JUDGMENT

D.P. Mohapatra, J.-Leave granted.

2. The short question that arises for determination in this case is whether on the allegations made in the complaint and the materials available on record, Section 197 of the Code of Criminal Procedure is applicable to the case? The High Court of Patna having answered the question in the negative the accused has filed this appeal challenging the order.

3. The factual matrix giving rise to the proceeding may be stated thus:

The appellant Gauri Shankar Prasad was the Sub-Divisional Officer at Naugachia on 12.8.1996. In pursuance of an order of the Patna High Court in a public interest litigation that encroachments from road and roadside lands and unauthorised structures should be removed, the national highway division of the Public Works Department under the supervision of the appellant carried out operations for removal of encroachments according to the programme decided in a meeting of the officers of the departments concerned. In course of the drive undertaken for removal of encroachments on roadside lands the respondent was asked to remove a portion of the boundary wall which according to the measurements made by the officials of the PWD had encroached upon roadside land. When the appellant and the other officials tried to remove the encroachments on 12.8.1996, the respondent objected/protested against such action and filed a complaint in the Court of the Addl. Chief Judicial Magistrate, Maugachia which was registered as complaint No. 129 of 1996.

4. The averments made in the complaint which are material for the present purpose are as follows:

"That the residential-cum-clinic of the complainant and his wife is situated over cadestral Plot Nos. 2074 and 2072 constructed in or about the year 1973 to 1975 surrounding with boundary walls and the public road possesses through just in the side of the boundary wall of aforesaid residence of the complaint.

That it is also fit to be submitted that previously the accused maliciously took steps for cancellation of Arms Dealer s License in the name of the son of the complainant but the accused could not succeed in his nefarious game.

That recently the accused became active against the complainant in the garb and pretence of removal of public land encroachment movement and on false measurement knowingly and intentionally got a red mark fixed on the boundary wall of the complainant in the name of alleged encroachment of the road.

That the complainant in a bona fide way sent a notice u/s 80 C.P.C. to the Collector Bhagalpur complaining against the so called alleged encroachment.

That on the completion of the period in the notice the complainant filed a suit in the court of Munsif Naugachia, bearing suit No. 68/96 for issue of permanent injunction against the State of Bihar through collector and S.D.M. Naugachia and there is also petition for issue of ad-interim injunction which is to put up for hearing.

That on the date and time of above mentioned occurrence and accused Gauri Shankar Prasad along with large number of labourers and constables came to the premises of the complainant and started the works of demolition whereupon the family members of the complainant requested the accused first to see the complainant who was at that time treating the patients in his clinic along with his wife Dr. Bimla Roy.

That thereupon the accused Sri Gouri Shankar Prasad along with 10-11 constables rused into the clinic and started abusing the filthy language thereupon the complainant protested and the accuse took away the licence gun of the complainant which was therein a room in the side of clinic and accused Gouri Shankar Prasad further ordered to drag out the complainant from the clinic and the constable obeyed the order and the constables dragged the complainant out who is a man of one leg and automatically he fell down.

That subsequently the complainant has been informed that the pucca gate boundary walls Isolation ward, Gairaz and cow-shed, all have been demolished ille