The act of a public servant can be brought within the scope of the discharge of the duties or the purported discharge of the duties of the public servant, even if the act is in excess of the duty or in the absence of such duty, if the public servant could lay a reasonable claim that he did it in the course of the performance of his duty.

This revision is directed against the order of the learned judicial Second Class Magistrate, Uthamapalayam dismissing an application under Section 258 of the Code of Criminal Procedure filed by the revision petitioner. The revision petitioner contended that he is the President of V. Ammapatti Village Panchayat, that the act complained of against him, namely the removal of encroachment was done in the discharge of his official duty as President, that sanction is required under Section 169 of Act XXXV of 1958 and as no sanction was obtained the proceedings have to be stopped under Section 258 of the Criminal P.C. The learned Magistrate found that the first accused-President has sought the the eviction of the complaint through the officers of the Revenue Department and that notice had been served on Meenambal, mother of Selvaraj, the complainant, and that though a week's time was granted, the first accused-President has removed the encroachment before the expiry of that period and therefore the President has not acted or purported to act in his official capacity and consequently no sanction is necessary. In the end, as already pointed out, he dismissed the application. The first accused-President is aggrieved and has field this revision.

2. Section of 169 of the Madras Act XXXV of 1958 prohibits any court from taking cognizance of any offence alleged to have been committed by the President while acting or purporting to act in the discharge of his official duty except with the previous sanction of the Government. The Act itself prohibits a court taking cognizance of any offence except with the previous sanction of the Government. It is clear that such sanction would be necessary only when the act complained was done in the discharge or purported discharge of the duty of the President. In this case the petitioner invokes the aid of not only Section 169 of the Panchayats Act, but Section 169 of the Cr.P.C. Before a protection under Section 197 Cr.P.C. is claimed by any accused, he shall have to satisfy three conditions, (1) that he is a public servant, (2) that he is not removable from his office save by or with the sanction of the State Government, and (3) that he accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. No arguments were advanced either by the learned counsel for the petitioner or by the learned Public Prosecutor in respect of the first two conditions in view of S. 169 of the Panchayat Act. The only question therefore that requires considerations in this case is whether the accused has committed the offence while acting or purporting to act in the discharged of his official duty. The answer to this question would depend on the true interpretation of the words "acting or purporting to act in the discharge of his official duty" occurring in S. 197 Cr.P.C. Both the learned counsel for the revision petitioner and the learned Public Prosecutor have cited certain authorities on this point. The tests formulated by the various decisions cited do not appear to be uniform and consequently the question as to whether the act of any public servant comes within the purview of his official duty or lies outsides the scope of his official duty, does not admit of easy solution.

3. Before I proceed to discuss the law on the subject, I must point out that act complained of is that the President-first accused and others demolished the house of the complainant and also assaulted the complainant and his mother Meenambal. The defence was that the President has been authorised by a resolution of the panchayat to remove the encroachment and he acted in pursuance of that resolution in the discharge of his duties. The fact that the President was so authorised is not disputed. What the learned Public Prosecutor contends is that the president has no power to remove the encroachment in 'natham porambokes' and all that he must do is to complain of such encroachments