JUDGMENT - WAIKAR M.R., J.: - The applicant(original accused No. 2) has rushed to this1 Court with a petition under section 482 of the Criminal Procedure Code under the following circumstances. On a criminal complaint that was filed by the opponent No. 1 against this petitioner and opponent No. 2 for the offences punishable under sections 426, 380 read with section 34 of the Indian Penal Code, the learned Magistrate directed the police to enquire and submit its report on or before 6-2-1978, but as no report was received till 5-8-1978 the Magistrate after hearing the counsel for the complainant passed the following order dated 5-8-1978. “Complainant is absent by Shri Jaiswal, Advocates. Arguments heard order passed on Ex. 1 that the summons be issued against both accused as payment of P. F. in 3 days case for appearance to.. .. on 13-9-1978.” 2. The petitioner is the Chief Officer(hereinafter called the “C. O.”) of the Municipal Council, Amravati. The opponent No. 2 was the President of the Municipal Council at the relevant time. The opponent No. 1(complainant) was occupying the upper storey of Municipal House No. 578 and lower storey of House No. 578 to 587 since 1961. It was alleged that the petitioner and the opponent No. 1(arrayed as accused Nos. 1 and 2 in the complaint) entered into a conspiracy on 30-8-1974 and sent 10 or 12 coolies and the other employees of the Municipal Council to break open the lock and remove all the articles of the complainant worth Rs. 10,000 which were stored inside the house that was pulled down. They also took away the bricks, wooden doors, tins etc., in the truck of the Municipal Council, without any previous intimation or previous warning. This Act did not fall under any of the provisions of the Maharashtra Municipalities Act. The accused misused their powers, with an intention to cause financial loss and harassment to the complainant and committed the offences punishable under sections 426 and 380 of the Indian Penal Code. 3. What is submitted in this petition is that the Chief Officer is a servant of the State Government, though he draws his salary and allowances from the municipal funds. He is removable by the State Government alone vide section 75-A of the Maharashtra Municipalities Act. 3. What is submitted in this petition is that the Chief Officer is a servant of the State Government, though he draws his salary and allowances from the municipal funds. He is removable by the State Government alone vide section 75-A of the Maharashtra Municipalities Act. On 10-7-1974 the beat peon of the municipal council reported that the house belonging to one Ghanshyam Kishanchand was in a dilapidated condition and posed a threat to Public safety. On enquiry it was found that 2/3rd portion of the said house had fallen down and the remaining portion could fall at any moment. A notice under section 195 of the Maharashtra Municipalities Act was served on the owner directing him to pull down the portion which was dangerous within three days. This notice was served on the owner on 20-7-1974. Since the owner did not comply with the direction, the Municipal Council decided to take the action under section 195 of the said Act and the house was accordingly pulled down on 30-8-1974. It was also stated that on receiving the complaints of nuisance from the public, the police had submitted the report on 13-8-1974 to the Sub Divisional Magistrate Amraoti, who on the said report had requested the Chief Officer to take action under section 195 of the Act and report about the action taken, to him and to the police. 4. The preliminary contentions raised as to the tenability of the criminal complaint are that the offence of mischief under section 426 was barred by limitation and no cognisance could be taken and secondly that the complaint was not competent in the absence of the previous sanction under section 197 of the Criminal Procedure Code, which bars the jurisdiction of the Magistrate to take cognizance of any offences committed by any person who is a public servant, except with the previous sanction of the State Government. Lastly it was submitted that once the Magistrate had decided to proceed under section 202 of the Criminal Procedure Code directing an enquiry to be made by the police, he had no jurisdiction to take cognizance by any method other than the report of the police. 5. Lastly it was submitted that once the Magistrate had decided to proceed under section 202 of the Criminal Procedure Code directing an enquiry to be made by the police, he had no jurisdiction to take cognizance by any method other than the report of the police. 5. Now the offence under section 380 of the Indian Penal Code is punishable for a term which may extend to seven years and Shri K. H. Deshpande the learned counsel for the petitioner, therefore rightly did not press the contention about the limitation before us. So also the contention that the Magistrate could not take congnizance, once he had directed an enquiry under section 202 of the Criminal Procedure Code was also not pressed. The Magistrate by his order dated 23-12-1977 had directed an enquiry under section 202, Criminal Procedure Code to be made by the police, but till 5-8-1978 no report was received. If under the circumstances the Magistrate rescinds the order and proceeds to take cognizance and directs the issue of process upon the material already available before him, it cannot be said that he acted without jurisdiction. 6. What was submitted with some vehemence by Shri K. H. Deshpande was that Chief Officer was an employee of the State. Section 75-A(i) of the Maharashtra Municipalities Act, empowers the Government to constitute municipal service or services of the Chief Officer. Sub-section(2) empowers the State Government to make rules in that behalf. The State Government issued notification dated 1-5-1974 in pursuance of section 75-A of the Act constituting the services of the Chief Officers as per rules. The State Government is thus the appointing authority in respect of the Chief Officers of the Municipal Councils of A and B classes. It was submitted that the Municipal Council of Amravati of which the petitioner was the Chief Officer is class A Municipal Council and as such the petitioner was a public servant within the meaning of section 197, Criminal Procedure Code. 7. It was further submitted by him that the petitioner acted or purported to act under section 195 of the Maharashtra Municipalities Act. The alleged act of demolishment of the dilapidated part of the house in question was an act which was relatable to his powers under section 195, even though it was alleged that it was an abuse or misuse of his power. The alleged act of demolishment of the dilapidated part of the house in question was an act which was relatable to his powers under section 195, even though it was alleged that it was an abuse or misuse of his power. The motive operating in the mind of the public servant, it was submitted, if he purports to act under his official capacity as a public servant would be immaterial. The absence of the requisite sanction under section 197, Criminal Procedure Code, therefore manifestly must operate as a legal barrier for the Magistrate to take cognizance of this complaint. Reliance was placed by him on(Pukhraj v. State of Rajasthan and another)1, A.I.R. 1973 S.C. 2591. it was observed by the Supreme Court :- “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 he may have a dishonest intention. Now 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, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty.” 8. The view of the Judicial Committee of the Privy Council in(Gills case)2, A.I.R. 1948 P C 128. was quoted with approval in this decision. The view is :- “A Public servant can only be said to act or 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 whether the public servant if challenged, can reasonably claim that, what he does, he does in virtue of his office”. 9. This decision further relying upon the earlier observations made in case of(Saroj Prasad v. King Emperor)3, A.I.R. 1946 P C 25. and the observations of(Sulaiman J. in Hori Ram Singhs case)4, A.I.R. 1939 F C 43. 5. A.I.R. 1979 S.C. 1841. 9. This decision further relying upon the earlier observations made in case of(Saroj Prasad v. King Emperor)3, A.I.R. 1946 P C 25. and the observations of(Sulaiman J. in Hori Ram Singhs case)4, A.I.R. 1939 F C 43. 5. A.I.R. 1979 S.C. 1841. reads thus:- “We must also make it clear that this is not the end of the matter … … … … … … … … the mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction … … … … … … .. … But the facts subsequently coming to light during the course of judicial inquiry or during the course of the prosecution evidence of the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage”. 10. In a latter decision reported in(S. B. Shall and others v. M. S. Kochar)5, A.I.R. 1979 S.C. 1841. it was observed :- “The question of sanction under section 197 can be raised and considered at any stage of the proceedings. In considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint. It can take into account all the materials on the record at the time when the question is raised and falls for consideration. 11. Now so far as the act of pulling down of the structure in question is concerned, the petitioner may be said to have purported to act under the provisions of section 195 of the Municipalities Act. It is true that section 195 requires a notice to be given to the occupier, if the building is not occupied by the owner. Here the notice may have been given to the owner but admittedly no notice was given to the occupier(complainant). Even so it may be said that the act and the official duty are so inter-related that one can postulate reasonably that the act was done by the Chief Officer in performance of an official duty though not strictly in accordance with the provisions of the said section. Even so it may be said that the act and the official duty are so inter-related that one can postulate reasonably that the act was done by the Chief Officer in performance of an official duty though not strictly in accordance with the provisions of the said section. But so far as the allegations of theft are concerned, it is alleged that the accused removed the property which belonged to the complainant and it has neither been returned to him nor is he informed of the same. Shri K. H. Deshpande submitted that there are no rules and no procedures laid down as to how the debris of the pulled down structure or the property that is found inside the house which is broken open is to be dealt with. He, however, submitted that the act of removal of all the articles from the site for safe custody must be deemed to be in continuation of the official act of pulling down of the structure. 12. Now in the absence of any rules or procedures prescribed ordinarily the articles found inside the house which was broken open should have been offered to the occupier to whom it legitimately belonged and on his refusal to take them away the question of its safe custody could arise. Here after the pulling down of the building on 30-8-1974 till this day the Chief Officer neither called upon the complainant to take away his articles nor issued any notice to him. It is submitted that it was for the complainant to move the concerned authorities for release and return of his property while it is contended by Shri Desai, the learned counsel for the complainant that the property found inside the house under no circumstances could be retained by the Chief Officer to the detriment of the person to whom it legitimately belongs, without giving any intimation or notice to him to take it away and in doing so it cannot be said that he purported to act in his official capacity as the Chief Officer. The property found inside the house, it is submitted, had nothing to do with the threat that was held out by the ruinous structure. The property found inside the house, it is submitted, had nothing to do with the threat that was held out by the ruinous structure. It is also submitted that the non-issuance of any prior notice to the occupier, as required by section 195 and removal and retention of his valuable property found inside the building, after it was pulled down, with which the Chief Officer or the Municipal Council had no concern and non issuance of any intimation or notice to the occupier to take away his property, therefore would show that the Chief Officer had the dishonest intention to hold the property which admittedly belonged to the complainant. 13. Whether the removal of the property of the complainant by the Chief Officer without calling and offering the property to the legitimate owner was an act referable or relatable to the act of pulling down of the dangerous structure as contemplated by section 195 could be decided only after the recording of some evidence. Merely on the allegations as made in the complaint it could not be said that the bar of section 197 Criminal Procedure Code operated against the Magistrate taking cognizance of the offence punishable under section 380, Indian Penal Code. 14. Lastly there is one more aspect of the matter which in our opinion is of paramount consideration. It is no doubt true that inherent jurisdiction of the High Court can be exercised to quash the proceedings, in an appropriate case either to prevent an abuse of the process of the Court or otherwise to serve the ends of justice. But the High Court would ordinarily refrain to interfere with the said proceedings at an interlocutory stage. As is now revealed from the record of the lower Court, in response to the process issued by the learned Magistrate the petitioner did appear before him and raised those very preliminary objections in writing on 10-11-1978. The opponent No. 1(complainant) filed his reply to the preliminary objection so raised. The matter, was set down by the Magistrate for hearing the preliminary objections raised by the petitioners about the tenability of the complaint, but before the matter could be heard by the learned Magistrate the petitioner filed this petition on 17-1-1979 and secured stay of further proceedings pending before the Magistrate. The matter, was set down by the Magistrate for hearing the preliminary objections raised by the petitioners about the tenability of the complaint, but before the matter could be heard by the learned Magistrate the petitioner filed this petition on 17-1-1979 and secured stay of further proceedings pending before the Magistrate. What is deplorable is that this fact was suppressed and it came to the light only at the time of hearing of this petition. Thus the provisions of section 482, Criminal Procedure Code were invoked more to deflect the course of justice and delay the proceedings before the lower Court than to prevent the abuse of the process of the Court and to prevent mis-carriage of justice. On this ground also the petition deserves to be dismissed. 15. In the result, therefore, petition is dismissed. Petition dismissed. ------