Criminal Appeal No 387 of 1990
From the Judgment and Order dated 1211984 of the Gujarat High Court at Ahmedabad in Misc
Application No 48 of 1982
SH Sheth and SC Patel for the Appellant
B Datta Sunil Dogra and PH Parekh for the Respondents
The Judgment of the Court was delivered by FATHIMA BEEVI J
Leave granted
The appellant is aggrieved by the judgment of the High Court holding that sanction of the State Government as required under Section 197 Cr
PC is not necessary for taking cognizance of the offences against the appellant on the basis of the complaint filed by the respondent
The appellant is an employee of the Municipal Corporation Ahmedabad
While holding the post of Laboratory Officer the State Government by a Notification dated 21121966under Section 8 of the Food Adulteration Act 1954 appointed the appellant as a Public Analyst for the local area comprised within the limits of the Corporation
The complaint was filed by the respondent before the Magistrate for the of fences punishable under Sections 465468 and 201 IPC alleged to have been committed by the appellant while exer cising the functions as Public Analyst
513 The appellant moved the High Court under Section 482 Cr
PC for quashing the criminal proceedings on the ground that he being a public servant removable from office only by the State Government the Magistrate could not take cogni zance of the offence alleged to have been committed while discharging the duties as Public Analyst without the requi site sanction under Section 197 Cr
The High Court rejected this contention and dismissed the petition
Under Section 1971 Cr
PC when 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 no Court shall take cognizance of such offence except with the previous sanction of the Government
The section extends immunity from irre sponsible frivolous and vexatious prosecution
The privi lege of immunity from prosecution without sanction extends only when the accused is a public servant of the kind men tioned therein
He must be a public servant as defined in Section 21 of the Indian Penal Code and not removable from his office save by or with the sanction of the State Govern ment or the Central Government as the case may be
The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty
Section 21 I PC reads as under 21
Public servant The words public servant denote a person falling under any of the descriptions hereinafter following namely Twelfth 
Every person a in the service or pay of the Government or remu nerated by less or commission for the performance of any public duty by the Government b in the service or pay of a local authority a corporation established by Or under a Central Provincial or State Act or a Government company as defined in Section 6 17 of the  1 of 1956
Section 197 Cr
PC clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks 514 should the sanction of the government to their prosecution be necessary
While a public servant holding an office of the kind mentioned in the Section is as such public servant appointed to another office his official acts in connection with the latter office will also relate to the former of fice
The words removable from office occurring in Section 197 signify removal from the office he is holding
The authority mentioned in the section is the authority under which the officer is serving and competent to terminate his services
If the accused is under the service and pay of the local authority the appointment to an office for exercising functions under a particular statute will not alter his status as an employee of the local authority
The appellant herein is admittedly the Laboratory Offi cer in the service and pay of the Municipal Corporation of Ahmedabad
The appointment as Public Analyst by the Govern ment does not confer on him the status of a public servant or an officer under the service and pay of the Government
He is not remunerated by any fee by the Government
The appellant was not the employee of the State Government and was not employed in connection with the affairs of the State
He was not holding any public office in connection with the affairs of the State
The State Government had merely entrusted him with the functions of a Public Analyst which could be granted and taken by an administrative act
It was on account of his being employed by the Municipal Corporation that he was appointed as a Public Analyst by the Government
He is not appointed as Public Analyst in the cadre against any post
The Prevention of Food Adulteration Act also does not contain any deeming provision to treat the Public Analyst as a public servant
The appellant is holding an office from which he is removable by the Local Authority and not by the Government
The cancellation of the appointment as Public Analyst would not amount to removal from office
Section 197 Cr
PC in this context contemplates the removal of the appellant from the office of the Laboratory Officer and not his transfer or removal from the office of the Public Analyst
The removal of the appellant from the office of Public Analyst would not affect his office as a Laboratory Officer under the Local Authority and would not amount to removal from office
The appellant is not therefore a public servant removable only by the State Government
The High Court was right in its view
We accordingly dismiss the appeal
Y Lal Appeal dismissed


Summary:
S and R were brothers who carried on the business of gold smithery and a partition took place between them in 1918
R got 2 houses and land in Survey No 71
Later on one of the sons of R instituted a suit claiming that Survey No 71 was an ancestral property and that some of the suit properties were purchased by R out of the income and subsequently the sale proceeds of the land
The defendants viz the other children of R contended that Survey No 71 was purchased by S and R with the income they derived from gold smithery and the suit properties except the two houses which were admittedly the ancestral properties were not the joint family properties in which the plaintiff could claim his share
The Trial Court decreed the suit in favour of the plain tiff
On appeal by the defendants the First Appellate Court reappreciated the evidence found infirmities in the conclu sions arrived at by the Trial Court and dismissed the suit except to the extent of plaintiff s share in the two ances tral houses on the basis of its finding that the other properties were self acquired properties of R During the pendency of the suit R died
By virtue of his will the self acquired properties of R went to the defend ants and the plaintiff was left out
The plaintiff preferred an appeal before the High Court against the order of the First Appellate Court
The High Court interfered with the said findings of facts and held that since Survey No 71 had come to the share of R in general partition it was ancestral property
it further observed that since the said property was yielding income with the help of which the other properties could have been purchased and since 436 further the gold smithery business was an ancestral busi ness the properties purchased with the help of such income should be held to be joint family properties
Aggrieved the defendants have filed this appeal
Allow ing the appeal HELD 1
There was no question of law involved in the second appeal
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved substantial question of law it could not entertain it and that before it could entertain it the Court had to formulate such question
440F 21 It was not disputed at any time that the property in Survey No 71 had all along stood in the name of Supadu and therefore the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of his father cannot be said to be unreasonable
There is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No71
In fact the uncontroverted evidence on record shows that Ramchandra had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labourers who brought their own implements and bullocks
This shows that the family derived less than normal income from the said land
It was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such and was doing his busi ness as goldsmith and earning sufficient income
440A D 22 The High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so
What is further the plaintiff s case was that the suit properties were purchased with the income from Survey No 71
Thus it is obvious that the conclusions which were arrived at by the First Appellate Court were reasonable and legal besides being conclusions of facts
440D E