Sanction for prosecution of a public servant under Section 197 of the CrPC is required only if the act complained of has a direct nexus or relation with the discharge of official duties.

1. Whether in all circumstances, for prosecution of a public servant, sanction under Section 197 of the Code of Criminal Procedure is required to be obtained is a moot question to be answered in this case.

2. On the basis of a complaint that the petitioner in course of an anti-encroachment drive entered in the chamber of the Complainant and abused him in presence of his patients and ultimately dragged him out from his chamber, the Magistrate, after examining the Complainant and his witnesses, took cognizance of the offence against the petitioner under Sections 147, 323, 427, 452 and 504 of the Indian Penal Code.

3. By this application, the petitioner has prayed for quashing of the said order of taking cognizance dated 22.5.1998. Mr. Tara Kant Jha, learned Senior Counsel for the petitioner, relying on the decisions in the case of Director of Inspection and Audit and others V/s. C.L. Subramaniam, 1994 Supp (3) SCC 615; Naresh Mishra V/s. The State of Bihar and another, 1997 (1) PLJR 1012 : 1997 (2) East Cr C 460, has contended that the petitioner being the Sub-divisional Magistrate had gone for implementing the High Court order for removing encroachment and before starting anti-encroachment drive, a general notice to the public to remove the encroachment was issued and pursuant thereto some encroachments were removed in the National Highway with the Police help and if in such circumstance even if some excesses were committed, the petitioner, being a public servant, sanction was required.

4. Mr. Jha contends that as a matter of fact, the Opposite Party No. 2, who is a doctor and his wife Dr. Bimla Roy had threatened to shoot at Junior Engineer, PWD, and used abusive language. The doctor even assaulted the labourers for which a criminal case was instituted against him. Referring to various allegations made in the First Information Report against the doctor, Mr. Jha contends that this complaint-petition is nothing but an outburst of the said criminal case and admittedly there is no personal vendetta of the petitioner against the doctor. According to him, if during the anti-encroachment drive, the petitioner having found resistance acted in excess of his jurisdiction by entering the chamber of the complainant and abused him, the said act of the petitioner must be deemed to be an act or purporting to be act in discharge of his official duty.

5. Learned Counsel for the Opposite Party, on the other hand, has contended that there is no dispute so far as the legal position is concerned but in the facts and circumstances of the present case, it has to be seen whether it was necessary for the petitioner to enter the chamber of the complainant and abuse him before his patients. Moreover, learned Counsel submits, there was no necessity for the petitioner to drag the complainant out who was admittedly a handicapped person having one leg.

6. In the case of R. Balakrishna Pillai V/s. State of Kerala and another, (1996) 1 SCC 478 : 1996 (1) East Cr C 301 (SC), their Lordships have settled the controversy on this legal aspect. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. The observations made in the case of B. Saha V/s. M.S. Kochar, (1979) 4 SCC 177, have been noticed by their Lordships where it has been pointed out that the words "any offence alleged to have committed by him while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the Code, are capable of both a narrow and a wide interpretation. But, it was pointed out that if they were construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be. "At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in