S.S.DEWAN, J. - (1.) IN this petition under section 482 of the Code of Criminal Procedure, 1973 (for short, the Code), Gurcharan Singh has sought quashing of the Criminal proceedings initiated by the respondent No. 1, through a complaint dated 19 -5 -1982 and in which the petitioner has been summoned by the trial Magistrate by his order dated August 2, 1982.
(2.) WITHOUT going into the details Is or the complaint, in substance the allegations therein amount to this that on receipt of a direction receipt the Sub -Divisional Officer (Civil), the petitioner being an Executive Officer (Civil) of the Municipal Committee, Garhshankar, directed removed of the encroachments from the bus -stand, Garhshankar. It is said that when the municipal staff went to clear the encroachments. certain per concluding the respondent No. 1, misbehaved with the staff and assaulted them. Consequently the petitioner made a report to the Sub -Divisional Officer (Civil) regarding the said incident and also regarding the misbehaviour by Sanjogta Rani Nath the petitioner in the office of the Municipal Committee. On the allegation made by the petitioner, Criminal case FIR No. 162/81 under sections 353 379 and 506, Indian Penal Code, registered in Police Station Garhshankar against Sanjota Rani respondent and her husband. The Sub -Divisional Judicial Magistrate, Garhshankar, discharged Sanjogta Rani but charged her husband Vijay for the said offences. Smt. Sanjogta Rani then filed a complaint qua first petitioner under section 500, Indian Penal Code.
(3.) IN this petition, the short question that falls for determination as to whether the Magistrate could take cognizance of the offence under section 506, Indian Penal Code, Without the prior sanction of the competent authority (in this case of the Government) on a complaint filed before him by the respondent Smt. Sanjogta Rani. The relevant portion of Section 197 of the Code is in the following terms : "197 (1) when any person who is or was a Judge or a public servant nor removable from his office Save by or with the sanction of Government is accused of any offence alleged to the committed by him while acting or purporting to not in discharge of his official duty, no court shall take conjugal offence except with the previous sanction : - (a) (b) in the case of person who is employed or, as the case may was be at the time of commission mission of the alleged offence of in connection with the affairs of a State of the State Government." It is not disputed that if the offence is alleged to have been committed while acting or purporting to act in the discharge of office duties, the provisions of Section 197 the Code, would be attracted and a prior sanction for the prosecution Would be required. So the point that for consideration is as to whether any offence for which the ratio is sought to be prosecuted could be held to have been committed by him while acting or purporting to act in the discharge of his official duties The petitioner is admittedly an Executive Officer of the Committee. It is one of the functions of the Executive Officer to remove illegal encroachments made by the public. In the present case on the action given by the Sub -Divisional Officer (Civil), the Executive Officer alongwith his staff went to the bus -stand Garhshankar and tried to remove the encroachment made by Smt. Sanjogta Rani and her husband The action of the petitioner was clearly performed in the exercise of his official duty and, therefore, sanction under section 197 of the Code, for prosecution for the offence under Section 500, Indian Penal Code, is clear ? called for. Accordingly the petition is allowed and the order of the trial Magistrate dated August 2, 1982, summoning the petitioner as an accused is set aside and the proceedings before him are quashed. It would however, be open to Smt. Sanjota Rani to apply and obtain sanction for the prosecution of the petitioner from the competent authority in accordance with law, if so advised.;