Harries, C.J.This is a reference made by the learned Deputy Commissioner of Hazaribagh recommending that certain criminal proceedings against one Capt. Angelo which were commenced without the previous sanction of the Provincial Government be quashed.

On 3rd February 1939, one Kundan Manjhi filed a petition before the Sub-divisional Officer of Giridih alleging that on the previous Friday, namely 27th January 1939, the Manager of the Court of Wards of the Ganwan Estate had demanded various commodities from the tenants who resided in the village of Chattarmar. Amongst these commodities were rice, dal, milk, ghee and oil, and two fowls and one goat were also demanded. It was alleged that these commodities, fowls and goat were taken to the manager. The petitioner alleged that other goats had been received by the manager and that he had been directed to take them to Ganwan, the headquarters of the estate.

2. The petitioner stated that he set out with two goats to Ganwan accompanied by a peon. On the way, it is said that he met some Congress people including a lawyer who induced him to file a complaint before the Second Officer who was at Satgawan. The Second Officer directed him to file a complaint before the Sub-divisional Officer at Giridih and this was done. The Sub-divisional Officer ordered a Magistrate to make an inquiry, and the learned Magistrate found that presents of small value had been given by certain persons such as are usually given to the landlord or his employees whenever they visited the village. The Sub-divisional Officer then called upon the manager and the peons to show cause why action u/s 63, Chota Nagpur Tenancy Act, should not be taken against them. Cause was shown, and it was urged on behalf of Capt. Angelo that he was a public servant and, therefore, no cognizance of the offence alleged to have been committed by him could be taken without the previous sanction of the Provincial Government.

3. The learned Sub-divisional Officer, after hearing argument on this point, came to the conclusion that Capt. Angelo was a public servant; but he further held that the acts could not be said to have been done by Capt. Angelo in discharge of his official duties. In the result he held that the sanction of the Provincial Government for the prosecution of Capt. Angelo was not necessary and directed the proceedings to continue. A petition was then filed on behalf of Capt. Angelo before the learned Deputy Commissioner who came to the conclusion that the sanction of the Provincial Government was necessary for the prosecution of Capt. Angelo, and. accordingly he referred the matter to this Court with the recommendation that the proceedings pending against Capt. Angelo should be quashed.

4. The allegation made by the petitioner against Capt. Angelo was that he had demanded from the tenants certain gifts which he was not entitled to demand and that he had committed an offence u/s 63, Chota Nagpur Tenancy Act, as amended by the Chota Nagpur Tenancy (Amendment) Act, 1938 (Act 2 of 1938). The amended Section 63, Chota Nagpur Tenancy Act, reads as follows:

(1). (a) If a landlord or his agent levies, except under any special enactment for the time being in force, from a tenant of such landlord, any sum of money or anything in excess of the rent lawfully payable by such tenant for his tenancy and the interest payable on an arrear of such rent, or enforces compliance by any tenant with any praedial condition to which he is not lawfully entitled, such landlord or agent, as the case may be, shall be punishable with simple imprisonment for a term, which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

(b) An offence under Clause (a) shall be bailable and shall be compoundable with the leave of the Court....(3) If in any suit, application or proceeding under this Act or any other law, the Court x presiding officer (not being the Deputy Commissioner) has grounds for believing that any landlords or his agent is guilty of an offence under Clause (a) of Sub-section (1), such Court or officer shall inform the Deputy Commissioner.

5. This Section makes it an offence for a landlord or his agent to levy, except under any special enactment for the time being in force, from a tenant of such landlord, any sum of money or anything in excess of the rent lawfully payable by such tenant for his tenancy. The allegation against Capt. Angelo is that he, as Manager of the Court of Wards which was in charge of the Ganwan Estate, had demanded from the tenants something over and above the rent which was lawfully payable by them. He had demanded certain commodities and animals which it was usual in the past for landlords and their agents to demand from, tenants when they were in their vicinity. There appears little doubt that demands for such commodities or birds or animals might well be an offence within this Section. However it must be remembered that an offence is only committed if the landlord or his agent levies or makes such demands. There is no offence if anybody other than the landlord or an agent of the landlord demands commodities of this kind from persons who are not his tenants.

6. The learned Deputy Commissioner was of opinion that Capt. Angelo was a public servant and therefore that no Court could take cognizance of this offence except with the previous sanction of the Provincial Government. It is common ground that the sanction of the Provincial Government was not obtained for instituting these proceedings against Capt. Angelo. Section 197, Criminal P.C., deals with the prosecution of public servants and is in these terms:

(1) When any person who is a Judge within the meaning of Section 19, I.P.C., or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a local Government or some higher authority, 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 local Government.

7. Before the learned Deputy Commissioner it was conceded that Capt. Angelo was a public servant; but before us it has been strenuously argued that he is not a public servant. Capt. Angelo is the Manager of the Court of Wards which has assumed superintendence of the Ganwan Estate. His monthly salary is Rs. 350, and there can be no doubt that Capt. Angelo must be deemed to be a public servant for the purposes of the Penal Code. Section 59-A, Court of Wards Act (Act 9 of 1879) expressly provides that every person employed by the Court of Wards under the Act shall, for the purposes of the Penal Code, be deemed to be a public servant. If the prosecution here was a prosecution for an offence under the Penal Code, it could not be argued that Capt. Angelo was not a public servant. However it is said that the prosecution here is for an offence created by the Chota Nagpur Tenancy Act and not by the Penal Code and therefore Section 59-A, Court of Wards Act, has no application. Section 4, Sub-section (2), Criminal P.C., provides that all words and expressions used in the Criminal Procedure Code, and defined in the Penal Code, but not defined in the Criminal Procedure Code, shall be deemed to have the meanings respectively attributed to them by the Penal Code.

8. The term "public servant" is not defined in the Criminal Procedure Code, and therefore must be deemed to have the same meaning as given in the definition of that term in the Penal Code. If, for the purposes of the Penal Code, Section 59-A, Court of Wards Act, makes a servant of the Court of Wards a public servant, it would appear to follow that he must also be a public servant within the meaning of the term as used in the Criminal Procedure Code. However, it is not necessary to decide this question because in my view it is clear on the facts of the present case that Capt. Angelo is a public servant. As I have stated, his monthly salary is Rs. 350. Section 70, Court of Wards Act, authorizes the Court of Wards to make rules consistent with the Act, and Rule 115 which was made u/s 70 deals with appointments to posts on duly sanctioned establishments, and this rule makes it clear that all appointments to posts carrying a monthly remuneration of over Rs. 200 including commission are to be made by the Court with the previous sanction of Government.

9. It has been said that Capt. Angelo was appointed before this rule came into force; but there is nothing to show that such was the case. Under this rule a manager whose salary is Rs. 350, could only be appointed by the Court with the previous sanction of Government. If he could only be appointed with the previous sanction of Government, it necessarily follows that he cannot be dismissed without the sanction or approval of Government. It would be an absurd position if sanction of the Government was necessary for an appointment by the Court which the latter could terminate at once without any reference to Government. An officer in the position of Capt. Angelo can only, in my view, be appointed with the previous sanction of the Government and can only be dismissed with the sanction or approval of the Government. A manager of a Court of Wards undoubtedly performs public duties.

10. He is responsible for the management and supervision of the estate, and one of the main purposes of taking over estate is to ensure that all Government dues are paid. He occupies a public position, and as he cannot be appointed or dismissed without the sanction of the Government he is, in my view, a public servant. As I have stated earlier, this has always been conceded by the petitioner in the Courts below. It is strenuously argued that Rule 115 is ultra vires as Section 20, Court of Wards Act, expressly gives the Court power to appoint and remove managers. The rule does not take away such power and only requires the previous sanction of Government. In my judgment Sections 69 and 70 of the Act empower the making of such a rule and it is not ultra vires.

11. If he is a public servant, can a prosecution under the amended Section 63, Chota Nagpur Tenancy Act, be instituted against him without the previous sanction of the Provincial Government It has been urged before us that no sanction of the Provincial Government is necessary by reason of the fact that the Criminal Procedure Code can have no application whatsoever to proceedings under the Chota Nagpur Tenancy Act. It is said that the Chota Nagpur Tenancy Act is a self-contained Act and that the procedure in all proceedings under that Act is governed by the Act itself.

12. Section 63(1)(a), Chota Nagpur Tenancy Act, creates an offence and that offence is described in Clause (b) of that Sub-section as a bailable offence which can be compounded with the leave of the Court. The Section is silent as to how the offence is to be tried. It has been contended that Sub-section (3) of Section 63, Chota Nagpur Tenancy Act, makes, it clear that the offence must be disposed of by the Deputy Commissioner. I have already set out this Sub-section which directs that if it is discovered that there are grounds that a landlord or his agent is guilty under Sub-section 1(a) to Section 63 of the Act, the Court hearing the suit, application or proceeding must inform the Deputy Commissioner. It is said that this Sub-section means that the Deputy Commissioner is the only person who can try these offences. If that be so, then it is difficult to understand how the learned Magistrate who heard this case, had jurisdiction to proceed in the matter. Sub-section (3) of Section 63 does not give the Deputy Commissioner exclusive jurisdiction; it merely enjoins all Courts who have reason to believe that an offence has been committed to report the-matter to the Deputy Commissioner. I am satisfied that there is nothing in Section 63, Chota Nagpur Tenancy Act, which deprives the ordinary Criminal Courts of jurisdiction to try all offences under that Section. Reliance in the Court below was placed upon Section 258, Chota Nagpur Tenancy Act, and it was suggested that that Section deprived the Criminal Courts of jurisdiction. All that Section 258, Chota Nagpur Tenancy Act, does is to bar suits in certain cases. In other words, it makes the decision of the Tribunal contemplated in the Act final in certain types of proceedings. The wording of Section 258 makes it clear that only proceedings of a civil nature were in the contemplation of the Legislature and such only are made final. The concluding words of the Section are,

and every such decision, order or decree shall have the force of a decree of a Civil Court in a suit between the parties and subject to the provisions of this Act relating to appeal shall be final.

13. This Section cannot deprive a Criminal Court of its jurisdiction to try a criminal offence. In my judgment Section 63(1)(a), Chota Nagpur Tenancy Act, creates an offence, and if it does, prima facie the Criminal Procedure Code will apply to the trial of such an offence. Section 5, Criminal P.C., is in these terms:

(1) All offences under the Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained; (2) all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

14. The offence u/s 63, Chota Nagpur Tenancy Act, is an offence not under the Penal Code but under a different Act. By reason of Section 5(2), Criminal P.C., it must be investigated into and tried according to the provisions of the Code because, as I have already pointed out, there is nothing in the statute creating the crime dealing with the method in which investigation is to be made and the trial to be held. It was contended that the provisions of the Criminal Procedure Code would not apply to this case by reason of Section 1(2), Criminal P.C. That Sub-section directs that, the Criminal Procedure Code shall extend to the whole of British India; but, in the absence of any specific provision to the contrary, nothing contained in the Code shall affect any special or local laws .then in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. It was argued that the Chota Nagpur Tenancy Act is a local law and therefore the Criminal Procedure Code would not apply. As I have already pointed, the Chota Nagpur Tenancy Act is silent as to how the case is to be investigated and prosecuted, and that being so, the provisions of the Criminal Procedure Code must apply.

15. Holding as I do that in the prosecution of an offence u/s 63, Chota Nagpur Tenancy Act, the provisions of the Criminal Procedure Code apply, then the provisions of Section 197, Criminal P.C., must be complied with. That Section expressly states that where a public servant who is not removable from his office save by or with the sanction of the Local 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 Local Government. I have already stated that Capt. Angelo is undoubtedly a public servant, and, in my view, is a servant who is not removable from his office save with the sanction of the Local Government. In my view, as his appointment could only be made with the sanction of the Provincial Government his dismissal also would require such sanction. He is therefore in my judgment a public servant within the meaning of Section 197, Criminal P.C.

16. The previous sanction of the Provincial Government is only required when the public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty and does not apply to all kinds of offences. It has been strenuously argued that the offence with which Capt. Angelo is charged is not an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty and therefore it is said, previous sanction of the Government is not necessary. I have already stated that the amended Section 63(1)(a), Chota Nagpur Tenancy Act, makes it an offence for the landlord or his agent to levy certain dues, and it is no offence if the person levying is neither a landlord nor a landlords agent. The charge in the present case against Capt. Angelo is that as Manager of the Court of Wards, he made these demands. If he made them as landlord or agent of the landlord, then he may have committed a crime. If he did not make them in his capacity as landlord or as agent of the landlord, then no crime is committed. The allegation in the present case is that whilst acting as agent of the landlord he made illegal demands, and in my view, it is abundantly clear that Capt. Angelo was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The meaning of the words,

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,

was considered at length by the learned Judges of the Federal Court in Hori Ram Singh v. Emperor AIR 1939 PC 43. In that case the learned Judges were dealing with Section 270(1), Government of India Act. Whilst dealing with the construction to be given to the words of that Section, the learned Judges also discussed the authorities u/s 197, Criminal P.C.

At p. 553, Sulaiman J. observed:

Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the Act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is, in the discharge: of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though, of course, the offence would really amount to a breach of duty. An act Cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another the impression that he is so acting.

At p. 560 Varadachariar J. observed:

In one group of cases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it.

17. He cited a number of Indian authorities in support of that proposition. He then mentions another group of cases where much stress had been laid upon the circumstance that the official character or status of the accused gave him the opportunity to commit the offence and then remarked that it seemed to him that the first group of Cases laid down the correct principle and those cases insisted that there must be something in the nature of the act complained of that attached it to the official character of the person. In the present case, it is alleged, Capt. Angelo committed the Act complained of in his official capacity, that is as agent of the landlord, and that being so, he committed an offence u/s 63, Chota Nagpur Tenancy Act. In my view the accusation in the present case is precisely the one contemplated in Section 197(1), Criminal P.C. That being so, previous sanction of the Government was necessary before the learned Magistrate could take cognizance of this offence.

18. For these reasons I am satisfied that the learned trying Magistrate had no jurisdiction to order these proceedings to continue and that the learned Deputy Commissioner was right in referring the matter to this Court with the recommendation that the proceedings be quashed. I would therefore accept this reference and quash the proceedings which have been instituted against Capt. Angelo without the previous sanction of the Provincial Government.

It will however be open to the Provincial Government after considering the facts of the case to give their sanction to proceedings and in such an event a fresh complaint can be made and proceedings can be carried on to conclusion.

Manohar Lall, J.

19. I agree. Capt. Angelo is the manager of an estate under the Court of Wards in Chota Nagpur. Therefore by the operation of Section 59-A, Court of Wards Act, 1879, he must be deemed to be a public servant within the meaning of the Penal Code. By Rule 115 framed by the Court of Wards u/s 70 of the Act as Capt. Angelo is drawing a salary of over Rs. 200 per month he cannot be removed by the Court of Wards without the sanction of the Provincial Government. These facts being established, it follows as a necessary consequence that the provisions of Section 197, Criminal P.C., come into operation: that is to say no Court can take cognizance of any offence said to have been committed by Capt. Angelo while acting or purporting to act in the discharge of his duties as a public servant without the sanction of the Provincial Government. The learned advocate for the respondent strenuously argued that the offence created by the amended Section 63(1)(a), Chota Nagpur Tenancy Act was a special offence outside the jurisdiction of the Criminal Courts and that it cannot be tried by the ordinary Criminal Courts. He placed reliance upon the insertion and retention of Section 63 within Section 258, Chota Nagpur Tenancy Act, even after the amendment in 1938. It may be that the Legislature has omitted to remove Section 63 from Section 258, after the amendment of Section 63 or it may be that the Section had to be retained in the category of Sections enumerated in Section 258, because some proceedings which may under the old Section 63 have started before the Act was amended, had not yet terminated. In any case, the concluding words of Section 258 make it clear that an order passed u/s 63, shall have the force and effect of a decree of a Civil Court in a suit between the parties. It cannot be understood how an order passed convicting or acquitting an accused under the amended Section 63 can have the force and effect of a decree of a Civil Court in a suit between the parties.

20. The obvious intention of Section 258, is, as was pointed out by my Lord the Chief Justice in the course of his elaborate judgment delivered just now, that the Act specifically bars the jurisdiction of any Civil Court to try a suit which would vary, set aside, alter directly or indirectly any order which may be passed u/s 63.

I am not at all impressed by the argument that although Capt. Angelo is a public servant within the meaning of the Penal Code he is not a public servant within the meaning of the Criminal Procedure Code. The Criminal Procedure Code does not create any offence; it is a procedural Act. It defines the procedure to be followed by the Courts before taking cognizance of an offence or after a Court has taken cognizance of an offence against an accused. The offence is created either by the Penal Code or by some other law for the time being in force.

21. In the present case the offence is created by the provisions of the amended Section 63(1)(a), Chota Nagpur Tenancy Act. In that Act I do not find any procedure provided for the investigation of that offence; nor does the Code define the Court which would try that offence or could give sanction to compound the offence as provided by Sub-section (3). It follows therefore as pointed out by my Lord the Chief Justice that the ordinary procedure provided in the Criminal Procedure Code will come into operation and will guide the Courts in taking cognizance of the offence and investigating it if they possess jurisdiction to take cognizance thereof. In the present case as no sanction was obtained from the Provincial Government the trial Court had no jurisdiction to take cognizance of the offence.

22. I should have dealt with the argument of the respondents that Rule 115 was ultra vires. The argument took the shape that the Court of Wards has authority u/s 70, to make only such rules as are consistent with the Court of Wards Act. Reliance was placed upon Section 20 of the Act to show that whereas by this Section the Court has the power to appoint a manager and also to remove the manager so appointed irrespective of the salary which he draws, Rule 115 expressly limits the power of the Court to the appointment of those managers only whose salary does not exceed Rs. 200 a months The argument is fallacious and omits to consider the effect of Section 69. Section 69 expressly authorizes that

in the exercise of the powers and in the discharge of the duties conferred and imposed respectively on the Court by this Act, the Court shall be guided by such orders and instructions as it may from time to time receive from the Provincial Government.

23. The Court of Wards itself has framed Rule 115, by which they have agreed to be guided by the orders of the Provincial Governments with respect to the appointment of a manager where his salary is above Rs. 200 per mensem. I do not see any in-consistency between Rule 115 and any other provision of the Act. Indeed, the provisions of the Act are being carried out with greater efficiency under the control and direction of the Provincial Government itself. It was also argued that the Provincial Government have only a power to sanction the appointment of the manager but have no power to remove the manager appointed with their consent or approval. The principle is well established that where an authority has a power to sanction the appointment, the persons so appointed cannot be removed without the sanction of that authority. For these reasons I agree that the proceedings should be quashed, leaving it open to the parties to obtain the sanction of the Provincial Government if they so desire.