Anil Dev Singh, J. ( 1 ) THIS revision is directed against the order of the Additional Sessions Judge dated August 8, 1995 whereby the order of the trial Court dated June 24, 1993, dismissing the application of the first respondent under section 197 of the Criminal Procedure Code (for short the Code ) was set aside. The allegations on the basis of which the petitioner filed the complaint before the Metropolitan Magistrate are as follows: ( 2 ) ON November 3, 1992 at about 9 a. m. a police party headed by S. I. Sunder Lal of police post Yamuna Vihar, Delhi rang the bell of house No. C-12/464, Yamuna Vihar, Delhi. The door was opened by one Sachin. As soon as the door was opened by Sachin, S. I. Sunder Lal and other members of the police party started beating him. The complainant-petitioner Ritesh Kumar who was present in the house of Sachin protested to S. I. Sunder Lal against the beating of Sachin. S. I. Sunder Lal not liking the intervention of the complainant, caught hold of him and dragged him out of the house. The complainant was thrown in the police van which was standing out side the house of Sachin. He was carried in the van to the police post Yamuna Vihar where he was illegally detained and confined. The first respondent who at the relevant time was S. H. O. of police station Bhajan Pura, directed S. I. Sunder Lal to remove the ring worn by the petitioner and the money which he may be carrying. The statement attributed to the first respondent in Hindi reads as follows: "tum Vakil Ke Bache Ko Le Aye Ho. Jo Angoothi isne pehni hai, aur jo paisa iske pas hai, nikal to. " ( 3 ) PURSUANT to the direction of first respondent, S. I. Sunder Lal took out the gold ring from the petitioner s hand and also recovered a sum of Rs. 550. 00 from his pocket. According to the complaint, the sum of Rs. 550. 00 found in his pocket was paid to the him by his father for making the payment to his tutor on account of tuition fee. As per the complaint, the first respondent obtained the signatures of the petitioner on two blank papers. The incident is said to have been witnessed by Mr. Bahu Dutt Sharma and Mr. 550. 00 found in his pocket was paid to the him by his father for making the payment to his tutor on account of tuition fee. As per the complaint, the first respondent obtained the signatures of the petitioner on two blank papers. The incident is said to have been witnessed by Mr. Bahu Dutt Sharma and Mr. S. S. Bakshi, Advocates, who had come to the police post to seek information relating to the incident of arrest of the petitioner. Mr. Bahu Dutt Sharma, Advocate, requested the officer to release the petitioner and offered to stand surety for him, but he was not released. By then the first respondent had not even registered an FIR against him. Subsequently a false FIR was registered against the petitioner being, No. 546/92, P. S. Bhajan Pura under sections 147/148/149/341/427/34 Indian Penal Code The petitioner was ultimately released on bail the same day at about 5 p. m. after several hours of detention and confinement when his father alongwith Mr. Bahu Dutt Sharma and Mr. S. S. Bakshi, Advocates, again made enquiries from the first respondent about the illegal detention of the petitioner and other detainees who were detained along with him on various grounds, one of them being pelting stones on the police. Even after the release of the petitioner, the ring and the money which was recovered from his person by S. I. Sunder Lal at the instructions of first respondent were not returned to him. On November 7, 1992 the petitioner moved an application before the Metropolitan Magistrate, Shahadara, Delhi for directing the respondents to return the above said items recovered on his Jamatalashi. The Moharir Malkhana of P. S. Bhajan Pura, pursuant to the summons issued by the Metropolitan Magistrate, produced Rs. 50. 00 in cash and a ball point pen as items recovered from Jamatalashi of the petitioner but the petitioner declined to accept the same. Instead he filed the above said complaint in the court of the Metropolitan Magistrate against the first respondent and S. I. Sunder Lal. 50. 00 in cash and a ball point pen as items recovered from Jamatalashi of the petitioner but the petitioner declined to accept the same. Instead he filed the above said complaint in the court of the Metropolitan Magistrate against the first respondent and S. I. Sunder Lal. After recording the pre-summoning evidence the learned Metropolitan Magistrate issued process against the first respondent under sections 409/341 Indian Penal Code and against the S. I. Sunder Lal under sections 452/323/409/341 Indian Penal Code Thereupon, the first respondent moved an application before the learned Metropolitan Magistrate on the ground that the proceedings against him cannot be continued as the prior sanction to prosecute him was not obtained from the Administrator, Union Territory of Delhi. The application was dismissed by the learned Metropolitan Magistrate on August 12, 1994. ( 4 ) FEELING aggrieved of the order of learned Metropolitan Magistrate, the first respondent preferred TO a revision. While accepting the revision the learned Additional Sessions Judge came to the conclusion that the alleged act of mis-appropriation of the personal effects belonging to the petitioner cannot be said to be connected with the official duty of the first respondent as a police officer which he was supposed to discharge. Accordingly, it was held that no sanction under section 197 of the Code was required for prosecuting the first respondent under section 409 Indian Penal Code In so far as the question whether sanction under section 197 of the Criminal Procedure Code. would be required to prosecute the first respondent, the learned Additional Sessions Judge answered the same in the affirmative on the ground that the act of refusal of the first respondent to release the petitioner on bail, in the first instance when the petitioner offered to furnish bail, cannot be said to have no nexus with the discharge of his duty as a police officer. The learned Additional Sessions Judge was also of the opinion that "as one of the two offences for which the first respondent is sought to be prosecuted requires sanction, the joint trial for both the offences would require sanction under section 197 of the Code. " It is this order of the learned Additional Sessions Judge which has been impugned by the petitioner/complainant in the present revision. " It is this order of the learned Additional Sessions Judge which has been impugned by the petitioner/complainant in the present revision. ( 5 ) THE main question which requires determination is whether prior sanction was required under section 197 of the Code of Criminal Procedure for initiating proceedings against the petitioner under sections 409 and 341 Indian Penal Code In order to appreciate the question it will be necessary to refer to section 197 of the Code of Criminal Procedure, 1973. This section reads as follows :- "197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or 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 his official duty, not Court shall take congnizance of such offence except with the previous sanction - (A) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (B) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. PROVIDED that where the alleged offence was committed by a person REFERRED TO to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "state Government" occurring therein, in expression "central Government" were substituted. (2) No Court shall take congnizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (2) No Court shall take congnizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-s (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "central Government" occurring therein, the expression "state Government" were substituted. (3-A) Notwithstanding anything contained in sub-s (3), no court shall take congnizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, exceept with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take congnizance thereon. (4) The Central Government or the State Government ad the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. (4) The Central Government or the State Government ad the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. " ( 6 ) SINCE the respondent is a member of the Delhi Police Force, he does not fall within the category of officers mentioned in sub-section (1) of section 197 of the Code of Criminal Procedure. Therefore, no sanction of the Government would be necessary in order to launch a prosecution against him under section 197 (1), but the case of the respondent would be covered by sub-section (2) of section 197 of the Code of Criminal Procedure. By virtue of notification No. F. 10/77/76-Hq. II dated April 7, 1980 issued by the Lt. Governor of Delhi, provisions of section 197 (2) have been made applicable to the serving police officials of all ranks of Delhi Police Force. This notification was made in exercise of the powers conferred upon the Administrator under sub-section (3) of section 197 of the Code read with Government of India notification No. S. O. 183 (E) dated March 20, 1974. The Supreme Court in Balbir Singh v. D. N. Kadian and another, AIR 1986 S. C. 345, while dealing with the above said notifications came to the conclusion that in case proceedings against the members of the Delhi Police are to be initiated in a criminal court, previous sanction of the Lt. Governor, who is the Administrator appointed by the President under Article 239 (1) of the Constitution with the designation as Lt. Governor of Delhi, is necessary provided the offence alleged to have been committed by a member of the Delhi Police Force has been committed while acting or purporting to act in the discharge of his official duty. A Division Bench of this Court in State (Delhi Administration) v. Sube Singh, 1985 Crl. Governor of Delhi, is necessary provided the offence alleged to have been committed by a member of the Delhi Police Force has been committed while acting or purporting to act in the discharge of his official duty. A Division Bench of this Court in State (Delhi Administration) v. Sube Singh, 1985 Crl. L. J. 1190, on consideration of the provisions of section 140 of the Delhi Police Act, came to the conclusion that section 140 of the Delhi Police Act only lays down the period of limitation within which the cognizance can be taken by the court, and it is sub-section (2) of section 197 which gives protective cover to the officials of the Delhi Police. Therefore, there is no doubt that under section 197 (2) of the Code of Criminal Procedure a police officer belonging to the Delhi Police is entitled to the protection from prosecution without sanction of the appropriate authority provided the offence is committed by him in the course of performance of his official duties as a police officer. ( 7 ) ACCORDING to the decision of the Supreme Court in P. Arulswami v. State of Madras, AIR 1967 S. C. 776, section 197 Criminal Procedure Code. does not extend its protective umbrella to every act or omission of the public servant, but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his official duty. The words "any offence" occurring in the section came for interpretation in S. B. Saha and others v. M. S. Kochar, AIR 1979 S. C. 1841. It was held by the Supreme Court that the words "any offence" alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty are capable of wider as well as narrow interpretation. If words are construed too narrowly, the section would 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 every act of the public servant or a public officer under their protective cover. The real import of these words lies between two extremes. In the wider sense, these words will take every act of the public servant or a public officer under their protective cover. The real import of these words lies between two extremes. If on facts it is prima facie found that the act or omission for which the accused was charged had reasonable nexus with discharge of his duty, then the applicability of section 197 of the Code cannot be disputed. The protection is extended even to those acts or omissions which are done in purported exercise of official duty, or under the colour of office. Official duty implies that the act or omission must have been done by the public servant or the police officer in course of his service and such act or omission must have been performed as part of his official duty. If an act is so intertwined with the performance of his official duty, protective cloak of section 197 would be available to the accused and criminal proceedings initated against him without the sanction of the appropriate authority would stand vitiated. ( 8 ) IN Virupaxappa Veerappa Kadampur v. The State of Mysore, 1963 Suppl. 2 S. C. R. 6, the Supreme Court observed that expression "under colour of something" or "under colour of duty" or "under colour of office", is used in law as well as in common parlance. In common parlance, whenever a person is entrusted with duty of collecting funds for, say, some charity and he uses that opportunity to make money for himself, it can be said that he is collecting money for himself under colour of making collections for a charity. This statement was approved by the Supreme Court in Prof. Sumer Chand v. Union of India and others, JT 1993 (5) S. C. 189. ( 9 ) IN order to understand the real import of the provisions of Section 197 of the Code of Criminal Procedure, it will be useful to refer to the decisions of the Federal Court and the Privy Council in Dr. Hori Ram Singh v. Emperor, AIR 1939 Federal Court 43, and H. H. B. Gill and another v. The King, AIR 1948 Privy Council 128. In the case of Dr. Hori Ram Singh v. Emperor, AIR 1939 Federal Court 43, and H. H. B. Gill and another v. The King, AIR 1948 Privy Council 128. In the case of Dr. Hori Ram Singh v. Emperor(supra) the accused, a Sub-Assistant Surgeon, was charged under section 409 Indian Penal Code for having dishonestly removed certain medicines from the hospital, which were under his charge, to his own residence, and under section 477-A Indian Penal Code for having failed to enter the medicines in the stock book of the hospital. The sanction of the Government had not been obtained for the prosecution of the accused under section 270 of the Government of India Act. The question which fell for determination of the Federal Court was whether such sanction was necessary. It was held that the charge under section 477-A Indian Penal Code required sanction as the official capacity of the accused was involved in the very act complained of as amounting to a crime, but no sanction was required for a charge under section 409 Indian Penal Code because the official capacity was material only in connection with the entrustment and did not necessarily enter into the latter act of misappropriation or conversion which was the act complained of. In H. H. B. Gill and another v. The King (supra) the accused was charged under section 161 Indian Penal Code for taking bribe and under section 120-B Indian Penal Code for conspiracy. The Privy Council held that there was no difference in scope between section 197 (1) of the Code of Criminal Procedure and section 270 of the Govt. of India Act, 1935. The Privy Council also approved the decision of the Federal Court in Dr. Hori Ram Singh v. Emperor (supra ). It was held that a public servant can only be said to act or purported to act in the discharge of his official duty if his act lies within the scope of his official duty. It was, thus, concluded that 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 who he is examining, though the examination may be itself such an act. According to the Privy Council, the test would be whether the public servant, if challenged, can reasonably claim that, what he does, he does by virtue of his office. Applying such a test to the case before it, it was held that the appellant could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held. The above decisions of the Privy Council and the Federal Court have been followed in various judgments of the Supreme Court as well as the High Courts. In the case of P. Arulswami v. State of Madras (supra) these two decisions were also noticed and followed. In Om Parkash Gupta v. State of U. P. , AIR 1957 S. C. 458, it was held that where the offence is unconnected with the official duties there can be no protection. It is only when it is either within the purview of the official duties or in connection with it that the protection can be claimed. In Baijnath v. State of M. P. , AIR 1966 S. C. 220, it was held that the sanction of the State Government was not necessary for the purpose of the prosecution of the appellant under section 409 of the Indian Penal Code because the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in discharge of his official duties and the offence had no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or opportunity of committing the offence. ( 10 ) APPLYING the above dicta and the tests laid down in the above decisions, I am of the opinion that for the alleged offence committed under section 409 of the Indian Penal Code, no protection can be claimed by the first respondent under section 197 (2) of the Code of Criminal Procedure as the act of criminal misappropriation is not connected with the discharge of official duties. The official capacity is only connected with the entrustment and not with the act of misappropriation. The official capacity is only connected with the entrustment and not with the act of misappropriation. The Supreme Court in S. B. Saha and others v. M. S. Kochar (supra) following the same line of reasoning held that in a case under section 409 Indian Penal Code the official capacity is material only in connection with the entrustment of the property and does not necessarily enter into the later act of misappropriation or conversion. It is significant to note that in five decisions of the Supreme Court, Federal Court and the Privy Council, namely, S. B. Saha and others v. M. S. Kochar; Baijnath v. State of Madhya Pradesh; and P. Arulswami v. State of Madras; Dr. Hori Ram Singh v. Emperor; and H. H. B. Gill and v. The King, it was held that the sanction of the State Government was not necessary for the prosecution of a public servant under section 409 Indian Penal Code Learned counsel for the respondent relied upon the decision of the Supreme Court in Amrik Singh v. State of Pepsu, AIR 1955 S. C. 309, which laid down that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is required. But if they are unconnected with such duties, then no sanction is necessary. The correctness of the decision was doubted in Baijnath v. State of Madhya Pradesh (supra) and its authority appears to have been badly shaken. Besides, Amrik Singh s case (supra) turned on its own facts. Similar is the position of the decision of the Supreme Court in Shreekantiah Ramayya Munipalli and another v. State of Bombay, AIR 1955 S. C. 287. It is not necessary to notice other decisions of the various High Courts cited by the learned counsel for the respondent with regard to the question as to whether sanction is required under section 197 of the Code of Criminal Procedure in respect of offence under section 409 Indian Penal Code as the law has been crystalised by the Supreme Court, Privy Council and the Federal Court in the above noted five cases. ( 11 ) IN so far as the alleged offence under section 341 Indian Penal Code is concerned, the protection of section 197 (2) of the Code of Criminal Procedure would be available to the first respondent as the allegation against him is that even though the offences under sections 452/323/409/341 Indian Penal Code, for which the petitioner was arrested, were bailable, bail was not granted in the first instance even though Bahu Dutt Sharma, Advocate, who came to enquire about the incident of arrest of the petitioner, was ready to stand surety for him. The alleged act of the first respondent is clearly connected with discharge of his duty. In Somchand Sanghvi v. Bibhuti Bhusan Chakravarty, AIR 1965 S. C. 588, the respondent refused to enlarge the appellant on bail, though the offence for which the respondent was arrested was a bailable one, as he wanted the appellant to settle the matter with the opposite party. The Supreme Court was of the opinion that the question whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent police officer and if, while exercising a discretion, he acted illegally by saying that the bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a police officer. For this reason it was held that the sanction of the appropriate authority for the prosecution of the respondent police officer under section 341 Indian Penal Code was necessary under section 197 of the Code of Criminal Procedure. ( 12 ) APPLYING the principle laid down by the Supreme Court in Somchand Sanghvi v. Bibhuti Bhusan Chakravarty s case (supra) to the instant case, the respondent cannot be said to have acted otherwise than in his capacity as a police officer in refusing to release the petitioner on bail. An act done in excess of the authority of a public servant or a police officer is not taken out of the purview of the said section. Therefore, alleged offence under section 341 has been committed by the first respondent in the course of his service and the discharge of his duties. This being so, sub-clause (2) of section 197 would be attracted. Therefore, alleged offence under section 341 has been committed by the first respondent in the course of his service and the discharge of his duties. This being so, sub-clause (2) of section 197 would be attracted. ( 13 ) THEREFORE, the position which emerges is that while no sanction under section 197 of the Code of Criminal Procedure is required for the prosecution of the first respondent under section 409 Indian Penal Code, the same, however, is required for prosecuting him under section 341 Indian Penal Code Now the question is whether in case of a public servant, who is prosecuted simultaneously for more than one offence, one of which requires sanction under section 197, the trial court can proceed with the trial qua the offences for which no sanction is required. The answer to the question will depend upon the facts of each case. If the offences of which a public servant is accused of are distinct offences, section 197 of the Code of Criminal Procedure will not bar the trial of the accused for the offences of which no sanction is required. In the instant case the offences of which the first respondent is accused of are distinct and separate in nature. Offence under section 409 relates to the alleged misappropriation of money and gold ring belonging to the complainant, while offence under section 341 relates to false imprisonment of the complainant as he was not released on bail in the first instance when he offered to furnish bail even though the offence of which he was accused of was a bailable one. The alleged offences were not committed by the first respondent as a part of the same transaction. Ingredients of offences under section 409 Indian Penal Code and 341 are totallydifferent and have no concern with each other. Since the quality of the two offences is distinct, there is no bar to the trial of the first respondent for an offence under section 409 Indian Penal Code as it does not fall within the scope and ambit of section 197 of the Code of Criminal Procedure. Since the quality of the two offences is distinct, there is no bar to the trial of the first respondent for an offence under section 409 Indian Penal Code as it does not fall within the scope and ambit of section 197 of the Code of Criminal Procedure. In Durgacharan Naik and others v. State of Orissa, AIR 1966 S. C. 1755, the apex court held as follows :- " It is true that most of the allegations in this case upon which the charge under S. 353 Indian Penal Code is based are the same as those constituting the charge under S. 186 Indian Penal Code but it cannot be ignored that Ss. 186 and 353 Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offrence the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186 Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharged of of his public functions but under S. 353 Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while S. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well established that S. 195 of the Criminal Procedure Code. does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. " ( 14 ) APPLYING the principle laid down by the Supreme Court in the aforesaid case I am of the view that the learned Additional Sessions Judge was not right in setting aside the order of the Metropolitan Magistrate in its entirety. The learned Additional Sessions Judge would have been justified in setting aside the order of the Metropolitan Magistrate in so far as it held that no sanction was required to prosecute the first respondent under section 341. The learned Additional Sessions Judge would have been justified in setting aside the order of the Metropolitan Magistrate in so far as it held that no sanction was required to prosecute the first respondent under section 341. Learned counsel for the first respondent strongly relied upon the following observations of this Court in Gurinder Singh and another v. State, 63 (1966) D. L. T. 104 :- " On the facts of this case it would hardly be possible to separate the element of insult from the so called assault because the two are so interwoven in the episode, that they become merged one with the other. Hence by adopting and resorting to the device of Section 353 which is a camouflage the prosecution could not evade the provisions of Section 195, Criminal Procedure Code. in this case. The facts have to be considered as a whole. There cannot be splitting up of the facts. Considering the acts as a whole if these disclose an offence for which a special complaint is necessary under the provision of Section 195, Criminal Procedure Code. the Court cannot take cognizance of the case at all unless that special complaint had been filed. In the instant case the very act of obstruction lies in the alleged assault and use of criminal force. In substance the offence in question would fall in the category of Section 195, Criminal Procedure Code. and it was not open to by-pass its provisions even by choosing to prosecute under Sections 353/506 Indian Penal Code Mr. R. D. Jolly as pointed above had conceded that charge on the facts of this case under Section 353, Indian Penal Code is not made out because the public servant was not prevented or deterred in the discharge of his official duties. ( 15 ) AS is clear from the above said observations it would hardly be possible to separate the elements of the various offences for which the accused was prosecuted. The above case has no relevance to the case in hand as the two offences alleged against the first respondent are totally different and separate, and are not twisted together. ( 15 ) AS is clear from the above said observations it would hardly be possible to separate the elements of the various offences for which the accused was prosecuted. The above case has no relevance to the case in hand as the two offences alleged against the first respondent are totally different and separate, and are not twisted together. ( 16 ) ON the touch stone of the judgment of the Supreme Court in the case of Durgacharan Naik and others v. State of Orissa (supra) it is manifest that the whole of the proceedings are not vitiated for lack of prior sanction for prosecuting the first respondent under section 341 Indian Penal Code Only that part of the proceedings which relate to the offence under section 341 Indian Penal Code are illegal. Therefore, the cognizance taken by the learned Metropolitan Magistrate needs to be confined only to the offence under section 409 Indian Penal Code ( 17 ) ACCORDINGLY, the order dated August 8, 1995 of the learned Additional Sessions Judge is set aside and the learned Metropolitan Magistrate is directed to proceed against the first respondent only with regard to the offence under section 409 Indian Penal Code It will, however, be open to the first respondent to urge before the learned Metropolitan Magistrate that the facts as disclosed in the complaint do not make out a case of misappropriation against him and therefore he could not be summoned for standing trial under section 409 Indian Penal Code If such a plea is raised, the learned Metropolitan Magistrate shall consider the same. ( 18 ) REVISION is disposed of.