A public servant is entitled to protection under Section 197 CrPC if the alleged act was done in the color of the official capacity while discharging official duties and there is a nexus between the alleged act done and performance of discharge of his official duty.

This criminal revision is preferred by the petitioner/accused Shri Nangkar Taming under section 482 of the Cr.P.C. read with Article 227 of the Constitution of India against the impugned order dated 30.11.91 passed by the learned Judicial Magistrate First Class, Jonai in OR Case No. 130 of 1984 by virtue of which the learned Court below has justified the cognizance of offence so taken and non bailable warrant so issued against the present petitioner holding that the protection under section 197 Cr.P.C., in the present case need not be extended to him and hence cognizance so taken on 8.4.91 was held to be justified without sanction of the Government as the act alleged to have been done by the petitioner a police officer at the relevant time as Sub Inspector of Police resorting two rounds of firing by the service revolver on 8.6.84 as a result of which as per the prosecution case put by the informant in Jonai PS Case No. 129 of 1984 registered under section 302/325 of the IPC one Dutti Ram Gogoi lost his life, cannot be said to be acting or purporting to act in discharge of his official colour or duty.

2. The tacts of the case put in narrow compass run as under: For the occurrence taking place on 8.6.84 the matter was reported by filing the first information report and on 8.6.84 itself by the present petitioner on the basis of which Jonai PS Case No. 119/84 got registered, a copy of which is filed and marked as Annexure II in this criminal revision petition and another report lodged by one Sri Khagen Lafaon as infonnant on 16.6.84 i.e. after a lapse of 7 days registered as Jonai PS Case No. 127/84 copy of which so filed is marked as Annexure III. The details of the contents of both the FIR need not be repeated, however in Jonai PS Case No. 119/84 final report was submitted on 28.2.89, the copy of which is marked as Annexure TV and in this case (Jonai PS Case No. 127/84) cognizance of offence was taken by the learned Court below as detailed above against the petitioner. Police personnel on 8.4.91 without extending protection under section 197 of the Cr.P.C. and by the impugned order dated 30.11.91 the copy which is filed marked as Annexure VI, on the petition so filed by the petitioner that the sanction was. necessary the same was rejected on 30.11.91. Hence this criminal revision petition.

3. The only point for consideration is as to whether in the instant case, in the background of the facts and circumstances, sanction was necessary to be obtained as provided under section 197 (1) of the Cr.P.C. prior to taking cognizance and whether the petitioner-accused is entitled for such protection as a public servant?

4. Mr. JM Choudhury, the learned counsel for the petitioner is heard at length who has strenuously argued that taking cognizance of the offence in this case prior to obtaining proper sanction order from the Government is bad in law. By refering to the impugned order dated 30.11.91, it is submitted that the learned Court below has held the alleged act was committed by the petitioner though in performance of the official duties but in excess of his powers and hence sanction was not necessary. It is argued with great emphasis that even if, suppose, the act is in excess of the official duties, the person alleged to have committed the said act can claim protection under section 197 Cr.P.C.. Proof of the act and the question of its exceeding what was strictly required in discharge of the duty, fall for consideration at the later stage. Hence before taking cognizance of the offence, scrutiny by the Government and its sanction of prosecution was necessary which has not been done in the instant case.

5. Mr. Choudhury, the learned counsel also claimed himself to be fortified by some of the reported cases :

The first case referred is (1983) 1 GLR NOC 31, Shri KPS Gill & others vs. Dimbeswar Sharma. It is pointed out by refering to Annexure 2 that firing was resorted to in a particular circumstance and since the act was inter related one ca

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