JUDGMENT : G.B. Patnaik, J. - In both these applications, the accused is common and identical question of law is involved though the complainants are different persons. Since identical question of law is involved in both these applications, they were heard together and are being disposed of by this common judgment. 2. The petitioner was at the relevant time a Deputy Superintendent of Police posted at Bolangir and in that capacity served at Bolangir from 3-11-1978 till 15-5-1981. In these two applications he has invoked the inherent jurisdiction of this Court to quash the cognisance taken against him in two complaint cases, namely ICC. No. 109 of 1980 and ICC. No. 108 of 1980 and also to quash both the criminal proceedings, mainly on the ground that section 197 of the Code of Criminal Procedure (hereinafter referred to as the "Code") prohibits taking of such cognisance without sanction of the State Government and also on the ground that the Magistrate committed error in relying on the report of another Judicial Magistrate in an enquiry under section 202 of the Code. 3. While the petitioner was continuing as the Deputy Superintendent of Police at Bolangir, there were some public agitations in the town in September, 1980, and as the Deputy Superintendent of Police, the petitioner was taking active part in maintenance of law and order in the town. The two complainants are the leading persons of the town and station diary entries of the police station reveal that they were fomenting the public agitation. Large number of station diary entries appear to have been made against the two complainants along with others to the effect that they were taking active part in instigating the agitation as well as taking initiative for release of persons those who were being arrested in connection with the said agitation. The station diary entry No. 440 recorded at 11.30 a.m. dated 12-11-1980 indicates that on coming to know that some persons would be released on bail, the complainants were instigating one Mohan Gopal Panda to arrange a procession so that they would break the prohibitory order which had been issued under section 144 of the Code and would terrorise the business people against whom the agitation was mainly intended. The petitioner as Deputy Superintendent of Police along with one Magistrate Sri S.B. Kar was moving from place to place to prevent lawlessness on the day. The petitioner as Deputy Superintendent of Police along with one Magistrate Sri S.B. Kar was moving from place to place to prevent lawlessness on the day. The subsequent entries in the station diary made at 5.30 p.m. and 6.30 p.m. also indicate that on account of prohibitory order having been violated, some persons have been arrested and police had also arrested some people under section 151 of the Code and further those entries indicate that both the complainants were involved in the incident that happened on that day. 4. Complainant Ramesh Sahu (opposite party in Criminal Misc. Case No. 375 of 1982) filed the complaint on 14-11-1980 alleging commission of offence by the petitioner on 12-11-1980 between 5 p.m. and 10.30 p.m. at the Sadar Police Station, Bolangir, under sections 342, 500 and 506 of the Indian Penal Code, which was registered as ICC Case No. 109 of 1980. This complainant was an advocate of the local Bar. Complainant Prafulla Kumar Mohanty (opposite party in Criminal Misc. Case No. 39 of 1984) also filed the complaint on 14-11-1980 alleging commission of offence by the petitioner on the very day, i.e. on 12-11-1980 at 5 p.m. at Sadar Police Station, Bolangir, under sections 342 and 500, Indian Penal Code, which was registered as ICC Case No. 108 of 1980. After getting the initial statement of the complainant recorded, the Magistrate directed an enquiry to be conducted under section 202 of the Code and on 23-10-1981, in both the complaint cases, the Sub-Divisional Judicial Magistrate directed that the enquiry under section 202 of the Code should be conducted by a Judicial Magistrate, First Class. Thereafter on receiving the report of enquiry from the Judicial Magistrate, First Class, the Chief Judicial Magistrate, Bolangir, took cognisance of the offences under sections 342 and 500, Indian Penal Code against the petitioner on 31-3-1982 in Complaint Case ICC No. 109 of 1980 and on 13-8-1982 in Complaint Case ICC No. 108 of 1980. Thereafter on summons being issued to the petitioner in both the cases to appear in the Court, the present applications have been filed with the prayer, as stated earlier. 5. Mr. Thereafter on summons being issued to the petitioner in both the cases to appear in the Court, the present applications have been filed with the prayer, as stated earlier. 5. Mr. Misra, the learned counsel for the petitioner raises two submissions in support of his prayer for quashing of cognisance and for quashing the criminal proceedings :- (i) The petitioner being a Deputy Superintendent of Police and thereby a public servant not removable from his office save by or with the sanction of the Government and the offences alleged in the complaint petitions being committed by him while acting or purporting to act in discharge of his official duty, the Magistrate had no jurisdiction to take cognisance without a valid sanction from the State Government, as required under section 197(1)(b) of the Code ; and (ii) The order taking cognisance of the offences is also bad in law since the same is based upon the report of an enquiry made by another Judicial Magistrate, First Class, since a Magistrate exercising his powers under section 202 of the Code has no jurisdiction to direct an enquiry to be made by another Magistrate, as decided by this Court in the case of Omprakash Sahu v. Manmohan Mohanty and another (1984) 57 C.L.T. 355 . Mr. Swain appearing for the complainant-opposite party (in Cr. Misc. 375 of 1982), however, contends that the allegations made against the petitioner in the complaint petition cannot be attributable to acts said to have been committed in discharge of the official duty of the petitioner and, therefore, section 197 of the Code has no application. On the second question raised by Mr. Misra, however, Mr. Swain excepting contending on first principles that the decision in question is not good law, was not in a position to challenge the correctness of the decision of this Court in Omprakash Sahu's case (1984) 57 C.L.T. 355 . 6. I would first take up the question whether in the facts and circumstances of the case, section 197 of the Code has any application or not. There is no dispute that the petitioner was a public servant and not removable from his office save by or with the sanction of the Government. 6. I would first take up the question whether in the facts and circumstances of the case, section 197 of the Code has any application or not. There is no dispute that the petitioner was a public servant and not removable from his office save by or with the sanction of the Government. The only question which requires consideration, therefore, is whether the offences alleged against him in the complaint petitions can be said to have been committed by him either acting or purporting to act in discharge of his official duty. The object of section 197 of the Code is to guard against vexatious proceedings against public servants and to secure the well-considered opinion of the superior authority before a prosecution is launched against them. To find out as to what is the true and correct meaning of the phrase "acting or purporting to act in the discharge of his official duty", Courts have considered different situations and no hard and fast rule has been laid down. It would essentially depend upon the facts and circumstances of each case. But there has been a unanimity of judicial authorities to the effect that if there is a coherent nexus between the act complained of as an offence and the duty of the public servant, sanction becomes necessary even if such act is in excess of his exact duty. In one of the earliest cases of Shree Kantiah Ramayya Munipalli and another v. State of Bombay AIR 1955 S.C. 287 , the Supreme Court has held that section 197 of the Code if construed too narrowly can never be applied, for, of course, it is no part of an officials duty to commit an offence and never can be. This Court in the case of Mulsankar Ojha v. Sri Bhagaban Misra and another (1970) 36 C.L.T. 873 , held : - "In the first place, the policy of the Legislature is to afford reasonable protection to public servants acting or purporting to act in the discharge of their duties and in the second place, this protection has certain limits and can only be claimed in the circumstances where the acts complained against and alleged to have been done by the public servants are reasonably connected with the discharge of their official duties and are not merely a cloak for doing the objectionable act. The circumstance that while so acting, the public servants acted in excess of their duty will not be a sufficient ground for deprivation of such protection so long as there is a reasonable connection between the impugned act and the performance of the official duties. Lastly, whether a particular act can be said to be done in the exercise of official duty or in the purported exercise of such duty is essentially and substantially a question which will have to be determined on the facts and circumstances of each case and it is neither easy nor possible to lay down any hard and fast formula for the ascertainment of this question." The learned Judge in the aforesaid case placed reliance on the decisions of the Supreme Court in the case of Amrik Singh v. State of Pepsu AIR 1955 S.C. 309 , and in the case of Matajog Dubey v. H.C. Bhari AIR 1956 S.C. 44 . In the case of State v. Baidyanath Patnaik and others I.L.R. 1972 Cutt. 817, this Court came to hold : - "....All the allegations against the Vigilance staff are directly connected with and intimately related to the said trap, and it can be said without any hesitation that the complained of acts, if at all committed, were directly concerned with the discharge of the official duties of the Vigilance Officers and were done by virtue of their office. That being so, it is not to be seen at this stage if the complained of acts were in fact done in proper discharge of the official duties or not, that is a matter which has to be examined at the trial, after sanction for the same is obtained from the proper authorities. (Amrik Singh's case). Moreover, it cannot be said that sanction is not necessary as the said acts exceeded what was strictly necessary for the discharge of the official duty, for this question would arise only at a later stage when the trial proceeds on the merits, after sanction is accorded for the same. No question of sanction can arise under Section 197, unless the acts complained of are offences. No question of sanction can arise under Section 197, unless the acts complained of are offences. So even if it is said or prima facie shown that the Vigilance Officers in performing their duty did something which was in excess of the needs or requirements of the situation, still, on the facts and circumstances of this case, sanction under Section 197, Criminal Procedure Code, will be required to prosecute these Vigilance Officers." To the same effect are the decisions of this Court in the case of Rajkishore Modi v. State of Orissa (1973) 39 C.L.T. 82 and in the case of Akhoy Kumar Mohapatra v. Balaram Sahu and 20 others (1973) 39 C.L.T. 1062 . I do not think it necessary to multiply the authorities on the point. Applying the tests laid down in the aforesaid cases to the allegations made in the complaint petitions and looking at the several station diary entries made at Sadar Police Station on 12-11-1980, there cannot be any manner or doubt that the act complained of against the petitioner must be held to have been committed in course of his official duty as a Deputy Superintendent of Police, who was engaged in maintenance of law and order. The sum and substance of the allegations made in the complaint petitions is that when some persons had been arrested and were in the police lock-up at the police station, complainant Prafulla Kumar Mohanty (in I.C.C. 108 of 1980) and complainant Ramesh Sahu (in I.C.C. 109 of 1980) wanted to get the signatures of the arrested persons on vakalatanama and the petitioner who was present at the police station did not allow them to take the signatures. The further allegation against the petitioner is that when Mohan Gopal Panda, a student leader, protested against the action of the petitioner, the petitioner forced him into his jeep, but later on released him and the main allegation against the petitioner is, as contained in paragraph-9 of the complaint petition (in I.C.C. 109 of 1980), to the effect that the petitioner was present at the police station and when the bail order was produced, he did not allow the complainants to talk to the Officer-in-charge, but he himself read the order and in an angry mood expressed that he would not release Sri Panda on bail, to which the complainants protested and then the accused lost his temper and hurled abusive words and also arrested them. The petitioner was the Deputy Superintendent of Police and he was present inside the police station, when, as alleged in the complaint petition, the complainants reached the police station. He as the superior officer discussed the matter with the complainants and his not allowing the complainants to talk to the Officer-in-charge, right or wrong must be held to be in discharge of his official duty. Further, the allegation that he arrested the complainants also cannot indicate that the same was not done in discharge of the official duty, on the ground that such arrest was not warranted under the circumstances. The acts complained against in the complaint petition cannot but be said to have been committed exercise of official duty of the petitioner. The only other allegation in the complaint petition is that the petitioner hurled abusive words. This allegation is rather too vague and is closely inter-woven with the act of arrest of the complainants. Reading the complaint petitions on the whole, I am of the opinion that the acts complained against the petitioner must be held to be acts in discharge of the official duty of the petitioner as the Deputy Superintend of Police who was in charge of law and order attracting the provisions of section 197 of the Code and admittedly no sanction having been obtained, the order taking cognisance is bad in law. 7. Mr. 7. Mr. Swain, the learned counsel for the opposite party, however, places reliance on the decision of the Supreme Court in the case of Pukhraj v. State of Rajasthan and another AIR 1973 S.C. 2591 , and contends that the acts complained against in the present case do not attract the provision of section 197 of the Code. The said submission of Mr. Swain is wholly untenable. Even in the above reported decision, Alagiriswami, J. after taking note of the decision in the case of Hori Ram Singh v. Emperor AIR 1939 Federal Court 43 and the decision in the case of Bhagwan Pd. Srivastava v. N.P. Misra AIR 1970 S.C. 1661 held : - "....While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. 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 he 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, 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. 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 his 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 for 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. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel for 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 'professed exercise of office' may not always be appropriate to describe or delimit the scope of the 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. .........." Their Lordships in this case also quoted with approval a passage from Matajog Dube's case. In my opinion this decision does not support in any way the opposite parties since applying the principles laid down therein also, it cannot be said that the acts complained against the petitioner were purely committed by him in his private capacity. Accordingly, there is no force in the submission of Mr. Swain for the opposite party. 8. So far as the second submission of Mr. Misra is concerned, I also find sufficient force in the said contention, since the decision of this Court in Omprakash Sahu's case (1984) 57 C.L.T. 355 , applies with full force to this case. On that ground also, the order taking cognisance on the basis of an enquiry report submitted by another Judicial Magistrate must be held to be bad in law. 9. Both the submissions of Mr. Misra, therefore, must be upheld and the cognisance taken by the learned Magistrate on 31-3-1982 in I.C.C. Case No. 109 of 1980 and on 13-8-1982 in I.C.C. Case No. 108 of 1980 must be held to be bad in law. I, therefore, set aside the said orders in both the cases. In the result, therefore, both the criminal miscellaneous cases are allowed. Final Result : Allowed