A Magistrate should generally resort to an inquiry/investigation under Section 202 Cr.P.C. before proceeding further in a complaint against a public servant alleging an act committed in the discharge of official duty.

1. - The instant miscellaneous petition has been filed by the petitioner complainant against the order dated 8.5.2006 passed by the learned Judicial Magistrate No. 1, Bhilwara in complaint case no. 23/2004 whereby the learned Magistrate rejected the complaint filed by the petitioner by holding that the accused were protected by Section 197 Cr.P.C. and the order dated 10.12.2008 passed by the learned Addl. Sessions Judge (F.T) No. 1, Bhilwara whereby the petitioner's revision against such rejection has been dismissed.

2. Learned counsel for the petitioner contends that the petitioner filed a complaint with a specific allegation that his property is located in the village Gram Panchayat Aatun and the respondents who are all employees of the Municipal Council, Bhilwara illegally came to his property and damaged the boundary wall after trespassing into the property causing a loss worth more than Rs. 40,000/- to the petitioner. Learned counsel submits that the petitioner filed the complaint mentioning by way of abundant caution that if sanction of State Government is required the same may be obtained while as a matter of fact no sanction was required for prosecuting the respondents as the act done by them was not committed in the discharge of official duties. Learned counsel submits that admittedly the property of the petitioner was located in the Gram Panchayat Aatun and the demolition thereof was carried out by the employees of the Municipal Council, Bhilwara. Thus, he submits that the act complained of could not be said to be an act done in the discharge of official duties of the accused, and therefore, the orders passed by the learned courts below deserve to be quashed and the learned Magistrate should be directed to proceed against the respondents.

3. Per contra learned counsel for the respondents submits that the complainant himself mentioned in his complaint that if the sanction is required, the sanction for prosecution of the accused may be procured. He submits that from the documents of the complainant itself, it is apparent that the property was located in the territory of Municipal Council, Bhilwara and thus the respondents rightly exercised jurisdiction in the case for demolishing the encroachment. He thus prays that the learned Magistrate has committed no error in rejecting the petitioner's complaint.

4. Heard and considered the arguments advanced at the bar. Perused the record.

5. The complainant in his complaint has specifically come out with a case that his property was demolished without following due process of law. The complainant has specifically averred that the property is located in Gram Panchayat, Aatun and the accused who were allegedly acting as being authorised in this behalf on behalf of the Municipality, Bhilwara had no right to enter into the property and demolished the same. The learned Magistrate has dismissed the complaint holding that the protection of sanction was available to the respondents.

6. However, in the opinion of this Court such a conclusion was not based on any material available on the record of the complaint. For the purpose of protection of sanction to be extended to a public servant under Section 197 Cr.P.C. or a like provision, there has to be material on record to show that the public servant complained of, performed the offending act while discharging his official duty. Whether or not the demolition of the petitioner's property was carried in the discharge of official duty assigned to the respondents has to be proved by bringing material on record. At the stage when the summoning of the accused was being considered there was no material with the Magistrate so as to have reached to such a conclusion. Therefore, it would have been proper for the learned Magistrate to have directed enquiry by police under Section 202 Cr.P.C. before proceeding to the stage under section 203/204 Cr.P.C. An enquiry under Section 202 Cr.P.C. could have made the things crystal clear as the police wou