R.N. Misra, J.
1. This application is directed against the order of the learned Sub-Divisional Judicial Magistrate of Bhubaneswar dated 21-7-1977 refusing to take cognisance of several offences said to have been committed by opposite parties 1 and 2 for want of appropriate sanction under Section 197 of the Cr. P.C.
2. Shorn of details, the relevant facts for appreciating the points raised in the revision application are these : Petitioner had raised brick kilns at Hanspal by the side of the river within Bhubaneswar area for about three years prior to 1975. The land on which the kilns stood belonged to him and he had obtained licence for a factory, paid panchayat tax as also rent. The Tahsildar issued a notice on the footing that the petitioner had encroached upon the Anabadi land of Government, Petitioner produced his records and as no further proceeding was taken against him, he continued in occupation of the property as before. On 23-4-1975 in the morning while petitioner was at his Jhanjirmangala residence within Cuttack town, he received a telephone message that the Tahsildar's people had come to Hanspal and were forcibly breaking down the kilns as also the residential accommodation by their side and they were assaulting the employees of the petitioner mercilessly. After getting this information, petitioner along with his two sons, nephew and the driver went to the area. He saw that several labourers were engaged in breaking the houses and the kilns. The furniture and account books had been thrown out, some of the employees of the petitioner were lying injured. When he objected, opposite party No. 2, Additional Tahsildar, came to assault him. He and his nephew, therefore, wanted to proceed to the Tahsildar and the Sub-Divisional Officer for appropriate relief. When they were about to leave by their motor car. some people shouted from behind and the car was blocked by placing a cart before it. At that point of time, the Tahsildar arrived at the spot along with an Armed Force. Petitioner and his nephew were assaulted by sticks and butts of the guns. On the basis of the aforesaid First Information Report, investigation followed and ultimately charge-sheet was sent to the court against several accused persons including opposite parties 1 and 2. The result of investigation was indicated in the charge-sheet thus:
Investigation disclosed that on 23-4-75 morning, Additional Tahsildar, Bhubaneswar along with his party was demolishing the brick kiln and its adjoining constructions standing on the land recorded in the name of complainant. This was protested by the complainant and his men as illegal act, as there was no prior notice. On their challenge regarding their authority for such demolition, there was hot exchange of words between the parties. Finding no solution the complainant and Ms nephew left the place in their car to lodge protest before S. D. O., Bhubaneswar for such illegal act but they were obstructed by the accused persons by putting a bullock cart in front of the car. At that time the Tahsildar reached at that place and dragged the complainant and others from the car. The Additional Tahsildar and his party who were chasing them joined with the Tahsildar and assaulted them brutally by means of lathi, jeep handle etc. as a result of which they sustained multiple injuries on their persons.
During investigation it also came to light that the Commissioner, Land Records and Settlement Board of Revenue, Orissa in case No. 2805/75 has decided that the area of land in which the brick kiln is and its surrounding constructions belong to the complainant who has title over the said land and is in peaceful possession.
* * * As there was prima facie case against the accused persons, C. S. was submitted by the I.O. Since sanction as contemplated under Section 197, Cr. P.C. was not accorded from competent authority for prosecution of the accused persons, the C. S. was withheld and the Government was moved to sanction. Government have been pleased to refuse the sanction which was communicated to S. P., Bhubaneswar,...
After the charge-sheet was received, the learned Sub-Divisional Judicial Magistrate heard parties and by the impugned order took cognisance of the offence against all other accused persons excepting opposite parties 1 and 2 and rejected the informant's application for issuing summons as against the said two public officers.
3. From the records, it clearly transpires that there was a proceeding against the present petitioner (informant) under the Orissa Prevention of Land Encroachment Act and an order for his eviction had been passed. The Additional Tahsildar (opposite party No. 2) had been directed to supervise the operation of demolition and eviction. Prima facie, the Additional Tahsildar was discharging that duty at the time the several offences are said to have been committed.
4. Section 197 of the Code provides:
(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.
(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.
Law is settled and the position Is not questioned before me that the propriety or legality of withholding sanction is ordinarily not a matter for adjudication of the court. At any rate. Mr. Patnaik for the petitioner does not attack withholding of sanction.
5. The only point which is pressed before me is that no sanction was necessary and the learned Magistrate erroneously refused to take cognisance of the offence and issue summons to opposite parties 1 and 2 by accepting that sanction was a condition precedent. Counsel relies upon a series of decisions of the Supreme Court being the cases of Shreekantiah Ramayya Munipalli v. State of Bombay : 1955CriLJ857 ; Matajog Dobey v. H.C. Bhari : 28ITR941(SC) ; Nagraj v. State of Mysore : 1964CriLJ161 ; Baijnath v. State of Madhya Pradesh : 1966CriLJ179 ; Prabhakar v. Shanker Anant Verlekar : 1969CriLJ1057 ; Bhagwan Prasad Srivastava v. N.P. Mishra : 1970CriLJ1401 and Pukhraj v. State of Rajasthan : 1973CriLJ1795 . He also places reliance on three decisions of this Court being the cases of Rajkishore Modi v. State of Orissa (1973) 39 Cut LT 82 5 : 1973 Cri LJ 1738 and K. C. Sahu v. Panamlal (1973) 39 Cut LT 511 as also State v. Baidyanath Patnaik ILR (1972) Cut 817.
The Constitution Bench of the Supreme Court in Dobey's case : 28ITR941(SC) examined the matter at length. Chandrasekhara Aiyar, J. spoke for the Court thus (at pp. 144-145 of Cri LJ):
Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. But the difference is only in language and not in substance.
The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation....
The observation of Sulaiman, J., in the case of Hori Ram Singh v. Emperor AIR 1939 FC 43 : 40 Cri LJ 468, was quoted with approval.
6. It is unnecessary to refer to the large series of decisions placed by the petitioner as in my opinion, the real rule is as quoted above. Opposite party No. 2, the Additional Tahsildar, had been directed to supervise the demolition. He was, therefore, at the spot in discharge of his duty. I can quite appreciate the stand of Mr. Patnaik for the petitioner that it was no part of the official duty of the Additional Tahsildar to participate in assault, but if the allegation be true, it would be one in excess of the needs and requirements of the situation. There, however, seems to be an interrelation between the discharge of the official duty and the alleged conduct. In the circumstances, I would think that the protection under Section 197 of the Cr. P.C. exists so far as opposite party No. 2 is concerned. The order of the learned Magistrate in regard to him is unexceptionable.
7. The Tahsildar (opposite party No. 1) had made the order of eviction and demolition. He was no part of the implementing machinery. At any rate, having deputed the Additional Tahsildar to supervise the demolition and eviction, he had no justification to be present at the spot with an Armed Force. The allegations of the petitioner against opposite party No. 1 tested by the ratio of Dobey's decision shows prima facie no inter-relationship. The allegation of the petitioner is that he was leaving the spot along with his nephew by car with a view to seeking redress before the higher authorities as the Additional Tahsildar and his men did not listen to his solicitations. It is at that time that he was obstructed by a bullock cart from proceeding further and there appeared on the scene the Tahsildar with his armed men who immediately started to assault. The allegations may be untrue, but as they stand, they disclose a case where the opposite party No. 1 would not have the protection under Section 197 of the Code. I am, therefore, led to the conclusion that the learned Magistrate went wrong in holding that want of sanction under Section 197 of the Code stood as a bar against cognisance being taken so far as opposite party No. 1 was concerned.
8. The revision application is allowed in part. The order of the learned Magistrate is vacated so far as opposite party! No. 1 is concerned and the court below is directed to take cognisance of the several offences, inasmuch as his order shows that he was prepared to take cognisance of the offences but for the bar under Section 197 of the Cr. P.C. The revision application is dismissed so far as opposite party No. 2 is concerned and the impugned order is sustained.
9. The records be returned quickly with a direction to the learned Magistrate to dispose of the matter without delay, inasmuch as some other trial is being held up for the case.