is charged with an offence (taking a bribe), and it is one committed in the discharge of his official duties. The offence with which the appellant was charged was, therefore, one alleged to have been committed by him " while acting or purporting to act in " the discharge of his official duty/ and the court in taking cognizance of such an offence by a public servant without the previous sanction of the Governor-General acted without jurisdiction. Megaw for the respondent. On the question as to the circumstances in which the Board will reconsider and overrule previous decisions of the Judicial Committee—a matter of general importance—two propositions are here beyond question and cannot be challenged, namely, that the facts of this case are indistinguishable for the purposes of the only issue before the Board from the facts in Gills case (1), and that the Board in Gills case (L. R. 75 I. A. 41.) either decided or, at least, purported to decide the very point which is in issue in this appeal. It cannot, of course, be said that it is not open to the Board to reach a different decision in this appeal, for it is at liberty to review previous decisions, but only in very exceptional circumstances In re Transferred Civil Servants {Ireland) Compensation ([ 1929] A. C. 242, 252.). It cannot, of course, be said that it is not open to the Board to reach a different decision in this appeal, for it is at liberty to review previous decisions, but only in very exceptional circumstances In re Transferred Civil Servants {Ireland) Compensation ([ 1929] A. C. 242, 252.). It is only in cases where it is apparent to the Board that an earlier decision was based on a misapprehension of fact, which is a possibility, or where it is satisfied that in some way it has been misled in the earlier appeal and has given the matter insufficient consideration, that the Board will consider upsetting an earlier decision. There are no such circumstances here. It is unnecessary to refer to the seriousness of the consequences in a matter affecting the whole of the administration of criminal justice in India. The decision in Gills case (L. R. 75 I. A. 41.) has since been treated as good law in India, and if it is now reversed it may well be that there will be a large number of cases in which it could possibly be said that the trial was without jurisdiction because no sanction was given which should have been given. I invite the Board to say quite clearly that that part of its decision in Gills case (L. R. 75 I. A. 41.) which deals with this matter of the sanction was not obiter; that it was an essential of the decision, and was part of the ratio decidendi. The fact that it was not argued by counsel for the appellant cannot affect the question whether or not the decision is a binding effective authority. With regard to the main argument for the appellant, he was challenging the view that s. 197 of the Code is indistinguishable from s. 270 of the Act of 1935, and he submitted that the distinction between the two sections is that s. 197 applies, arid applies only, to offences which are offences only if committed by a public servant. One must assume with regard to such offences that the offence alleged is one which he committed in discharge of his official duty that must be his argument. He sought to draw a distinction because " act " is used in one section arid " offence " in the other, but that is a distinction without a difference. One must assume with regard to such offences that the offence alleged is one which he committed in discharge of his official duty that must be his argument. He sought to draw a distinction because " act " is used in one section arid " offence " in the other, but that is a distinction without a difference. His argument re-writes s. 197 as "is accused of any offence alleged to have been “committed by him, which offence is an offence under the " Indian Penal Code only when committed by a public " servant "-—he is limiting it in one way and expanding it in another. This very point was not overlooked in Gills case (2), and it was very much in the mind of the Board that there was a difficulty with regard to s. 161 of the Penal Code and the other public servant sections. In no case since 1923 has it been said or hinted that s. 197 of the Code was confined to a public servant section. There is no line of unbroken authority of the sort necessary to support the argument for the appellant. The acceptance by a public servant of an illegal gratification is not an act done by him by virtue of his office, and no consent or sanction under either s. 270 of the Act of 1935 or s. 197 of the code was required for the prosecution of the appellant for the offence with which he was charged. Pullan replied. Oct. 21. LORD SIMONDS announced that their Lordships would humbly advise His Majesty that the appeal should be dismissed, and that they would give their reasons later. Nov. 8. The reasons of their Lordships for dismissing the appeal were delivered by LORD SIMONDS who, after the introductory statement set out above, continued In January, 1948, this Board heard, and in February, 1948, delivered judgment in Gill v. The King (L. R. 75. I. A. 41). In the course of that judgment their Lordships thought it proper to express their view on the scope of s. 197 of the Criminal Procedure Code. I. A. 41). In the course of that judgment their Lordships thought it proper to express their view on the scope of s. 197 of the Criminal Procedure Code. Having observed that they found it impossible for any relevant purpose to differentiate between s. 270 of the Government of India Act and s. 197 of the Criminal Procedure Code, they proceeded as follows " A public servant can only be said to " act or purport to act in the discharge of his official duty, if " the act is such as to lie within the scope of his official duty. " Thus, a judge neither acts nor purports to act as a judge in "receiving a bribe, though the judgment which he delivers " may be such an act nor does a Government medical officer " act or purport to act as a public servant in picking the " pocket of a patient whom he is examining, though the " examination itself may be such an act. The test may well " be, whether the public servant, if challenged, can reasonably " claim that what he does, he does in virtue of his office " (Ibid. 59-60.). Applying this reasoning to the case of Gill, a public servant, who had been charged together with one Lahiri, with being a party to a criminal conspiracy to cheat the Government, whereby offences under s. 120B read with s. 420 of the Indian Penal Code were alleged to have been committed, and had also been charged with offences under s, 161 of the Code, their Lordships held that no sanction under s. 197 of the Criminal Procedure Code was necessary. In face of this judgment the present appeal appeared to have little chance of success. It was nevertheless argued fully by counsel, and their Lordships have had the opportunity "of reconsidering the whole question. They cannot accede to the suggestion of counsel that that part of the judgment which has been cited is to be regarded as obiter dictum. The scope of s. 197 and its applicability to Gills case were put in the forefront of the written case he presented to the Board, and it was the first of his formal reasons that the sanction, for which that section provides, ought to have been, but was not, given. The scope of s. 197 and its applicability to Gills case were put in the forefront of the written case he presented to the Board, and it was the first of his formal reasons that the sanction, for which that section provides, ought to have been, but was not, given. The question was argued at length by the respondents, if not by the appellants, counsel, and their Lordships treated it as a matter which required their deliberation and decision. In such circumstances it is irrelevant that a judgment on other points raised in the case might have rendered such a decision unnecessary. Their Lordships, then, have before them a decision on facts which in no material respect differ from those of the present case. Even so, it is, as they recognize, competent for them humbly to tender advice to His Majesty inconsistent with the previous decision, though it can only be in the most exceptional circumstances that such a course should be taken ; see Re Payment of Compensation to Civil Servants under Article 10 of Agreement for a Treaty between Great Britain and Ireland ([ 1929] A. C. 242.) and the cases there cited. Recognizing the possibility, they have heard full argument and, having done so, see no reason to doubt the validity of the reasoning or the correctness of the conclusion in Gills case (L. R. 75 I. A. 41.), and they do not think it necessary to repeat what was said there. Learned counsel for the appellant in the present case laid stress on what he described as a long line of authority in favour of the view that, where the offence charged is an act which would not be an offence unless committed by a public servant, sanction under s. 197 is necessary. Their Lordships, without scrutinizing the authorities, which do not appear entirely to support this view, would observe that it is the words of s. 197, as amended in 1923, and nothing else that must be considered, and that they can see no justification for reading the section as if the words “which under the Criminal Procedure Code is an offence only " if committed by a public servant " were inserted in the appropriate place. It is neither with all such offences nor only with such offences that s. 197 deals. It is neither with all such offences nor only with such offences that s. 197 deals. On the contrary, according to its plain words it deals with offences alleged to have been committed by a public servant " while acting or purporting " to act in the discharge of his official duty.” To these words a meaning was ascribed in Gills case (L. R. 75 I. A. 41.), to which their Lordships, after reconsideration, adhere. It has not been disputed that if s. 197 is so construed, no sanction was necessary for the prosecution of the appellant. Their Lordships have therefore humbly advised His Majesty that this appeal must be dismissed.