D.B. Lal, J.
1. This petition in revision has been brought from the order of the Chief Judicial Magistrate, Kulu, dated 13-6-1973 summoning the two accused Shri C. D. Katoch, I. F. S. Assistant Conservator of Forests, Kulu and Shri Dina Nath, Deputy Forest Ranger, Kulu to stand a trial under Section 379 of the Indian Penal Code. A complaint was filed by Shri Sant Pal and the allegations were that these two accused removed his sleepers on 2-6-1973 which were stacked opposite Naggar Castle. It was stated that Sant Pal had obtained a few forest trees and had converted them into Sleepers which lying stacked and despite resistance by his son Ashwani Pal the two accused removed these sleepers. In the complaint two offences were pointed out under Sections 380 and 500 of the Indian Penal Code.
2. The learned Magistrate took cognizance of the case and recorded the statements of the complainant and his son Ashwani Pal as well us of few other witnesses. Ashwani Pal, however, stated that the sleepers were removed in a truck of the Forest Department and that Shri Dina Nath Deputy Ranger stated that he had received orders from Shri C. D. Katoch, I. F. S. Assistant Conservator of Forests. The evidence on the record further indicated that some complaints were instituted against Sant Pal for illicit felling of timber. Orders were received from the Divisional Forest Officer that the timber stored by Shri Sant Pal be seized as it was illicit. Ac cordingly on 2-6-1973 in compliance of those orders Shri Dina Nath Deptity Ranger went and recovered these sleepers which were removed in a Forest Truck and were stored in the forest godown. Proper entries were made in the register kept at the Department office. According to Sant Pal this was all done illegally, with the intention of committing theft,
3. The learned Magistrate, however, summoned the two accused under Section 379 of the Indian Penal Code. An application was moved before him that the two accused were public servants and if at all, they committed the offence while acting or purporting to act in the discharge or their official duties. As such sanction under Section 197 of the Code of Criminal Procedure was required. The learned Magistrate, however, did not decide this application and proceeded with the trial. The two accused have now come up in revision before the High Court.
4. Under Section 197, if a complaint is made that the alleged offence is committed by public servants acting or purporting to act in the discharge of their official duties, no Court can take cognizance of such offence except with the previous sanction of the Central Government or of the State Government as the case may be. In the present case it is evident the timber was removed under the sanction of higher authorities. Shri Dina Nath removed it in a forest truck. A proper account was kept for the timber. It was also stored in a departmental building. In fact the two officers as well as the higher authorities were under the impression, right or wrong, that the timber was illegally obtained by Sant Pal. The offence with which Sant Pal could be indicted, according to these officials, was one for disregarding the provisions of the Indian Forest Act. Therefore, the whole complexion of the case cannot but be considered to be one under Section 197. The two accus- ed were decidedly acting or purporting to act in the discharge of their officials duties. They may or may not have committed the offence of theft. At any rate the transaction took place while they were acting or purporting to act in the discharge of their official duties. They had simply challaned a case under the Indian Forest Act and Rules framed thereunder. It is a different question that they challaned a wrong case or that Sant Pal did not commit any offence. The timber might even belong to him. Nonetheless the two accused cannot but be stated to have acted in the discharge of their official duties. In such a situation Section 197 was decidedly attracted.
5. The very cogniaznce by the learned Magistrate was illegal. The case could not proceed unless a proper sanction was obtained. As such the petition is allowed and the cognizance taken up by the learned Magistrate is set aside. Similarly his order summoning the accused is also set aside. In case Sant Pal is so disposed he can obtain proper sanction of the State Government for prosecution of the two accused. Only thereafter a complaint can be instituted.