Section 197(1) of the Cr.P.C. applies only if two requirements are met: (1) the accused must be a public servant not removable from service save by or with the sanction of the government, and (2) the alleged offence must have been committed while acting or purporting to act in the discharge of official duties.

1. - By this criminal misc. petition, a challenge is made to the order dated 28th August, 2000 passed by the Judicial Magistrate (First Class), Weir, district Bharatpur so as the order date 08th February, 2007 passed by the Additional Sessions Judge, No.2, Bayana, district Bharatpur. By the impugned orders, cognizance of offence was taken under Sections 147, 447 & 427 IPC.

2. The challenge to the impugned orders is made in reference to Section 197 of Cr.P.C.

3. It is submitted that sanction for prosecution was not taken before passing an order for cognizance of offence, though the petitioner's act was in discharge of duties. He is entitled to the protection of Section 197 of Cr.P.C. A reference of judgment of this case in the case of Mahendra Singh Rao v. State of Rajasthan & Anr. reported in 2007(2) Cr.L.R. (Raj.) 1664 has been given. Therein also, the order of cognizance of offence was passed without sanction for prosecution. This Court held that Tehsildar cannot be allowed to prosecute in absence of sanction for prosecution. The petition to challenge the order of protection of Section 197 of Cr.P.C. was dismissed by the Court.

4. A reference of judgment of Hon'ble Apex Court in the case of N.K.Ogle v. Sanwaldas Alias Sanwalmal Ahuja reported in (1999) 3 SCC 284 has also been given wherein also, a Tehsildar was involved and in absence of sanction for prosecution, as required under Section 197 of Cr.P.C., the prosecution was not allowed.

5. Learned Public Prosecutor as well as learned counsel for the non-petitioner No.2 have opposed the petition.

6. I have considered the submissions made by learned counsel for the parties and perused the impugned orders.

7. The only argument raised by learned counsel for the petitioner to challenge the impugned order of cognizance of offence and the order passed on revision petition is in reference to Section 197 of Cr.P.C. For ready reference, the aforesaid provision is quoted thus :

"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, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the For