Judgment Birendra Pd. Sinha, J. 1. -on the 31st of May, 1966, one Bhubneshwar Prasad singh (opposite party No.2 ) filed a petition of complaint before the subdivisional Magistrate, Begusarai. It was alleged that one Borhan Singh entered into a contract with the Indian Oil Corporation Limited, Barauni, for the construction of a peripheral road. The complainant worked as a partner of Borhan singh in some of the contracts and at places acted as his representative. The work was completed on the 16th of December, 1965. R. L. Saini (another accused in the case) was engineer assistant. He took measurement of the work done under the contract and entered it in a book called measurement book. The measurement book was submitted to the petitioner, who was Assistant Engineer, on 2nd February, 1966, along with a bill of Rs.14,426 Borhan Singh accepted the bill for the above amount on the 8th February, 1966. The complainant had paid some money in cash to the petitioner which the letter required for paying the price of some land. He had also supplied him bricks etc. , for the construction of a house. The complainant requested the petitioner to forward the bill to the Executive Engineer but the matter was put off for quite some time on one reason or the other. On the 16th of February, 1966, the complainant made his last request to the petitioner to farward the bill. The petitioner asked the complainant to issue him a receipt for Rs.3,000, showing that the latter had received back his dues on account of the building materials and the cash advanced to the petitioner. The complainant refused. The petitioner thereupon became furious and threatened the complainant that he would detain the bill and reduce the amount. The complainant placed the matter before Shri N. L. Vishwakarma, the then Executive Engineer. Then the petitioner fixed up a date for rechecking at the site but did not turn up, although Borhan Singh waited there for the whole day, Borhan Singh then wrote a letter to the Chief Engineer in this connection. The complainant placed the matter before Shri N. L. Vishwakarma, the then Executive Engineer. Then the petitioner fixed up a date for rechecking at the site but did not turn up, although Borhan Singh waited there for the whole day, Borhan Singh then wrote a letter to the Chief Engineer in this connection. The Executive Engineer held an inquiry and during inquiry it transpired that the petitioner, in league with the engineer assistant r. L. Saini, had made cuttings and interpolations in the measurement book dishonestly reducing the amount of work done under the contract and the amount of the bill which the contractor was entitled to get for the work done by him. The complainant charged the petitioner and R. L. Saini with making forgery in the measurement book and thereby reducing the bill for the work done, causing wrongful loss to the contractor. 2. The learned Subdivisional Magistrate sent the petition of complaint to the police with a direction to institute a case on the basis of the complaint and submit final form after investigation. While the final form was still awaited, the complainant filed a petition of protest A final report was submitted by the police with a note "case mistake of law under section 466/467". Again, a protest petition was filed by the complainant. This was treated as a complaint. The complainant was examined on solemn affirmation and the matter was referred to a Magistrate for inquiry. After recording evidence of the witnesses, the learned Magistrate submitted a report saying that no prima facie case had been established. The petition of complaint was thereupon dismissed. The complainant moved the learned Sessions Judge in revision who upheld the order of the Subdivisional Magistrate. The complainant then came up to this Court. The order of the Subdivisional Magistrate dismissing the complaint was set aside by this Court and tho case was sent back to the Chief Judicial Magistrate with a direction that he should go through the petition of complaint and the statement made on solemn affirmatian and try to find out whether a prima facie case for summoning the accused persons in respect of the offences alleged was made out or not. Tho High Court in its order stated that if the Chief judicial Magistrate thought it necessary, he could hold an inquiry under section 202, Code of Criminal Procedure, himself on behalf of the petitioner, the question of sanction had also been raised and the High Court directed the Chief Judicial magistrate to apply his mind to this question and pass orders in accordance with law. When the matter came to the Chief Judicial Magistrate, he examined the witnesses on behalf of tho complainant. A report said to have been submitted by the Executive Engineer after inquiry was also brought on the record by the complainant The Chief Judicial Magistrate perused the materials (the petition of complaint, the statement of the complainant on solemn affirmation and other materials brought on record by the complainant) placed before him. He also heard learned Counsel on behalf of the complainant and the petitioner on point of sanction, He came to the conclusion that the materials placed before him provided sufficient ground to proceed against the petitioner for the offences alleged against him. He held that the acts done by the petitioner could not be said to have been done in the discharge of his duty as it was no part of his duty to bring about changes in the measurement book "unwarrantedly and actuated by malice". On th point of sanction, therefore, he held that the Court Was not debarred from taking cognizance of the offence. 3. The point raised in support of the present application by Shri balbhadra Prasad Singh is that in absence of sanction under section 197 of the Code of Criminal Procedure, the petitioner being a public servant could not be prosecuted. The admitted position in the case is that no sanction was obtained by the complainant under section 197 of the Code for prosecuting the petitioner. The point for consideration, therefore, is whether on the facts and in the circumstances of this case a previous sanction under section 197 of the Code is necessary before cognizance of the offence could be taken. 4. The question regarding sanction has come up for consideration by the different Court on many occasions and there has been considerable divergence of judicial opinion on the scope of section 197 of the Code. Shri Singh cited before me a very large number of decisions of the point. 4. The question regarding sanction has come up for consideration by the different Court on many occasions and there has been considerable divergence of judicial opinion on the scope of section 197 of the Code. Shri Singh cited before me a very large number of decisions of the point. The law relating to the circumstances under which a person can be said to be acting or purporting to act in the discharge of his official duty has now been well settled as a result of the decisions from the case of Dr. Hari Ram Singh V/s. Emperor (A. . I. R.1939 Federal Court, 43) up to the latest decision of the Supreme Court in pukhraj V/s. State of Rajassthan (A. I. R.1973 SC 2591 ). The difficulty arises in applying the law to the facts of a particular case. The main object and purpose underlying section 197 is to afford protection to a public servant against frivolous, vexatious or false prosecution for offences alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. A public servant should be free to perform his official duty fearlessly and undeterred by the apprehension of his possible prosecution at the instance of a private party to whom annoyance or injury may have been caused by the public servants legitimate act done in the discharge of his official duty, In the case of Shreekantiah Ramayya Munipalli V/s. Slate of Bombay ( AIR 1955 sc 287 ), Bose, J, delivering the judgment of the Court, held that if section 197 of the Code was construed too narrowly it can never be applied, for of course it was no part of an officials duty to commit an offence and can never be. But it was not the duty which the Court have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. . Whatever may be the intention or motive behind an act, the physical part of it remains unaltered. In one case it is done in the discharge of an official duty and in the other in purported exercise of it. . Whatever may be the intention or motive behind an act, the physical part of it remains unaltered. In one case it is done in the discharge of an official duty and in the other in purported exercise of it. In the case of Amrik Singh V/s. State of Pepsu, AIR 1955 SC 309 ), venkatarama Ayyar, J. , summed up the result of the authorities thus : "it is not every offence committed by a public servant (hat requires sanction for prosecution under S.197 (1), Criminal P. C. ; 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 precede the institution of the prosecution". The Judicial Committee in the case of H. H. B. Gill V/s. The King (AIR 1948 pc 128) had observed. "a public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. . . . . . . The test may well be where the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". The Supreme Court in Malajog Dobey V/s. H. C. Bhari, ( AIR 1956 SC 44 ) held 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". In Bhagwan Prasad Srivastava V/s. A. P. Misra ( AIR 1970 SC 1661 ), it was observed thus: "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 dicharge 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 enquality or of universal subjection of all citizens to one law administered by the ordinary court 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 Sectionl97, Cr. P. C. therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of offical duties". Judging in this context, sanction to prosecute the petitioner would have been necessary. The allegations made in the petition of complaint and other materials on the record would indicate that it was part of the petitioners duty to check and verify the entries in the measurement book. If questioned, the petitioner could lay claim that the act done by him was by virtue of his office. Whether any such claim would be true or not is not a matter relevant at the time of sanction. But all this will depend upon whether the petitioner working at the relevant time with the Indian Oil Corporation Ltd. is a public servant within the meaning of section 21 of the Indian Penal Code. 5 Shri Ras Behari Singh, learned Counsel appearing on behalf of the complainant opposite party No.2, submitted that the petitioner at the relevant time was in the service of the Indian Oil Corporation Ltd. , and such was not a public servant within the meaning of section 21 of the Indian Penal Code. 5 Shri Ras Behari Singh, learned Counsel appearing on behalf of the complainant opposite party No.2, submitted that the petitioner at the relevant time was in the service of the Indian Oil Corporation Ltd. , and such was not a public servant within the meaning of section 21 of the Indian Penal Code. According to him, sanction was not necessary to prosecute him for any act done or purported to have been done by him while in service of the Indian Oil corporation Ltd. The Chief Judicial Magistrate before whom also this question had been raised held that the petitioner was a public servant for the purposes of section 197 of the Code of Criminal Procedure, even though he was working at the relevant time with the Indian Oil Corporation on lien. Shi Ras Behari singh relied upon a single Judge desision of this Court in The State V/s. B. L. Ohri (A. I. R 1967 Patna 441 ). B. L. Ohri and I. D. Ambastha were officers of the government of India and were at the relevant time working as the Chief Mining engineer and Manager of a colliery under the control of the National Coal development Corporation. They were tried and convicted for an offence under section 73 of the Mines Act. The offence was said to have been committed sometime in february 1961. They were acquitted by the Additional Sessions Judge who held the trial. The State of Bihar came in appeal to the High Court. On behalf of the respondents, B. L. Ohri and another, it was urged that being officer of the Government of India, they could not be prosecuted without sanction. Shambhu Prasad Singh, J. , held that the language of section 197 showed that the sanction of the Central Government was necessary only when the person accused of an offence at the time of commission of it was employed in connection with the affairs of the Union. According to him, in that case, the respondents at the time of the commission of the alleged offence were employed in connection with the affairs of the National Coal Development corporation and not the Government of India and, therefore, no sanction for their prosecution was necessary. According to him, in that case, the respondents at the time of the commission of the alleged offence were employed in connection with the affairs of the National Coal Development corporation and not the Government of India and, therefore, no sanction for their prosecution was necessary. Reliance was also placed on the decision of the supereme Court in R. R. Chari V/s. State Off Uttar Pradesh (A. I. R.1962 S. C.1575), In that case the accused was an employee of the Government of Assam whose services had been lent to the Government of India during the period covered by the charge, i. e. from January 1946 to September 1946 sanction to prosecute him was granted by the Governor General. Gajendragadkar, j. (as he then was) dealin with the question observed that what was relevant for the purpose of deciding as to who should give the sanction, was to ask the question "where was the public servant employed at the relevant time". 6. In the present case the petitioner was employed at the relevant time in a company and not in connection with the affairs of the State Government. Shri Balbhadra Prasad Singh, however, urged that with the insertion of clause (12) in section 21 of the Indian Penal Code by the Criminal Law Amendment act, 1958, the scope of the section was enlarged. He submitted that the employees of a statutory trading corporation and Government company fall within the class of public servants as defined in section 21. As a result of this clause, according to learned Counsel, every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by the Central, Provincial or State Act or of a Government company as defined in the Companies Act, is a public servant. This argument was made by Shri Balbhadra Prasad Singh in the case, The State V/s. B. L. Ohri (supra)also but was not accepted. Sec.617 of the Companies Act 1956 says that for the purpose of the Act Government company means a company in which not less than fifty-one per cent of the paid-up share capital is held by the Central government or by any State Government or Governments or partly by the central Government or partly by one or some State Governments and includes a company which is a subsidiary of a Government company. There is no evidence of the records of this case to show that in the Indian oil Corporation Ltd. , fitly one per cent paid-up share capital is held by the central Government or the State Government or partly by the Central governmet and partly by the State Government. In the absence of any such material, it is not possible to hold that the petitioner being at the relevant time employed in the Indian Oil Corporation will be deemed to be a public servant. At the trial, it may be open to the petitioner to place the relevant materials before the Court below. It is, therefore, not possible to accept the contention of Shri Balbhadra Prasad Singh in this respect. I find that the learned Chief judicial Magistrate was wrong ia holding on the basis of the materials on record that the petitioner will be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, even though at the relevant time he was working in the Indian Oil Corporation. 7. The result is that, in the facts and circumstances of the case, and in view of the materials placed before me, sanction to prosecute the petitioner for the acts done by him while working in the Indian Oil Company is not necesssary at this stage. This application, therefore, must fail and is dismissed. Application dismissed.