A public servant can only be prosecuted for an offense alleged to have been committed while acting or purporting to act in the discharge of his official duties with the previous sanction of the appropriate government.

1. - This Misc. Petition has been filed by Avtar Singh, the then Dy. S.P. against the order dated 7.2.1991 passed by the Munsif and Judicial Magistrate, Deedwana, taking cognizance against him under Sections 148, 324, 326 and 149, IPC.

2. The short facts of the case are these. Rukmani w/o one Devilal died of burn injuries on 16.3.1983 at Deedwana. The Magistrate enquiry was held under Section 174, Cr.P.C. The police was of the view that the deceased had burnt herself by pouring kerosene oil upon her body. The conclusion arrived at by the police did not find favour with the villagers. On 17.8.1983 Ganpat Vaishnav and some other persons made an application before the Collector, Nagaur alleging that Devilal, husband of Rukmani had illicit relations with one Anuradha and enquiry be held after registering a case under Section 302, IPC. A case under Section 302, IPC was, therefore, registered against Devilal. When the investigation was going on, the villagers went to the office of the Sub-Divisional Magistrate, Deedwana, to register their protest but as he was not available, they went to the Police Station, Deedwana. The petitioner and other police personnel were there. The complainant's case is that the petitioner called Ganpat inside the police station and fired a shot at him. The crowd protested against the action of the petitioner which further enraged him and he directed the police personnel to open fire at the crowed resulting into firing. Various persons received injuries in the occurrence including Ganpat, Manakchand, Ramgopal, Rajendra, etc. A private complaint was filed by complainant Gopal Vaishnav against the petitioner and others, on which an enquiry was held by the Judicial Magistrate, Deedwana under Chapter XV, Cr. P.C. After examining the witnesses, the learned Judicial Magistrate took cognizance under Sections 148, 324, 326 read with Section 149, IPC against the petitioner and six others vide order dated 7.2.1991. That order is under challenge.

3. Mr. Kharlia, learned Counsel for the petitioner, pointing out that Avtar Singh, petitioner who was Dy. S.P. at the relevant time, and was engaged with the investigation of the case, was at the police station when crowd of thousands of people had collected and pelted stones on the police personnel, contended that in order to disperse the crowd and to defend the police personnel, the petitioner had to order the firing whereby some persons received injuries. The contention was that the act of the accused on duty in the discharge of his official duty, and he being a public servant not removable by the authority other than the State Government, could not be prosecuted without sanction of the State Government under Section 197, Cr.P.C.

4. Mr. Kachhwaha, learned Public Prosecutor and Mr. Soni, learned Counsel for the respondent, on the other hand, contended that it could not be the official duty of the petitioner to cause injuries or to order to open fire at the crowd and, therefore, the protection of Section 197, Cr.P.C. was not available to the petitioner.

5. The question to be considered is whether protection under Section 197, Cr.P.C. is available to the petitioner in respect of his act of opening fire or ordering his subordinates to do so at the police station. The learned Magistrate has held that the firing could not be the act in the discharge of the official duty of the petitioner and it was abuse of the office which he held.

6. Sub-section (1) of Section 197, Cr.P.C. reads as follows :"197. Prosecution of Judges and public servants -

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -

(a) in the case of a person who is employed or, as the case may be, wa