JUDGMENT M. Srinivasan, C. J. -There is no merit in this revision petition which is directed against the order of sentence and conviction passed by the Additional Sessions Judge (II), Kangra at Dharamshala. The petitioner was posted as Moharrir Head Constable Incharge of Judicial Malkhana at Dharamshala. He was receiving the case properties relating to various criminal cases which were kept in his custody. The property was to be distributed finally, as per the order of the concerned Courts. In one case F.I. R. No. 82 of 1974 under section 395/397 of the Indian Penal Code which was registered at Police Station, Dharamshala on 14-7.1974 one Machlu Ram was a complainant. One golden Nath, one pair of golden Balies and one golden Tikka were the case properties and they were entrusted to the petitioner herein and they were supposed to be kept in the Malkhana under his control. He has acknowledged the receipt of the said property by making an endorsement at page 191 of the register Ex. P-1 of he Malkhana pertaining to the year 1976. A criminal case which related to the said properties was decided by the learned Additional Sessions Judge Kangra at Dharamshala. In the first week of December 1979, application was moved by the complainant Machlu Ram before the Additional Sessions Judge for return of his property and the Court ordered the same. The petitioner was directed to produce the property before the Court. The petitioner could not produce it and on 10-12-1979 he made a statement marked as Ex. PA. In that statement, the petitioner had seated that he was making in search of the jewellery and other case property and he shall return back the same to Machlu Ram within two day therefrom He did not do so. but on 13-12-1979. some silver ornaments and two wrist watches were returned by the petitioner to Machlu Ram in the Court. For the remaining property, he assured the Sessions Judge that he would return the same on 26 -121979 to Machlu Ram That Statement Marked as Ex. PC, which reads: "Today, as ordered by the Court, out of the deposited property items of silver and two watches as per the statement of Machlu Ram. has been returned back to him as ordered by the Court. PC, which reads: "Today, as ordered by the Court, out of the deposited property items of silver and two watches as per the statement of Machlu Ram. has been returned back to him as ordered by the Court. I am making a search in the Malkhana for the remaining items of gold and which I shall return back to Machlu Ram on 26-12-1979 in the Court itself. Therefore, no action be taken against me till that time." 2. As the petitioner could not produce the remaining case property including one golden Nath. one pair of golden Balies and one golden Tikka, a complaint was registered against the petitioner and he was prosecuted. The Chief Judicial Magistrate, Kangra at Dharamshala found the petitioner guilty of an offence under section 409 of the Indian Penal Code and sentenced him to imprisonment for a period of nine months and to pay a fine of Rs. 1,000. The petitioner filed an appeal before the Additional Sessions Judge (II), Kangra at Dharamshala. The appeal was dismissed by an order dated 4-7-1987. Feeling aggrieved, the petitioner has preferred this revision petition. 3. It may be mentioned that there were number of other similar cases against the petitioner on the footing that he had not returned the case property in those cases also In some cases, he was acquitted and the orders of acquittal were challenged before this Court in Criminal Appeals No. 44 to 51 of 1988, All those appeals were heard by a Division Bench of this Court and disposed of by a judgment dated 7-8-1996, The Division Bench concurred with the decision of the Additional Sessions Judge and dismissed the appeals holding that it was not proved by the prosecution that the petitioner was guilty of an offence under section 409 of the Indian Penal Code. The main reasoning of the Division Bench is that the petitioner was absent from 4-10-1979 to 2-12-1979 and he was not physically incharge of the Malkhana at that time. Though the prosecution case was that the petitioner had absconded, that aspect was not discussed further by the Bench, but the Bench proceeded to point out that some other persons were the Incharge of the Malkhana during that period and they could very well have removed the items of the properties from the Malkhana, On that reasoning, the Bench decided that the petitioner was rightly acquitted, 4. Learned Counsel for the petitioner places reliance on the judgment of the Division Bench and submits that the reasoning of the Bench would apply in the present case also. According to him the cases must be considered on the same footing as the charge against the petitioner was the same under section 409 of the Indian Penal Code, I am unable to agree with this contention of learned Counsel, particularly when there are certain distinguishing features in this case. In the first instance, there are two documents, in which the petitioner had assured the Additional Sessions Judge that he would produce the jewellery, which was entrusted to him within a few days™ The first of them is Ex. PA to which I have already made a reference, in which he agreed to produce the property within two days, but he had produced some of the jewelleries, but not all the items. Again on 13-12-1979, he gave another statement Ex. PC in which he agreed to produce the same on 26-12-1979. If the petitioner had not taken away those items, he would not agree to produce them. On the other hand, he had made a statement that he was not the Incharge of the Malkhana during the relevant time and he did not know what had happened to those properties. But the fact that the petitioner gave two statements agreeing to produce the jewellery and he had produced some of the items itself shows that the reasoning of the Bench given in the judgment in appeal will not apply to the present case and this case has to be decided on the basis of the evidence placed on record in this case by the prosecution. 5. Both the Courts have considered the entire evidence and came to the conclusion that the prosecution has proved beyond doubt the case against the accused and that he is guilty of the offence under section 409. of the Indian Penal Code. On the basis of the evidence, I do not find any justification whatever to differ from the view taken by the Courts below, 6. Learned Counsel for the petitioner urges that the proviso to section 132 of the Indian Evidence Act saves his client. of the Indian Penal Code. On the basis of the evidence, I do not find any justification whatever to differ from the view taken by the Courts below, 6. Learned Counsel for the petitioner urges that the proviso to section 132 of the Indian Evidence Act saves his client. Section 132 provides that a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. The proviso reads that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. I am really surprised that learned Counsel should refer to proviso to section 132 of the Indian Evidence Act in this case. In my opinion neither the section nor the proviso thereto is relevant at all in the present case. The section contemplates only answering of a question as to any matter, which is relevant to the matter in issue in any suit or in any civil or criminal proceeding. In this case, the proceeding had not even started, but the petitioner who was Incharge of the Malkhana was directed to produce the properties entrusted to him. He gave a statement that he would produce the same within a particular time. Such a statement will not fall either under section 132 of the Indian Evidence Act or under the proviso thereto as neither of them was taken by compulsion. Hence, the first contention is rejected. 7. The second contention is that the prosecution has not proved entrustment of the jewellery to the petitioner. This contention is also wholly untenable. The entry at page 191 of the register marked as Ex. P-l shows clearly that the petitioner took charge of the properties in question and they were kept in the Malkhana under his control. 8. The third contention of the petitioner is that the petitioner had no domain over the properties. This contention is only to be stated to be rejected. 9. P-l shows clearly that the petitioner took charge of the properties in question and they were kept in the Malkhana under his control. 8. The third contention of the petitioner is that the petitioner had no domain over the properties. This contention is only to be stated to be rejected. 9. The fourth contention is that the prosecution has not proved the misappropriation by the petitioner himself. This contention is as bad as the other contentions, referred to above. The petitioner, who was Incharge of the Malkhana has not been able to produce the properties, which were entrusted to him as and when called upon to do so. Then the only conclusion possible therefrom is that he has misappropriated the same unless he is able to show that somebody has stolen away the properties. In this connection, learned Counsel says that the reasoning of the Division Bench that the other persons, who were Incharge of the Malkhana between 4-10-1979 to 2-12-1979 could have taken away the properties would help the petitioner. I do not agree. The reasoning of the Bench, pointed out earlier is not relevant in this case in view of the two statements made by the petitioner and the actual production of some of the properties by the petitioner. 10. The last contention raised by the petitioner is that the prosecution did not have the sanction of the concerned authority, as required by section 197 of the Criminal Procedure Code. Under that section, when any person who is a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of official duty, no Court shall take cognizance of such offence except with the previous sanction of the authorities concerned. The crucial words in this section are offence committed while acting or purporting to act in the discharge of his official duty. In this case, the petitioner has been found guilty of misappropriation or concealing the properties. That offence cannot be said to be in any sense an offence committed in the discharge of his official duty or in the performance of his official duty. 11. In this case, the petitioner has been found guilty of misappropriation or concealing the properties. That offence cannot be said to be in any sense an offence committed in the discharge of his official duty or in the performance of his official duty. 11. Learned Counsel for the petitioner placed reliance on a judgment of the Supreme Court in S, B. Saha and others v. M. S. Kochar, AIR 1979 SC 1841. The Court has considered the question at some length and made the following observations : "18. The words any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed in section 197 (I) of the Code, are capable of a narrow as well as a wide interpretation. If these words are constructed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit an offence, and never can be. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of section 197 (1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J. in Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220 at p. 222, it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by section 197 of the Criminal Procedure Code will be attracted." “19. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him." "20. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him." "20. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetical, and depends on the facts of each case, one broad test for this purpose, first deducted by Varadachariar, J. of the Federal Court in Hori Ram v. Emperor, 1939 FCR 159, is generally applied with advantage After referring with approval to those observations of Varadachariar, J., Lord Simonds in H. B Gill v. The King, AIR 1948 PC 128, tersely reiterated that 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.” The above passage itself shows that the offence committed by the petitioner in the present case cannot, by any stretch of imagination, be claimed to be one committed by him in the performance of his office or by virtue of his office. There is no merit whatever in the contentions urged by learned Counsel for the petitioner. In the result, all the contentions urged by learned Counsel for the petitioner fail and the revision petition deserves to be dismissed and it is hereby dismissed. Petition dismissed.