A public servant is entitled to protection under Section 197 of the Code of Criminal Procedure if the alleged offence was committed in the discharge of his official duties.

S. C. Mookherji, J.

1. In this application the point involved being a short one, only the relevant facts need to be stated.

2. The petitioner if a public servant and during the relevant period he was posted at Patna as Deputy Superintendent of Police (town ). It appears that there was some controversy between opposite-party No.2 and one Rameshwar singh in respect of their claim of possession over a residential Flat bearing No.191 M. I. G. in Hanuman Nagar Colony of Kankarbagh.

3. Two cases were instituted, one by opposite-party No.2 against the petitioner and and other, by the said Rameshwar Singh against opposite-party No.2 and others. The present controversy relates to the case instituted by opposite-party No.2 against the petitioner and others alleging therein that they had committed offences under Sections 457, 448, 461 and 120b of the Indian penal Code as detailed in the complaint petition The complaint was dismissed whereafter, opposite-parly No.2 preferred a revision before this Court. Upon an order of further enquiry, the learned Magistrate took cognizance of the offence. Against that order, the petitioner moved this Court for quashing that order on the ground that he being a public servant and the offences complained of having been committed in discharge of his official duties, no prosecution can be made without obtaining sanction from the competent authority as provided under Section 197 of the Code of Criminal Procedure. Relying on a decision of the supreme Court reported in A. I. R.1979 S. C.1841 equal to 1979 Cr. L. J. page 1267, this Court observed that the petitioner could raise this point at any stage and in that event the learned Magistrate should dispose of the objection in accordance with law. Thereafter, it appears that the petitioner appeared before the Magistrate and raised the issue which was rejected against which the present revision has been filed.

4. Mr. Jagdish Singh, the learned Advocate for the petitioner has raised only one point that the trial court while passing the order had not taken into consideration other relevant facts and circumstances although it were brought to his notice and hence, the order on this ground alone is bad in law. The learned advocate has also tried to justify the action of the petitioner in the alleged offence as being a part of his official function and according to him, in view of the decision of the Supreme Court, reported in A. I. R.1956 S. C.44, the Court could not have taken cognizance of the offence against him without obtaining prior sanction of the State Government. In support of his contention, the learned counsel has submitted that the petitioner being a public servant and in-charge of law and order, had to rush to the spot on receipt of a telephonic message along with some other police officials to control the situation as there was serious apprehension of the breach of peace between the parties for possession of a flat and therefore, in any event, the said action of the petitioner can be taken to be his official duties. So far as the allegation against the petitioner that he had forcibly dispossessed opposite-party No.2, as stated in the petition of complaint, the learned Counsel has submitted that if the cases of opposite-party No.2 and the said Rameshwar, who claims to be a tenant in the house and other connected matters are taken into consideration, it will appear that there was no case of dispossession. In other words, according to the learned Counsel, the allegation of the opposite-party No.2 that the petitioner was instrumental in dispossessing the opposite-party No.2 from his house is absolutely incorrect. He has also submitted that it would be evident that the learned Magistrate solely on the basis of the allegation made in the petition of the complaint, passed the order.

5. On the other hand, the opposite-party No.2 who has argued in person has submitted that at this stage the learned Magistrate was only required to say as to whether the all