JUDGMENT T.S. Misra, J. - This revision arises in the following circumstances Rajendra Singh had filed a complaint dated 24th May, 1969 against the present applicants and others under sections 362, 220, 342, 323, 325, 109 and 114 of the Indian Penal Code. The present applicants were impleaded as accused Nos. 1, 4, 5 and 6 respectively. The complainant Rajendra Singh alleged in his complaint that the accused No. 9, Sri Rain Gopal Khandelwal, was a congress leader of Mau and bore grudge against him. He was friendly with accused No. 10 and being the Chairman of Mau Municipal Board and also political leader often came in contact with the officers of the district who were impleaded as accused in the case. The complainant claimed himself to be a worker of the communist party and the member of the district communist party of Azamgarh. His contention was that as communist worker he used to expose the short- comings in the administration of the accused persons and they, therefore, got annoyed with him. It was alleged in the complaint that at about 3.30 p. m. on 29th September, 1969 the complain- ant came to take tea in a shop. He saw that the accused No. 2. namely Sub-Inspector Iqbal Narain Singh, accompanied by accused Nos. 11 and 12 and P.A.C. constables were beating the passersby and also those who were sitting in different hotels and restaurants. He alleged that the accused Nos. 11 and 12 were hurling stones and brick-bats upon passersby. He, there- fore, protested against this high-handed- ness and asked to stop it but in vain. The accused No. 2 exhorted a P. A. C. constable and rushed to beat the complainant with a lathi. The complainant rushed upstairs and took shelter in the office of his party. Abdul Baqi, the Secretary of the communist party, meanwhile reached there and t the complainant narrated the entire occurrence to him. He along with Abdul Baqi then proceeded towards police station to complain against the high-handedness of accused No. 2 and his companions. When the complainant and Abdul Baqi reached in front of the house of one Sri Nath the station officer Mau was seen corning along with a few constables. He along with Abdul Baqi then proceeded towards police station to complain against the high-handedness of accused No. 2 and his companions. When the complainant and Abdul Baqi reached in front of the house of one Sri Nath the station officer Mau was seen corning along with a few constables. The complainant along with Abdul Baqi proceeded towards them in order to apprise the Station Officer of the situation but in the meanwhile the P. A. C. Subcdar came there and pointed out towards the complainant and said that it was he who was preventing the lathi-charge. Accused No. 3 then ordered his companion constables to arrest the complainant and thus he was put under arrest. It is said that at the same time one Tarkeshwar Singh also arrived there and lie was also arrested under the orders of accused No. 3. They were taken to police station and were detained in the lock-up of the thana in the night of 29th/30th March, 1969. The complainant further alleged that at about 8.30 a. m. on 30th March, 1969, i.e. on the next day of his arrest and detention, the accused Nos. 1 and 3 to 7 accompanied by a few constables came in front of the door of the lock-up. Accused No. 1 asked the accused No. 3 as to who those persons were. The accused No. 3 then pointed out towards the complainant and Tarkeshwar Singh whereupon accused No. I uttered that inki marmmat honi chaihye'. Accused No. 4 then ordered that the complainant and Tarkeshwar Singh be taken out of the lock-up and should he beaten where- upon the accused Nos. 5 and 6 asked the police constables to take out the complainant and Sri Tarkeshwar Singh hand-cuffed and tied with ropes. Accused No. 8 opened the lock of the lock-up and hand-cuffed the complain- ant and tied him with a rope. Three police constables under the direction of accused No. 3 took the complainant at the place where accused Nos. 1, 4, 9 and 10 were sitting. Accused No. 1 then again asked about the complainant and asked accused Nos. 9 and 10 about the complainant if he was the same man to which accused Nos. 9 and 10 replied in the affirmative. Thereupon the accused Nos. I and 4 ordered that the complainant should be beaten. 1, 4, 9 and 10 were sitting. Accused No. 1 then again asked about the complainant and asked accused Nos. 9 and 10 about the complainant if he was the same man to which accused Nos. 9 and 10 replied in the affirmative. Thereupon the accused Nos. I and 4 ordered that the complainant should be beaten. Consequently one of the police constables caught hold of the rope by which the complainant was tied and one constable and three police head-constables beat the complainant with lathis whereby he received injuries and became un-conscious. When he regained conscious- ness, he was again taken back to the lock-up and was confined there. Tarkeshwar Singh was also similarly beaten. The complainant had alleged that the entire incident was witnessed by a large number of persons. He further alleged that at about 8.30 p. m. on 30th March, 1969 the complainant was sent to the District Jail, Azamgarh, and was confined there. He approached the Jailor to forward his complaint but he was not allowed to send any complaint. Ultimately on 11th April, 1969 he was released from jail along with Tarkeshwar Singh. He then sent a report of the occurrence to the Station Officer Mau and other higher authorities on 12th April, 1969. On these allegations the complainant has sought the prosecution of the 12 accused persons named in his complaint. 2. This complaint was filed in the court of Additional District Magistrate (Judicial), who passed an order on 24th May, 1969 to register it and fixed 4th June, 1969 for the statement of the complainant. This statement of the complainant was accordingly recorded on 4th June, 1969. The learned A.D.M. (J) then fixed 14th June, 1969 for taking evidence under section 202, Cr.P.C. Consequently the statement of Abdul Baqi, Vinai Kumar Srivastava and Tarkeshwar Singh were recorded under section 202, Cr. P. C, on 14th June, 1969. The statement of Qarnruddin, Krishna Nand Shukla, Manhar Ali and Mohammad Taiyab were also recorded by the learn. ed Magistrate on 25th June, 1969. The complainant also moved an application on 25th June, 1969, which is paper No. 8/Ba stating that the documents mentioned therein were necessary for the perusal of the court so that the court may be satisfied about the truth of the case and prayed that the persons mentioned therein be summoned along with the documents noted against their names. The complainant also moved an application on 25th June, 1969, which is paper No. 8/Ba stating that the documents mentioned therein were necessary for the perusal of the court so that the court may be satisfied about the truth of the case and prayed that the persons mentioned therein be summoned along with the documents noted against their names. The record keeper of the police office was summoned with the application of Rajendra Singh dated 12th April, 1919. The Medical Officer Incharge, Jail Dispensary was summoned with the injury report of Rajendra Singh and Tarkeshwar Singh examined on 30th March, and 31st March, 1969. The general diary of the police station of Mau of 29th and 30th March, 1969 and the report of S.O. Mau lodged in crime No. 83 of police station Mau for 1969 were also summoned. The learned Magistrate passed the order calling for 7th July, 1969. It appears from the order sheet that the doctor did attend the court on some dates but on those dates his statement was not records for reasons stated therein. His statement was, however, not recorded nor the injury report summoned was filed. A copy of the report of the S.O. and the case diary in crime No. 83 were filed. The general diary of 29th March, and 30th March, 1969 was also filed. 3. The learned Additional District Magistrate (Judicial) considering the evidence of the aforementioned witnesses produced by the complainant, the general diary of 29th and 30th March, 1969 and the F.I.R. in crime No. 83' Pound that there were sufficient grounds to proceed with the case. The learned Additional District Magistrate (Judicial) also observed that the injuries of the complainant were also mentioned in the general diary. The contention as to whether the case was barred under section 197, Cr.P.C. was repelled on the ground that the allegations made in the complaint could not be said to be connected with official duty because beating a person in the lock-up is not the duty of any public servant. The learned Additional District Magistrate, therefore, summoned the accused per- sons. Sri D.P. Arya, Sri C. B. Singh, Sri J.L. Verma and Sri O.P. Saxena preferred a revision against the said order in the court of the Sessions Judge, Azamgarh. That revision was, however, dismissed. They have now come up to this Court in revision. 4. The learned Additional District Magistrate, therefore, summoned the accused per- sons. Sri D.P. Arya, Sri C. B. Singh, Sri J.L. Verma and Sri O.P. Saxena preferred a revision against the said order in the court of the Sessions Judge, Azamgarh. That revision was, however, dismissed. They have now come up to this Court in revision. 4. The learned counsel for the applicants submitted at the outset that as the present applicants, who were public servants and were not removable from their office save by sanction of the State Government, are accused of the offences alleged to have been committed by them the learned Additional District Magistrate (Judicial) should not have taken cognizance of the offence except with the previous sanction of the Government as required by section 197 of the Code of Criminal Procedure. There is no merit in this contention. The scope and object of the provisions of section 117, Cr.P.C. were examined by the Supreme Court in a number of cases, the latest being Pukhraj v. State of Rajasthan, 1973 (2) S.C.C. 701 In that case it was held : "The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although lie may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, be- cause an offence can never be an official duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the 'capacity in which the act is performed', 'cloak of office' and 'pro- fessed exercise of the office' may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty." 5. In Malajog Dubey v. H.C. Bahri, A.I.R. 1955 S.C. 44 the Supreme Court after referring to the earlier cases summed up the result as follows : "There must be a reasonable connection between the act and the discharge of official duty the act "must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." 6. Applying these tests it is not possible to say at this stage that the acts complained of, i.e. of beating the complain- ant, could be said to have been done in the course of performance of duty. Of course, at this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the present applicants are alleged to have done could be said to have been done in performance of their duty. The facts as have been alleged do not make out such a case. I may, however, make it clear that I express no opinion as to the truth or falsity of the allegation. At this stage the court has only to see whether the acts alleged against the present applicants could be said to be in purported execution of their duties. But facts subsequently coming to light during the course of judicial inquiry or during the course of prosecution evidence at the trial may establish the necessity of sanction. At this stage the court has only to see whether the acts alleged against the present applicants could be said to be in purported execution of their duties. But facts subsequently coming to light during the course of judicial inquiry or during the course of prosecution evidence at the trial may establish the necessity of sanction. Whether sanction is necessary or not may have to depend from stage to stage and the necessity may reveal itself in the course of the progress of the case. See Matajog Dubey v. H.C. Bahri, supra. 7. It was next contended that the learnded Additional District Magistrate (Judicial) committed error in summoning the accused inasmuch as no prima facie case against the accused persons was made out. It was submitted that the learned Additional District Magistrate (Judicial) had failed to consider that the general diary contradicted in material terms the statement of the complainant and his witnesses inasmuch as the case of the complainant was that he was beaten on 30th March, 1969 at about 8.30 a. in, whereas the general diary showed that the complainant had injuries on his body on 29th March, J,969 and that the general diary of 30th March, 1969 did not show that the complainant received any injuries on that date. In order to appreciate the argument it would be necessary to examine the scope and object of section 202 and 203, Cr.P.C. 8. Under section 190 of the Code of Criminal Procedure a Magistrate can take cognizance of an offence either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is present. ed before him he can under section 200, Cr.P.C. take cognizance of the offence made out and has to then examine the complainant and his witnesses. The object of such examination was considered by the Supreme Court in the case of Nirmaljit Singh Hoon v. State of W.B. 1973 (3) S.C.C. 753 . It was held : "The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether "there is or not sufficient ground for proceeding. Such examination is provided therefore to find out whether "there is or not sufficient ground for proceeding. Under section 202, a Magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a Magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under Section 203, he may dismiss the complaint; if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under section 202, there is in his judgment,no sufficient ground for proceeding'. The words 'sufficient ground' used also in section 209 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. The inquiry envisaged there is for ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint." 9. Thus the test is whether there was sufficient ground for proceeding and not whether there was sufficient ground or conviction. Where there is prima asie evidence, even though the person charged of an offence might have a defence, the matter has to be left to be decided by the appropriate forum at e appropriate stage and issue of a process cannot be refused. Unless therefore the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence A-38 makes out a prima facie case. The question therefore is whether while applying this test the Additional District Magistrate (Judicial) was right in issuing process against the present applicants. Unless therefore the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence A-38 makes out a prima facie case. The question therefore is whether while applying this test the Additional District Magistrate (Judicial) was right in issuing process against the present applicants. It appears that the complainant examined himself and a number of witnesses under section 202, Cr.P.C. He also filed an application for summoning the doctor of the jail dispensary along with the injury report. He also summoned the general diary and the F.I.R. lodged by S. 0. Mau in crime No. 83. The doctor did appear before the court of the Additional District Magistrate (Judicial) but his evidence was not recorded because the presiding officer was on leave. No effort was thereafter made to examine the doctor. The order sheet of the court of the Additional District Magistrate (Judicial) also does not dis- close as to why the evidence of the doctor was not recorded. The general diary and the F.I.R. referred to above were, however produced. If some evidence has not been produced then the test is whether despite that omission there is evidence on record which makes out sufficient cause for proceeding with the case. The complainant need not necessarily produce at this stage all the evidence available to him. Merely be- cause the complainant did not produce some evidence it could not be a ground for throwing out his complaint, even though such of the other evidence he led was capable of making out a prima facie case (1). It is equally settled that some credible evidence as may prima facie show the commission of the offence must be produced by the complainant who wants the Magistrate to issue a process against the accused persons. The contention on behalf of the applicants was that there was no credible evidence on the record which could prima facie show the commission of the offence by them and therefore the learned Additional District Magistrate (Judicial) was not justified in summoning the accused persons. We have, therefore, to see whether there is any legal credible evidence on the record as may prima facie show,the commission of the offence. We have, therefore, to see whether there is any legal credible evidence on the record as may prima facie show,the commission of the offence. The learned Additional District Magistrate (Judicial), as pointed out earlier, has relied on the general diary of 29th and 30th March, 1969 and the F.I.R. of crime case No. 83 besides the statement of the complainant and other witnesses produced by the complainant to arrive at a finding that there were sufficient grounds to proceed with the case. It, however, appears that neither the general diary of 29th and 30th March, 1969 nor the F.I.R. of crime No. 83 was proved according to law. This position was conceded by the learned counsel for the applicants as well for Rajendra Singh complainant. The position then is that the said two documents, namely, the general diary and the F.I.R., were inadmissible in evidence inasmuch as they were not proved according to law.. The learned Additional District Magistrate (Judicial) has thus considered both admissible as well as inadmissible evidence to arrive at the said finding. In Dhirajlal v. I.T. Commr., Bombay, A.I.R. 1955 S.C. 271 it was held : "It is well established that when a court of fact acts on material, partly relevant and partly irrelevant, it is im-possible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated be- cause of the use of inadmissible material and thereby an issue of law arises." 10. In the present case the learned Additional District Magistrate (Judicial) has also acted on material which was in- admissible in evidence. That being so, it is not possible to say to what extent the mind of the Additional District Magistrate (Judicial) was influenced by the inadmissible evidence used by him in arriving at the said finding. Such a finding is vitiated because of the use of inadmissible material, hence it cannot be maintained. The case has, therefore, to be sent back to the learned Magistrate because it is f or him to be satisfied whether there is prima acie case against the present applicants. The learned counsel for Rajendra Singh complainant submits that the complainant may be permitted to examine the doctor concerned along with the injury report. The case has, therefore, to be sent back to the learned Magistrate because it is f or him to be satisfied whether there is prima acie case against the present applicants. The learned counsel for Rajendra Singh complainant submits that the complainant may be permitted to examine the doctor concerned along with the injury report. It has already been pointed out that the cony plainant did summon the doctor along with the injury report and the doctor did appear before the Additional 'Magistrate (Judicial) on several dates but his statement was not recorded. The doctor shall, therefore, lie summoned along with the relevant injury report pertaining to Rajendra Single complainant and Tarkeshwar Singh and the complainant shall be given an opportunity to examine him and prove the injury report. 11. In the result, the revision is allowed. The order dated 9th November, 1970 passed by the Sessions Judge, Azamgarh and the order dated 13th November. 1969 passed by the Additional District Magistrate (Judicial), Azanigarh are set aside. The case is sent back to the Additional District Magistrate (Judicial), Azamgarh for consideration as to whether there was sufficient ground for proceeding as contemplated by section 203 of the Code of Criminal Procedure, 1898 and in the light of the observations made here to fore. The complainant will be given an opportunity to produce such evidence as he may deem fit and proper under section 202, Cr.P.C. The interim order dated 19th January, 1971 is vacated.