MEHTA, J.—The brief facts of this case, as alleged by the complainant Abdul Karim, are that during the famine of the year 1969, Phalodi-Jamba road had to be constructed, connecting Phalodi Jamba with village Naneri. Accused Kadar Khan, Noor Mohammed and Shamsuddin were working as Supervisors for the famine relief work. Accused Sher Mohammed, Mohammed Sharif, Kamarud Din, Mehar Din and Jagmal were working as mates. Accused No. 10 Kher Mohammed was functioning as a Mistry. Accused No. 11 Lakhpat Raj Loonkar, Assistant Engineer (B & R), was in overall charge of the famine work. All the eleven accused persons, according to the complainant, entered into a conspiracy and prepared false muster rolls and made false entries therein that such and such payments had been made to the labourers. But money, as shown in the muster rolls, had been embezzled by the accused persons. The complainant further alleged that false measurements were also entered in the Government record by accused Nos. 10 and 11 in order to wrongfully pocket Government money. On receipt of the above complaint the Munsiff Magistrate, Phalodi, Mr. Jeewan Singh, recorded the statements of Abdul Karim, Fateh Mohammed, Mohin and Hari Singh under sec. 202, Cr.P.C. and thereafter he ordered that the case should be registered against all the accused persons under secs. 409, 466 and 120-B I.P.C. : vide order-sheet, dated August 20, 1969. Against that order a revision petition was filed by accused No. 11 Lakhpat Raj, Assistant Engineer (B & R), in the court of Sessions Judge, Jodhpur. The revision application, it appears, was transferred for its disposal to the court of Additional Sessions Judge No. 1, Jodhpur. The main contention of Lakhpat Raj was that under sec. 197(1), Cr.P.C., he could not be prosecuted for the offences alleged to have been committed by him unless the State Government had accorded sanction for the purpose. Learned Additional Sessions Judge observed that Lakhpatraj could reasonably claim protection under sec. 197, Cr.P.C. and, therefore, prior sanction to prosecute him was necessary. He has accordingly submitted this reference to this court, recommending that the order of the Munsiff-Magistrate, Phalodi, dated August 20, 1969, in so far as Lakhpatraj is concerned, should be quashed. 2. I have heard learned counsel representing Lakhpatraj. I had also an opportunity of receiving assistance from learned Deputy Government Advocate in the matter. Nobody is present on behalf of Abdul Karim. 2. I have heard learned counsel representing Lakhpatraj. I had also an opportunity of receiving assistance from learned Deputy Government Advocate in the matter. Nobody is present on behalf of Abdul Karim. The only point for determination in this case is as to whether sanction under sec. 197, Cr.P.C., for the prosecution of Lakhpat Raj, is necessary. 3. There has been considerable divergence of judicial opinion on the scope of sec. 197(1), Cr.P.C. The question has lately been the subject of consideration by the highest court in this country and by the Privy Council. Hariram Singh vs. Emperor(l), is a decision of the Federal Court on the necessity for sanction under sec. 270 of the Government of India Act, 1935, which is almost identical in terms with sec. 197(1), Cr.P.C. In that case it was observed— "When a public servant simply embezzles some property entrusted to him and thereby commits a criminal breach of trust under sec. 409, he is not doing an act, nor even even purports to do an act in execution of his duty; when he commits the act, he does not pretend to act in the official discharge of his duty. A case like that would not ordinarily fall within the scope of sec. 270(1). But an offence under sec. 477-A Penal Code, is committed if an officer or servant or any one employed or acting in such capacity, wilfully and with intent to defraud falsifies any book or account. Thus, where it is his duty to maintain a record or a register and in maintaining that register he makes some entries which are false to his knowledge, he is certainly purporting to act, though not actually acting in the execution of his duty, because he is making certain entries in the register, knowing them to be false. Hence for prosecution under sec. 409 the consent of Governor is not necessary but for prosecution under sec. 477-A consent is necessary." In H. H. B. Gill vs. The King (2), the question arose directly with reference to sec. 197, Cr.P.C. There, the accused was charged under sec. 161 and 120-B, I. P. C. On the question whether or not sanction was necessary in accordance with the provisions of sec. 197(1), Cr.P.C., it was held by their Lordships of the Privy Council that there was no difference in scope between sec. 197, Cr.P.C., and sec. 197, Cr.P.C. There, the accused was charged under sec. 161 and 120-B, I. P. C. On the question whether or not sanction was necessary in accordance with the provisions of sec. 197(1), Cr.P.C., it was held by their Lordships of the Privy Council that there was no difference in scope between sec. 197, Cr.P.C., and sec. 270 of the Government of India Act, 1935 and approving the statement of the law as laid down by Varada-chariar J., in Hariram Singh vs. Emperor (supra), Lord Simonds held : A public servant can only be said to act or to purport to act in the discharge of his official duty, if his 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." It was accordingly held that as the act with which the accused was charged under sec. 120-B., read with sec. 161, I. P. C, could not be justified as done, by virtue of his office, no sanction under sec. 197(1), was necessary. 4. The view taken is H. H. B. Gills case (supra) was followed by the Judicial Committee of the Privy Council in Albert West Meads vs. The King(3). In that case Lord Morton observed : "A public servant can only he said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. 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. Acts of fraudulently misapplying money entrusted to his care as a public servant cannot be described as acts done by him by virtue of the office that he held. 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. Acts of fraudulently misapplying money entrusted to his care as a public servant cannot be described as acts done by him by virtue of the office that he held. In such a case no sanction is required." In Phanindra Chandra vs. The King (4), Lord Simonds emphasised thus : "A public servant can only be said to act in the discharge of his official duty, if the act is such as to lie within the scope of his official duty. The test may very well be, whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office. Thus, where a person is charged under sec. 161, Penal Code, no sanction under sec. 197 is necessary." Similar views were expressed by their Lordships of the Supreme Court in Ronald vs. State of West Bengal(6). Therein it was laid down that sanction under sec. 197, Cr. P. C, was not necessary for instituting proceedings against a public servant on charges of conspiracy and of bribery. 5. The matter again received the consideration of their Lordships of the Supreme Court in Ramayya vs. State of Bombay (6). In that case his Lordship Bose J., speaking for the Court, held : "If sec. 197, Criminal P.C., is construed too narrowly it can never be applied, for of course it is no part of an officials duty to commit an offence and never can be. But it is not the duty which the courts have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The sanction has content and its language must be given meaning. The courts have to concentrate on the word "offence" in the section. An offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. The sanction has content and its language must be given meaning. The courts have to concentrate on the word "offence" in the section. An offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. Where the elements alleged against the accused a public servant in charge of Government stores are first, that there was an "entrustment" and/or "dominion" ; second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal and fourth, that the disposal was "dishonest", it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of. namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act, was official because the accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered........ In such a case sec. 197, Criminal Procedure Code applies and sanction is necessary, and where there was none the trial is vitiated from the start." Again in Amrik Singh vs. State of Pepsu(7) Amrik Singh was a Sub-Divisional Officer in the Public Works Department, Pepsu and was on the material date incharge of certain public works of a place called Karhali. It was his duty to disburse wages to the workmen employed in the work and the procedure mainly followed was that he drew the amount required from the treasury and paid the same to the employees against their signatures or thumb impressions. In the month of April, 1951 one Parma was mentioned as a "Pualasi" and a sum of Rs. 51/-, was shown as paid to him for his wages, the payment being vouched by thumb impression. In the month of April, 1951 one Parma was mentioned as a "Pualasi" and a sum of Rs. 51/-, was shown as paid to him for his wages, the payment being vouched by thumb impression. The case of the prosecution was that there was in fact no person of the nam*1 of Parma, that the thumb impression found on the acquittance roll was that of the accused himself, that he had included a fictitious name in the acquittance roll with intent to himself draw the amount and that by this expedient he had received Rs. 51/-, and misappropriated the same. It was held by their Lordships of the Supreme Court that when the accused claimed to have paid the amount to Parma and the acquittance roll recorded the payment and when there was an acknowledgment thereof, it was necessary for the prosecution to have obtained sanction. If what appeared on the face of the roll was true or not was not a matter relevant at the stage of the sanction. The act, with which the accused stood charged, fell within the scope of his duties and could be justified by him by virtue of his office. Clearly, therefore, sanction was required under sec. 197(1), Cr.P.C. before the accused could be prosecuted under sec. 409, I. P. C, and the absence of the sanction was fatal to the maintainability of the prosecution. The decisions in Hari Singh vs. Emperor(l), H.H.B. Gill vs. The King(2), Albert Meads vs. The King(3) and Ronald vs. State of West Bengal(5), when properly examined, do not support the extreme view that no sanction was necessarily in a matter like this. On the facts it was held on these authorities that it is not every offence committed by the public servant that required sanction for prosecution under sec. 197(1), Cr.P.C. But if the act complained of is directly concerned with his official duty, then sanction would be necessary and that would be so irrespective of the fact whether it was a proper discharge of his duty or not, because that would really be the matter of defence on the merits, which would have to be investigated at the time of trial and could not be granted at the stage of sanction, which must precede the institution of the prosecution. 6. 6. In this view, it has got to be examined whether the alleged act with which the petitioner Lakhpatraj is charged directly bears on the duties which he had got to discharge as a public servant. According to the complainant, Lakhpatraj petitioner received money from the Government alleged to have been misappropriated by him as an Assistant Engineer. Then it was his duty to make payment of the amount to the workmen after having obtained their signatures or thumb impressions in acknowledgment thereof. The acquittance rolls record the payment. Whether not the signatures or the thumb impressions on the acquittance rolls were genuine is not a matter relevant at the stage of the sanction, if what appears on the face of the rolls is true. The act, with which the petitioner is charged, falls squarely with in the scope of his duty and can be justified by him as done by virtue of his office. Clearly, therefore, sanction is required under sec. 197(1), Cr.P.C., before he can be prosecuted for the offences under secs, 409, 466 and 120-B., I. P. C. In the absence of such sanction, the maintainability of the prosecution can well be challenged. There is no doubt a recent decision on the point in issue, reported in Harihar Prasad vs. State of Bihar (8), wherein his Lordship Roy J., speaking for the Court, observed that it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under sec. 197 of the Code of Criminal Procedure is, therefore, no bar to a prosecution under sec. 120-B. read with sec. 409 of the Penal Code. In Harihar Prasads case Ramayya vs. State of Bombay (6) and Amriksingh vs. State of Pepsu (7) (supra)-had been cited with approval. The facts of Harihar Prasads case are materially different from those of the case in hand. That was a case of dishonestly paying out large sums of Government money under the pretext of speedy implementation of the project to secure pecuniary advantage. That case has nothing to do with the discharge of his official duty in the acquittance rolls and then made payment of the amounts to the workers. That was a case of dishonestly paying out large sums of Government money under the pretext of speedy implementation of the project to secure pecuniary advantage. That case has nothing to do with the discharge of his official duty in the acquittance rolls and then made payment of the amounts to the workers. Here the act complained of is, as has been stated above, directly concerned with the official duty of accused Lakhpatraj and, and, therefore, sanction is a condition precedent to the prosecution. How far the plea of the accused is tenable is not a matter relevant at the stage of sanction. 7. For the foregoing reasons, the reference is accepted and the order of the Munsiff-Magistrate, Phalodi, dated August 20, 1969, is quashed in so far as issuing summons against the petitioner Lakhpatraj is concerned. The prosecution is at liberty to obtain sanction from the proper to authorities and then prosecute the accused.