JUDGMENT 1. - Learned Sessions Judge, Tonk vide his order dated March 25, 1985, ordered framing of charges under sections 147, 436, 325, 323 read with 149 IPC against the accused petitioners. Thereafter, the charges have been framed against the accused petitioners. The accused-petitioners pray that the charges be set aside and the proceedings be quashed against them. 2. Now the facts. There is some land situated at Jhilai Road, Niwai which is vested in Municipal Board. Niwai. Some persons belonging to Bairwa caste had encroached on the said land and had constructed huts in which they were residing along with the members of their family. A report was submitted by one Lallu Lal Sharma an employee of the Municipal Board, Niwai to the Executive Officer of the said Board on December 18, 1982 (Ex. D. 2) that in the night intervening 17th and 19th December, 1982 at about 2 or 2.30 a.m. some persons have encroached on the land referred to earlier by constructing their huts. Their encroachment had been removed once but thereafter they again encroached and it was also mentioned in the report that they were bent on a quarrel. The names of those persons who had encroached by raising their huts were also mentioned in the Ex. D. 2 as Chand and others, in all numbering nine. 3. Another report was submitted by the Circle Jamadar of the Board to the Executive Officer on 19th December, 1982 to the same effect and Executive Officer after taking the report of the concerned officers, placed the papers before the Chairman of the Municipal Board who on 20th December, 1982, ordered that the encroachments should be removed from municipal land. Thereafter, a notice Ex.D. 4 dated 20th December, 1982 was issued to Nathu and others under sub-section (2) of Section 203 of the Rajasthan Municipalities Act, 1959 calling upon them to vacate their encroachment by 12 Noon on 21st December, 1982 failing which the encroachments shall be removed in accordance with law. It was reported by the Process Server that the trespassers had refused to take notices. It was reported by the Process Server that the trespassers had refused to take notices. Thereafter, the Chairman, Municipal Board, Niwai requested the SHO, PS Niwai for extending police help, vide Ex D-5 dated December 20, 1982 and police help was accorded and vide order dated 23rd December, 1982 the Chairman, Municipal Board, Niwai ordered that Ramlal Sharma, Executive Officer along with Inspector Murlidhar, ASI Abdui Latif, Asstt. Revenue Inspector Kureshi, LDC, Rameshwar Prasad, Shrovanlal Jamadar and Chotu Jamadar will remove the encroachments with the help of Harijan staff. Thereafter, vide Ex.D. 10 dated December 23, 1982, the Chairman further ordered that the octroi staff shall also help the other staff in removing the encroachments. Vide Ex. D.II, the Executive Officer, Municipal Board deputed the persons named therein to go to the spot and remove the encroachments. 4. On 23rd December, 1982, the Municipal staff which included many of the accused persons, went to the spot and removed the encroachments. In the said exercise, some persons on behalf of the encroachers received injuries as well as on behalf of the Municipal Board many including some of the accused persons received injuries. 5. Two reports were filed in P. S. Niwai, one by Pratay Bairwa on 23rd December, 1982 in which the accused petitioners were named and it was stated that the persons belonging to Bairwa caste were in possession of the land in dispute for about 3/4 years though they were all trespassers. It was further mentioned therein that the accused persons and others caused injuries to them, set fire to their houses and also took away their belongings. On this report, of Shri Pratap and FIR No. 163/82 was registered Another report was filed by Shri Ramlal. Executive Officer, Municipal Board Niwai on the same day wherein it was stated that when the municipal staff under the orders of the Chairman in the discharge of their official duties, removed, the encroachments from the municipal land, then, Chanda and others in all 13 persons named in the FIR caused injuries to Murlidhar Sharma and others. A case under section 147, 447 and 323 IPC was registered which was numbered as 164/82. In that incident, on behalf of the Bairwa community, persons who received injuries are Ambalal, Shankarlal, Gulab Chand, Chesilal, Ramdev, Chitarlal, Mst. Bhurji, Mst. Dhanni, Mst Bacchi, Mst. Kesar wife of Kastura and Mst. Kesar wife of Bhura, Mst. A case under section 147, 447 and 323 IPC was registered which was numbered as 164/82. In that incident, on behalf of the Bairwa community, persons who received injuries are Ambalal, Shankarlal, Gulab Chand, Chesilal, Ramdev, Chitarlal, Mst. Bhurji, Mst. Dhanni, Mst Bacchi, Mst. Kesar wife of Kastura and Mst. Kesar wife of Bhura, Mst. Manni wife of Chhitar, Smt. Ramkanya, Smt. Javana, Smt. Gulab Smt. Manbhar wife of Ratan. Smt, Ganga each of whom received as many as 3.4, 1,1,1.1, 2 injuries respectively. All these injuries were simple. On behalf of the accused persons, as appears from the FIR lodged by Shri Ramlal, an employee of the Board, 8 persons are said to have received injuries, all simple. 6. The investigation of the case, FIR No. 163/82 was first done by Moolchand SHO and he recommended filing of the charge-sheet against the accused petitioners. Later on, the investigation of the case was taken over by the Addl. SP, CID Jaipur and he recorded the statements of some of the witnesses u/s 161 Cr. P C as appears from a perusal of the case diary, dated 2.2.84 and he recommended filing of the report u/s 169 Cr.P.C. But later on charge-sheet was filed against the accused-persons. 7. The accused persons were committed to the court of learned Sessions Judge, before whom it was argued on behalf of the accused petitioners that the offence is alleged to have been committed by them while acting or purporting act in the discharge of their official duties, therefore, cognizance of the offences should not be taken against them without the previous sanction of the appointing authority. Sessions Judge, in the impugned order held that though the purpose for which the accused persons had gone i.e. for removing the encroachment; from the municipal land, was lawful, but at the spot, the accused persons became members of the unlawful assembly when they gave beating to the persons belonging to Bairwa community and they also set fire to the houses. He therefore, refused to extend the benefit of section 197 Cr. C.P. to the accused and as stated earlier framed charges against the accused persons. 8. The contention of the learned counsel for the petitioners is that the Sessions Judge has not taken into consideration the various documents Ex. D. 1 to Ex. He therefore, refused to extend the benefit of section 197 Cr. C.P. to the accused and as stated earlier framed charges against the accused persons. 8. The contention of the learned counsel for the petitioners is that the Sessions Judge has not taken into consideration the various documents Ex. D. 1 to Ex. D. 16 which have been filed in the case and all of which had been admitted by the PP. The documents therefore, being admitted documents they require no proof. He contends that from the perusal of those documents it becomes clear that the persons belonging to the Bairwa community had encroached on municipal land by constructing their houses. According to him, there may be dispute as to whether the encroachments were recent or as old as according to the Municipal Board, the encroachments had been made only a few days earlier, whereas according to the FIR lodged by Pratap, they were in possession for the last 3-4 years. Be that as it may, even in the FIR No. 163/82, it has been mentioned by Pratap that they are in unauthorised possession of land. Under section 203 of the Act, none can encroach on the municipal land in a place which had become a municipal land. Under sub-sec (2) of Section 3 of the Act, the Board has power to remove any obstruction or encroachment. In the instant case, the land in question vested in the Board and as such, the Board was authorised to remove the encroachments under sub-section (2) of Section 203 of the Act. Sessions Judge himself has observed that such a right vested in the Board and that when the accused persons along with other staff of the Municipal Board went to the spot to remove the encroachments, their object was lawful. But according to the learned Sessions Judge, the accused persons and others became members of an unlawful assembly the moment they gave beating to the members belonging to the Bairwa community and set fire to their houses. I will later on deal with the evidence recorded under section 161 Cr. P. C. on the question as to whether it has been stated by any of the witnesses that who from among the petitioners set fire to the house. I will later on deal with the evidence recorded under section 161 Cr. P. C. on the question as to whether it has been stated by any of the witnesses that who from among the petitioners set fire to the house. Suffice it to say for the present that the accused persons had gone to the sport to remove the encroachments under the orders of the Chairman, Municipal Board. Under section 197 of the Code of Criminal Procedure if a public servant removable from his office by the sanction of the Governor is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no court shall take cognizance except with the previous sanction in the case of a person employed in connection with the affairs of the State. Executive Officer is removable by the State Government. 9. In Ramchand Sanghvi v. Bibhuti Bhushan Chakravarty, AIR 1965 SC 588 , it has been held that it is true that for considering whether section 197 Cr. P. C. would apply the court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. It has further been held that if the matter is within the discretion of the public servant and while exercising that discretion he has acted illegally in case of a bail by saying that the bail would not be granted unless he did something which he was not bound to do, the public servant cannot be said to have acted otherwise than in his capacity as a public servant. In Prabhudayal v. Milap Chand, AIR 1959 Rajasthan 12 , a Sarpanch who was held to be a Judge within the meaning of the term under section 19 of the Indian Penal Code asked a person to get out of the court room. In Prabhudayal v. Milap Chand, AIR 1959 Rajasthan 12 , a Sarpanch who was held to be a Judge within the meaning of the term under section 19 of the Indian Penal Code asked a person to get out of the court room. It was held that the Sarpanch purported to act in the discharge of his official duty when he asked that person to get out of the court room, though a court is not entitled to use objectionable language It may be that particular language used by the court amounts to an offence but merely because the offence appears to have been committed by the Judge, the protection under section 197 Cr. P. C. cannot be taken away, if the offence has been committed by the Judge purporting to act in the discharge of his official duty. In taking the aforesaid view, this Court in Piabhudayals case (supra) placed reliance on Motajog Dobey v. H.C. Bhari, AIR 1956 SC 44 . In Mangha Ram v. State and others, 1955 (2) Cr L. J 681 this Court was dealing with a case of removal of encroachments under section 203 of the Municipalities Act by its employees, the Administrator and Commissioner of the Municipal Council in pursuance of the order of the Administrator, that the unauthorised structure should be removed. The act complained of is said to have been done on behalf of the Administrator and Commissioner of the Municipal Council by the employees and the compliance report was submitted that the unauthorised structure over-hanging on the street land at the chabutara has been removed. It was held in para No. 8 that the acts were done in the discharge of the official duty and therefore the accused were entitled to protection of S 197 Cr. P.C. In another case of this Court Hari Ram v. B.P. Sood, Rlw 1956 page 279 , it has been held that the policy of the legislature is to afford reasonable protection to public servants acting or purporting to act in the discharge of their duties. 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. 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. It has been further held that the circumstances that while so acting, the public servants acted in excess of their duty will not be sufficient ground for deprivation of such protection so long as there is reasonable connection between the impugned act and the performance of the official duties, and whether a particular act can be said to be done in the exercise of the 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. 10. It will therefore be clear that if a particular act ascribed to a public servant can be said to be done in the exercise of his official duty or in purported exercise of such duty and merely because there has been some excess in the discharge of the duties, a public servant, cannot be deprived of protection under section 197 Cr. P. C. The question is whether the other accused who asked under his orders and directions are also entitled to such a protection This court in Jeewa Ram and ors. v. Madanial and another, 1985 RLR 588 , in a case of complaint against the administrator of municipal council, City Magistrate, Overseer of the UIT has taken a view that if the sanction for prosecuting the administrator, city magistrate is necessary, no cognizance could be taken against them. Other persons acting under their directions can also not be prosecuted and in these circumstances no question of prosecuting them arises. In the instant case there is no dispute that all the accused-petitioners are employees of Municipal Board Niwai. They had gone to the spot under the orders of the Chairman of the Municipal Board to remove the encroachments under section 203 of the Act. In the instant case there is no dispute that all the accused-petitioners are employees of Municipal Board Niwai. They had gone to the spot under the orders of the Chairman of the Municipal Board to remove the encroachments under section 203 of the Act. Even the learned Sessions Judge in the impugned order has held that all the accused persons had gone under the orders of the Municipal Board to remove the encroachments but they had no right to give beating or setting fire to the huts and other properties of those who encroached over the municipal land. He also observed that initially the accused persons were not the members of an unlawful assembly, but no sooner during the process of removing the unauthorised construction they started beating and setting fire to the huts, they became the members of an unlawful assembly, and therefore committed offence. It may be stated that the Chairman of the Municipal Board has power to remove the encroachment and the accused-petitioners went to spot to remove the encroachments, it can be said that they were acting or purporting to act in the discharge of their official duty. Under section 76 of the Indian Penal Code nothing is an offence which is done by a person who is or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be bound by law to do it. Under illustration (a) to that section, `A, a soldier fires on a mob by the order of his superior officer, in conformity with the commands of the law. `A' has committed no offence. For an offence under the Indian Penal Code, there should be mens rea. Even in other acts there must be mens rea, unless the same is excluded either expressly or impliedly. Therefore, if employees of the Municipal Board under the orders of the Chairman or Administrator or Commissioner of the Municipal Board go to remove the encroachment under section 203 of the Act, it cannot be said that they intended to commit any offence. In the instant case, the employees of the Municipal Board also received injuries as stated earlier and a cross-case was filed. From the perusal of the statements under section 161 Cr. In the instant case, the employees of the Municipal Board also received injuries as stated earlier and a cross-case was filed. From the perusal of the statements under section 161 Cr. P. C., it cannot be said as to who from amongst the accused-petitioners set fire to the huts which were raised by the complainants and other persons belonging to their community and even the learned Judge observed that the accused-petitioners gone to remove the encroachments and their act was not an illegal act. There is no material that any of the accused-petitioners gave beating to any one or set fire to their huts. Thus, the accused-petitioners cannot be said to have been responsible and it cannot be said that they exceeded their authority with they had to remove the encroachment. In my opinion, therefore, the accused petitioners, who had gone to remove the encroachments under the orders of the Chairman and Administrator of the Municipal Board, cannot be held responsible for any act alleged to have been done by them, even if in performing their duty and removing the encroachments, reasonable force was used by them. So far as setting fire to the huts, it cannot be said from any of the witnesses, that any of the accused petitioners is responsible for the same. 11. Consequently, I allow this revision petition, set aside the order dated March 25, 1985 of the learned Sessions Judge, Tonk under which he framed charges against the accused-petitioners and discharge the accused-petitioners from the charges levelled against them.Revision allowed. *******