minal Appeal No 127 of 1960
Appeal by special leave from the judgment and order dated August 4 1958 of the former High Court at Bombay in Criminal Revision Application No 728 of 1958
B P Maheshwari for the appellant
452 Vir Sen Sawhney R H Dhebar and T M Sen for the respondent
March 17
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
This appeal by special leave is directed against the judgment of the Bombay High Court
The appellant was a  Third Class Magistrate at Sanand in 1951
He received Rs 200 in cash from Amar Singh Madhav Singh as deposit for security to be released on bail
This amount was not credited in the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to the amount
The appellant was dismissed from service on April 4 1953 as a result of a departmental enquiry
On June 9 1954 a complaint was filed on behalf of the State against the appellant
He was convicted of the offence under section 409 Indian Penal Code by the Trial Magistrate
The conviction was confirmed by the Extra Additional Sessions Judge Ahmedabad
His revision was dismissed by the High Court
The only point urged in this appeal is that the learned Magistrate should not have taken cognizance of this offence without the previous sanction of the State Government in view of the provisions of section 197 Code of Criminal Procedure
It is not disputed that a Court could not have taken cognizance of this offence against the appellant if he had been a Magistrate on June 9 1954
The appellant was not a Magistrate on June 9 1954 when the complaint was filed
The question then is whether the provisions of section 197 of the Code of Criminal Procedure prohibit a Court from taking cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date the Court takes cognizance
Sub section 1 of section 197 Code of Criminal Procedure reads 1 When any person who is a Judge within the meaning of section 19 of the Indian Penal Code or 453 when any Magistrate or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central 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 a in the case of a person employed in connection with the affairs of the Union of the Central Government and b in the case of a person employed in connection with the affairs of a State of the State Government
 There cannot be much scope for the contention that a Court is prohibited from taking cognizance of an offence committed by a Judge while acting or purporting to act in the discharge of his official duty only when that person is a Judge at the time cognizance is taken as otherwise full effect will not be given to the expression any person who is a Judge  in the subsection
Similar expression is not used in describing a Magistrate or a public servant
But it is clear that those two persons should also be Magistrate or a public servant  at the time cognizance is taken of an offence committed by them while acting or purporting to act in the discharge of official duty
In connection with public servant  the expression who is not removable from his office save by or with the sanction of a State Government or the Central Government indicates that
It is only when the public servant concerned is in service that the question of his removal from office can arise
If the public servant has ceased to be a public servant no such question arises
Therefore it seems proper to construe the expression when any Magistrate  in the sub section to mean when a person who is a Magistrate 
Even if the expression be not construed in this form the section says when any Magistrate is accused of any offence 
This indicates that it is only when the accusation is against a Magistrate that the Court will not take cognizance of an offence committed by 454 him while acting in the discharge of his official duty without previous sanction
If a person is not a Magistrate at the time the accusation is made the Court can take cognizance without previous sanction
It has been strenuously urged on behalf of the appellant that the expression when any Magistrate is accused of any offence  refers to the stage when the accusation is first made against the Magistrate that is to say when it is alleged for the first time that the Magistrate has committed such an offence
There seems to be no justification to add the word first  and read this expression as when any Magistrate is first accused of any offence 
The occasion when such an allegation is made for the first time against a Magistrate is not in connection with the Court s taking cognizance of the offence but will always be either when a complaint is made to a superior officer in the department or to the police
Both these authorities are free to inquire into the accusation
It is only when the departmental enquiry or the police investigation leads to the conclusion that the matter is fit for going to Court that a complaint would be made or a police report would be submitted Io the proper Court for taking action against the Magistrate
It is at this stage that the Magistrate would be accused of the offence for the purposes of the Court and therefore it would be then that the Court will see whether the person proceeded against is a Magistrate or not
This view finds further support from the language of the clauses a and b
The previous sanction according to these clauses will be of the Central Government if the Magistrate is employed in connection with the affairs of the Un ion and of the State Government if he is employed in connection with the affairs of a State
If the person is not employed no sanction is necessary
Whether the person is so employed or not is to be seen shortly before the submission of the complaint or police report to the Court
The sanction can be given by the proper authority on a consideration of the allegations and evidence available to establish them and therefore only after the investigation is complete
The submission of the 455 complaint or police report is expected to follow the grant of sanction within a reasonable time
A similar question arose in section A Venkataraman vs The State 1 in connection with the interpretation of the provisions of section 6 of the Prevention of Corruption Act 1947 Act II of 1947
Sub section 1 of that section reads 1 No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under subsection 2 of section 5 of this Act alleged to have been committed by a public servant except with the previous sanction a in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government of the Central Government b in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government of the State Government c in the case of any other person of the authority competent to remove him from his office This Court said at p 1046 The words in section 61 of the Act are clear enough and they must be given effect to
There is nothing in the words used in section 61 to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance although he had been such a person at the time the offence was committed 
A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority
 The same can be said with respect to the provisions of section 197 of the Code of Criminal Procedure
We therefore hold that no previous sanction is necessary for a Court to take cognizance of an offence committed 1 1958 SGR 1037 456 by a Magistrate while acting or purporting to act in the discharge of his _official duty if he had ceased to be a Magistrate at the time the complaint is made or police report is submitted to the Court ie at the time of the taking of cognizance of the offence committed
We accordingly dismiss the appeal
Appeal dismissed


Summary:
The appellant a Magistrate was dismissed from service as a result of a departmental enquiry
On a complaint filed by the State Government he was convicted under section 409 of the Indian Penal Code
The point urged was that the trial Magistrate should not have taken cognizance of the offence without the previous sanction in view of the provisions of section 197 of the Code of Criminal Procedure
Held that no previous sanction was necessary for a Court to take cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty if he had ceased to be a Magistrate at the time the complaint was made or police report was submitted to the Court ie at the time of the taking of cognizance of the offence committed
section A Venkataraman vs The State  applied