JUDGMENT : S. Acharya, J. - This revision is against the order of the Sessions Judge, Puri summarily rejecting the revision petition filed by the Petitioner against the order of the S.D.M. Bhubaneswar dismissing the Petitioner's complaint petition on the findings that the statement allegedly made by the opposite party, which formed the subject matter of the complainant against him, is not defamatory in nature; and that the opposite party, the Advocate Genera) of the State, is a public servant, and he made the alleged statement while acting in due discharge of his official duty, and so no cognizance can be taken of the offence alleged against the opposite party as the required sanction of the State Government to prosecute him has not been taken. 2. It is conceded by Mr. Sahu, the learned Counsel for the Petitioner, that the opposite party, the Advocate General of be State, is a public servant of the particular category coming within the provisions of Section 197, Code of Criminal Procedure. 3. There Lordships of the Supreme Court in their latest reported decision in Bhagauan Prasad Srivatsava v. N.P. Mishra 1970 S.C.D. 581 : (1970) 1 S.C.W.R. 809 observed that the question whether a particular Act is done by It public servant in the discharge of his official duty is substantive anyone of fact to the determined in the facts and circumstances of each case. In Nagraj Vs. State of Mysore, their Lordships held: It is wen settled that the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. In Matajog Dobey Vs. H.C. Bhari, ; p. 50, their Lordships observed: The question may arise at any stage of the proceedings. The complaint may not disclose, that the Act constituting the offence was done or purported to be done in the discharge of official-duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Where sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. Where sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. In Sajoo Pradad's case, reference was made to the observation of Salaiman, J. in the case reported in 1939 F.C.R. 1595, which is to the effect that as the prohibition is against the institution itself, the applicability of the section must be judged at the earlier stage of institution. This view has been referred with approval in the case reported in Matajog Dobey Vs. H.C. Bhari, ; p. 50 patently clear from the above decision that the question of sanction should be taken up at the earliest possible stage, as and when it arises and/or raised, and its consideration should not be deferred till all possible evidence is recorded in the case. Section 197, Code of Criminal Procedure is founded on the principle that the Court cannot proceed with the case by taking cognizance of the same, without sanction, if sanction lawfully was required under the said section. If the Court u/s 197, Code of Criminal Procedure has no jurisdiction to take cognizance of an offence without sanction, ii will not be legal on its part to proceed with the trial of the case, as Boon as the accused is able to satisfy the Magistrate, that the case cannot proceed further without the sanction u/s 197, Code of Criminal Procedure. The protection given to a public officer u/s 197, Code of Criminal Procedure, being based on whole some objects and reasons, should be afforded to such an accused as soon as it is available, and consideration of such so matter should not be deferred till the end, or till any later stage of the trial, which might cause serious prejudice, harassment and other consequential evils and wrongs to the accused. So the examination of the question of sanction in this case has to be done on the materials available on record at present. 4. Now I have to advert to the question as to whether the alleged statement made by the opposite party was made by him while acting or purporting to act in due discharge of his official duty. So the examination of the question of sanction in this case has to be done on the materials available on record at present. 4. Now I have to advert to the question as to whether the alleged statement made by the opposite party was made by him while acting or purporting to act in due discharge of his official duty. The Supreme Court in Amrik Singh's Case, held It is not every offence committed by so public servant that requires sanction for prosecution u/s 197(1) of the Code of Criminal Procedure; nor even every Act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must proceed the institution of the prosecution. In Bhagwan Prasad Srivatsava Case, their Lordships observed: The object and purpose underlying this section is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to Act in the discharge of their official duty. The large interest of efficiency of State Administration demands that public servants should be free to perform their official duty fearlessly and unfettered by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognisance of the cases against them by the Courts. It is neither to be too narrowly construed nor too widely. It is neither to be too narrowly construed nor too widely. Too narrow and pendantic construction may render it otiose for it is no part of an official duty and never can be to commit an offence. In our view, it is not the 'duty' which requires examination so much as the 'act' because the official Act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional set up the idea, of legal equality or of universal subjection of all citizens to one law administered by the ordinary Courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition is above the law and every official from the highest down to the lowest is under the same responsibility for every Act done without legal justification as any other citizen. In construing Section 197, Code of Criminal Procedure therefore, a line has to be drawn between the narrow inner circle of strict official duties and act outside the scope of official duties. Thereafter their Lordships referred to certain observations in Matajog's case, and Amrik Singh's case. In Matalog's case, it is held: 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 u/s 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. 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. On the above view of the law on the matter the most question to be decided in the present case is whether the statement complained of, could be claimed to have been made in the discharge of the official duty of the opposite party. 5. Mr. Sahu, the learned Counsel for the Petitioner at first, contended that the opposition put up by the opposite party was not in due discharge of the official duty of the opposite party, as the scope and the subject matter of the Inquiry before the said Commissioner did not enjoin upon the opposite party, a duty to oppose the prayer of the Petitioner for payment of travelling allowance and expenses for his attending the Inquiry Commission, and for the aforesaid statement made by him in opposing the said prayer had no reasonable connection with the official duty of the opposite party, and as such he would not be entitled to the protection afforded u/s 197, Code of Criminal Procedure. The above contention, was repelled on behalf of the opposite party, on the ground that the opposite party, the Advocate General of the State, was instructed and engaged to appear before the said Inquiry Commission on behalf of the State on all the dates till the end of the inquiry, and so, he was legally and officially entrusted with the duty to represent the State before the Commission on all the different stages, including all the interlocutory stages, through which the commission preceded, and as such it was the duty of the opposite party to take all steps at all the different stages so that the work of the Commission of Inquiry, would proceed in a legal and proper manner without illegally, improperly or unnecessary affecting and impairing the interests of the State in any manner whatsoever. There is lot of force in what was submitted in support of the above contention on behalf of the opposite party. There is lot of force in what was submitted in support of the above contention on behalf of the opposite party. The entire expense of the Commission of Inquiry was to be borne by the State, and so the Advocate-General, who was engaged and instructed by the State to appear at all the different stages of the Inquiry I had legally the duty to see that in course of the said inquiry the State is not made to incur any unnecessary expenses, which 'would include payments uncalled for costs and other demands made by persons appearing before the Commission. It was the duty of the Advocate-General as the counsel for the State, in the said Inquiry, to assist the Commission in all possible manner, and at all different stages of the inquiry, in order that the Commission would arrive at correct conclusions in all matters including the interlocutory matters. As the Petitioner prayed for his travelling allowance and expenses, it was the duty of the Advocate-General to place relevant facts before the Commission 80 that the Commission would be in position to decide that matter in its true; perspective, on a proper appraisal of all the facts relating to the payment of such costs to the Petitioner. u/s 4 of the Commissions of Inquiry Act 1952, the Commission had the power to summon and to enforce the attendance of any person and to examine him on oath. The Commission could exercise the powers of a Civil Court trying a suit under the CPC in summoning and enforcing the attendance of any person before it, and accordingly it had the power to order for the payment of proper expenses, as provided for under Order 16, Rule 2, CPC to the persons who on being summoned appeared before the Commission. Thus payment of such expenses being a question, properly cropping up in course of the inquiry before the Commission both the parties and or their counsel had legally a right to make their submission in the matter, and so the Advocate-General, the counsel for the State, was legally competent to make his submissions opposing the above prayer of the Petitioner for the payment of costs demanded by him. Moreover, as stated by the Petitioner himself in his initial deposition before the S.D.M., the Commission directed the Advocate-General to give the views of the Government on the aforesaid petition and fixed a particular date for the hearing of that matter. Thus the opposite party was legally competent and perfectly justified in opposing the complainant's said petition, and so he was definitely dealing with the matter in due discharge of his official duty. It cannot therefore be said that he had no duty to oppose the complainant's prayer for payment of costs. Thus the above contention of Mr. Sahu is not well founded. 6. It was next contended by Mr. Sahu that it was not necessary for the opposite party to oppose the above mentioned prayer of the Petitioner by making statements of defamatory nature as alleged, and as such his above statements were not in due discharge of his official duty. Paragraph 5 and 6 of the complaint petition dealing with the alleged statements of the opposite party are as follows: 5. That when the complainant made such a prayer to the commission the above named accused opposed that prayer of the complainant stating that the complainant is not poor as he says before the commission falsely as the complainant has caused a loss of Rs. 25 Lakhs to the Government of Orissa by a stroke of pen, thereby suggesting and creating or trying to create an impression that the complainant has enriched himself by taking a share from that sum of Rs. 25 lakhs. 6. That the accused further asserted that he has documentary proof for proving the correctness of his allegations against the complainant. The material portion of the complainant's initial deposition before the S.D.M. is as follows: On 22-11-1967, the Advocate-General submitted a petition to the commission stating that under the rules, the Government is not to bear the expenses for my defence. I told the Commission that due to my financial condition I was not in a position to appear before the Commission on all dates. At this Shri Asok Das stood up and submitted before Hon'ble Mr. Khanna that "he has become wealthy man. He is not poor. By a stroke of pen, he has caused loss to the State Government of Orissa, to the extent of Rs. 25 Lakhs. At this Shri Asok Das stood up and submitted before Hon'ble Mr. Khanna that "he has become wealthy man. He is not poor. By a stroke of pen, he has caused loss to the State Government of Orissa, to the extent of Rs. 25 Lakhs. There are documents to prove this fact." He also suggested that "he has enriched himself by taking a share of the 25 lakhs of rupees. It is contended on behalf of the opposite party that the contents in both the above quotations consist of two parts, in the first part the statements alleged to have been made by the opposite party have been set out, and the second part consists only of the complainant's own inference on the above statements made by the opposite party, which is evident from what is stated in para 5 of the complainant petition. However, it is not necessary for me to delve into this aspect of the matter, as the question of sanction will arise even if an offence is constituted on the above statements taken as such. In Matalog's case it is held, as quoted previously, that no question of sanction can arise u/s 197 unless the Act complained of is an offence, and that it does not matter even if the Act exceeds what is strictly necessary for the discharge of the duty. "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". There are observations in Amrik Singh's Case, almost to the same effect. The opposite party in the present case, as found above opposed the Petitioner's prayer for costs in performance of his official duty. There is nothing so very incongruous in the alleged statements of the opposite party, on which it can be said that they have no concern or reasonable connection or relation with the official duty of the opposite party. The opposite party in the present case, as found above opposed the Petitioner's prayer for costs in performance of his official duty. There is nothing so very incongruous in the alleged statements of the opposite party, on which it can be said that they have no concern or reasonable connection or relation with the official duty of the opposite party. So even if it is said that in performing his duty be stated something which was in excess of the needs or requirements of the situation, he will still get the protection under' Section 197, Code of Criminal Procedure on the basis of the well settled Jaw laid down by their Lordships of the Supreme Court as stated above. There is therefore no merit in the above contention of Mr. Sahu. 7. Mr. Sahu also contended that Mr. Das, the opposite party, while appearing before the Commission was not acting in the capacity of the Advocate-General, but he was merely acting as an Advocate for the State, a party before the Commission, and so he was not entitled to the protection u/s 197, Code of Criminal Procedure. In this connection Mr. Sahu submitted that Advocate discharging their professional duties in Court do not 'enjoy absolute privilege for making defamatory statements, and so the opposite party, functioning as a counsel for a party in the commission was in the same position as any other Advocate appearing in the commission, and so he would not be entitled to the protection afforded u/s 197, Code of Criminal Procedure for having made the alleged defamatory statements. In support of his above contention Mr. Sahu-depended on certain observations of their Lordships of the Supreme Court in Smt. Harbans Kumar v. P.C. Chaturvedi (1969) 2 S.C.W.R. 613 , which in short are to the effect that a counsel does not enjoy absolute privilege when acting in the course of his professional duties, and that he will not be justified in making a personal attack against the complainant or witnesses on matters not borne out by the record, nor in using language which is abusive or obscene, or in making obscene or vulgar gestures in Court. In the above case an Advocate for a party used obscene and vulgar language and made some obscene and vulgar gestures against the Appellant in the presence of the judges in the Court, and so the Appellant wanted that a proceeding for contempt against the said counsel should be started. On the above facts and premises their Lordships, after making observations to the above effect, hold that any person who feels that he has been defamed by an Advocate or that an Advocate has committed other offences punishable under the ordinary law of the land, his remedy lies in taking appropriate proceedings under the Indian Penal Code or other law, and not by an application for punishment for contempt of Court. The question of sanction u/s 197, Code of Criminal Procedure, as in the present case, was not before their Lordships in any form or manner whatsoever, and so the observations, the findings and the decisions in the said case, which turned out on the facts and the peculiar considerations of that particular case, are not at all material for the decision of this matter. Moreover the question of any such privilege, as spoken of in the aforesaid case might arise only at the trial of the case. But the question of sanction arises at the stage of taking cognizance of the offence, and must proceed the institution of the prosecution, and is to be decided on various other different considerations and factors as laid down by high authorities mentioned above. Again as a counsel does not enjoy any such privilege, a complained of Act might prima facie constitute an offence, but the question of sanction would arise only when an offence is alleged against a person coming within the purview of Section 197, Code of Criminal Procedure. 8. Mr. Sahu in connection with the above contention also depended on the observations of their Lordships of the Supreme Court in Bhagwan Prasad Srivastava's case. One must also guard against too wide a construction because in our constitutional set up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary Courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. One must also guard against too wide a construction because in our constitutional set up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary Courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition is above the law and every official from the highest down to the lowest is under the same responsibility for every Act done without legal justification as any other citizen. While actually functioning as a counsel in a case before a Court, the Advocate-General is in the same position as that of any other lawyer, and he is not entitled to any special privilege and/or treatment in actually conducting the case as such in the Court. But only when he is sought to be prosecuted by a person for any alleged acts done by him while so conducting a case in the Court, a special protection is afforded to him u/s 197, Code of Criminal Procedure. This special protection is not available to all the other counsel who do not come within the purview of Section 197, Code of Criminal Procedure. The object and the reasons for affording the protection u/s 197, Code of Criminal Procedure has been dealt with by their Lordships of the Supreme Court in the same paragraph from which Mr. Sahu read out the above extract and a few lines from the same may profitably be quoted here. The object and purpose underlying this section is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The large interest of efficiency of State Administration demands that public servants should be free to perform their official duty fearlessly and unfettered by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. The large interest of efficiency of State Administration demands that public servants should be free to perform their official duty fearlessly and unfettered by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate effective and unhampered performance of their official duty by public servant by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognizance of the cases against them by the Courts. With the above objects and purposes law affords to the opposite party as the Advocate-General of the State, a special protection u/s 197, Code of Criminal Procedure and he is entitled to the same in preference to others in the legal profession who are not public servants of the category mentioned u/s 197, Code of Criminal Procedure. 9. The opposite party, as discussed above, was legally competent to oppose the Petitioner's prayer for costs and expenses before the Commission. He did so while performing the duties of the Advocate-General of the State, for under Article 165(2) of our Constitution, apart from his other duties he has to perform such duties of a legal character as may from time to time be referred to him by the Governor. In this case as stated above the opposite party was instructed by the State to appear on their behalf in the Commission of Inquiry at all the different stages till the end. The Commission directed the Advocate-General to give the view of the Government on the aforesaid petition and fixed a date for the bearing of the matter. The Advocate-General in opposing the Petitioner's said prayer did not state anything so very incongruous or irrelevant on which it can be said that his statements do not bear any reasonable connection or relation with the discharge of the official duty of the opposite party. Whether the alleged statements were made in proper discharge of his official duties or in excess of the same would not arise for consideration at present, for that would be a matter of defence, which may be required to be investigated on merits at the trial in case sanction for the prosecution is granted by the State. Whether the alleged statements were made in proper discharge of his official duties or in excess of the same would not arise for consideration at present, for that would be a matter of defence, which may be required to be investigated on merits at the trial in case sanction for the prosecution is granted by the State. Thug the opposite party is entitled to the protection provided u/s 197, Code of Criminal Procedure. I do not therefore, see any substance and weight in any of the contentions put forward by Mr. Sahu. 10. On the above discussions and considerations I am satisfied that the learned S.D.M. Bhubaneswar was legally correct and perfectly justified in not taking cognizance of the offence alleged against the opposite party in the case instituted against him by the Petitioner. - There is therefore no merit in this revision which is accordingly dismissed. Final Result : Dismissed