Judgment Anand Prasad Sinha, J. 1. This application is for quashing of a criminal case being Case No. C-141 of 1980 pending in the court of the Chief Judicial Magistrate, Gopalganj under Sections 469 and 500 of the Indian Penal Code. 2. Opposite Party No. 1 had filed a complaint on 4-3-1980 naming the petitioner as an accused and also one Ram Chandra Prasad Varma, Assistant Marketing Officer. It had been alleged that the complainant-opposite party No. 1 happened to be a respectable citizen. He has got respect in the society. In addition of cultivation, he has got other business also. He is also a successful politician and the supporter of Smt. Indira Gandhi. In the last election for Parliament he had tremendously worked and on account of his work only the Congress candidate could be elected. Since thereafter, the petitioner, who happened to be the Sub-Divisional Magistrate at the relevant point of time had become vindictive against him. Accordingly, he was bent upon damaging the complainant-opposite party No. 1 and also his business. On 25-2-1980 sufficient stock of diesel oil had arrived at Gopalganj, but motivated the petitioner had not allotted any such diesel to the complainant. Accordingly, on 29-2-1980 the complainant telephoned to the petitioner at about 10 A. M. and had made a grievance for the same. The petitioner had stated that such things cannot be talked on telephone and further asked him to come in his office. At about 2 P. M. the complainant went to the office of the petitioner after obtaining due permission for the same. He had asked the petitioner as to why his attitude towards him was so stiff and unjustified. The moment the complainant had started talk with the petitioner, the petitioner had told the complainant that why he had approached the District Collector and had made a grievance against him. Thereupon the complainant had stated that he had not made a grievance against him to the Collector but he had simply put forward his difficulties to the Collector. Thereupon the petitioner had told the complainant that he happened to be the Congress (I) supporter and they had made Smt. Indira Gandhi Prime Minister and, therefore, the complainant should ask Smt. Indira Gandhi as to why the diesel was not being made available. Thereupon the petitioner had told the complainant that he happened to be the Congress (I) supporter and they had made Smt. Indira Gandhi Prime Minister and, therefore, the complainant should ask Smt. Indira Gandhi as to why the diesel was not being made available. The complainant thereafter stated that after all Smt. Indira Gandhi would not come to distribute Diesel oil and for that purpose the petitioner has been appointed and further the complainant had told him that he should not unnecessarily drag the name of Smt. Indira Gendhi. Thereafter, the petitioner became furious and told the complainant that he was a "big smuggler". He indulges in smuggling. He "loots people". The petitioner threatened him that he would be completely destroyed. The complainant had told the petitioner that law has not authorised him to hurl abuses and, therefore, he should refrain from doing the same. The petitioner thereafter told him that now he would teach him lesson. Simultaneously he disclosed that the complainant was arrested and he would not go out from that place Thus the complainant was confined illegally and was made to sit in his office. The petitioner had telephoned to the Officer In charge of Gopalganj police station and asked him to come with arm force. Soon thereafter the Officer In charge with 7-8 armed police had come into the office of the petitioner. The petitioner had told the Officer In charge that he should arrest the complainant. On this order, the Officer incharge Gopalganj took away the complainant to the Gopalganj police station and detained him for several hours A mob of several persons had collected. The Officer In charge had telephoned to the petitioner that no report under Sec.353 of the Indian Penal Code had been sent. Ultimately, when report had reached, the complainant opposite party No. 1 had been released from the custody. It appears that earlier the petitioner had gone to his house. He had called accused No. 2 (Marketing Officer). Further the complainant claims that he had learnt that after talk in between the two and out of conspiracy the Marketing Officer (accused No. 2) on the pressure of the petitioner fabricated a false case. Further the assertion is that Sri Nagina Rai, M. P. had taken out a big procession protesting against the arrest of the complainant. Further the complainant claims that he had learnt that after talk in between the two and out of conspiracy the Marketing Officer (accused No. 2) on the pressure of the petitioner fabricated a false case. Further the assertion is that Sri Nagina Rai, M. P. had taken out a big procession protesting against the arrest of the complainant. Consequently, as stated above, the complainant had been released at about 4.30 P.M. The allegation is that the petitioner and accused no. 2 had cooked up a false case against him. 3. It appears that the complaint had been enquired into under Sec.202 of the Code of Criminal Procedure and ultimately cognizance has been taken for the offence under Sec. 500 of the Indian Penal Code and processes have been issued against the petitioner and the Marketing Officer. 4. A counter affidavit has also been filed on behalf of the complainant resisting claim and the facts made out for quashing of the impugned order of cognizance and the criminal prosecution. 5. From the facts mentioned in the complaint petition, it appears to be an admitted fact of the complainant that he had gone to the office of the petitioner, who was the Sub-divisional Magistrate at the relevant point of time and from the nature of the work it appears that he had official work as he wanted to make some grievance regarding the fact as to why the diesel oil had not been allotted to him for his buses. Further from the statements made in the complaint petition itself it appears that whatever talk he had with the petitioner, that was in the office of the petitioner. The complainant had been arrested in the office of the petitioner. In addition, the complainant in his complaint petition has mentioned all the talks which had occurred in between him and the petitioner. Even ignoring as to whether the talks and statements made by the petitioner as claimed by the complainant can be said to be such presentable that may be accepted or not and further as to whether the sentences used by the petitioner can be said to be such sentences which normally is expected of a responsible officer like the Petitioner, no such statement, as stated by the complainant, can be said to be such which may be termed a conduct cognizable as an offence under the Indian Penal Code. Moreover, even the statement attributed against the petitioner that he had told the complainant that he used to toot people, that can well be said to be a statement which an administrator is entitled to utter if there be occasion for such utterances. Therefore, I have no hesitation in saying that none of the utterances by the petitioner can be said to have traveled beyond the realm of such utterances which could not have been uttered in course of the discharge of official duty in the existing facts and circumstances of the case. 6. I would like to discuss specifically as to whether "a big smuggler" in fact, had been uttered by the petitioner and even if uttered so, in the facts and circumstances, whether it is such inseparable conduct in discharge of the official duty of the petitioner that any grievance made will be subject to application of Sec.197 of ,the Code of Criminal Procedure (hereinafter to be referred to as the Code). 7. In order to appreciate this aspect of the case, it has to be considered that according to the complainant he had been arrested in a case as to whether that case was a cooked up or fabricated, that will not affect the existing fact that his arrest was on the basis of a criminal case. Further it appears that the complainant had a Diesel pump and there was a great agitation and tension on account of certain conduct by which it was apparent that the diesel was not being supplied to the cultivators and used to be utilised by the complainant who had a fleet of buses. Annexure-1 is a report from the Inspector, Mirganj Police station to the petitioner intimating that a big demonstration was in offing consisting of Janta Party, Lok Dal, Communist party of India, CPI (M) and Congress against the shortage of Diesel and the electricity, This is dated 23-2-1980, A copy of the pamphlet had also been annexed by which it appears that on account of non-supply of diesel and also by the arbitrary attitude of the diesel pump owners a joint demonstration was to be held. From the pamphlet it appears that the name of the complainant had been mentioned as the person who indulged into black marketing of diesel oil being owner of a diesel pump. From the pamphlet it appears that the name of the complainant had been mentioned as the person who indulged into black marketing of diesel oil being owner of a diesel pump. Annexure 2 is a letter from accused No. 2 to the Officer In charge of Gopalganj police station indicating breach of law found in conducting the business of diesel oil by the complainant after due verification and examination of registers, documents and other connected papers. Accordingly, it had been recommended for institution of a case under Section 7 of the Essential Commodities Act. 8. Therefore, from the facts stated above, it appears that an explosive situation had occurred in the sub-division of which the petitioner happened to be the Magistrate and further it appears that the complainant had been named specifically as the person who had indulged into black marketing and thus creating scarcity of diesel for cultivator and the public at large had decided to hold a combined demonstration of practically of all the political parties. It also appears that the documents, registers and connected papers of the petrol pump of the complainant had been verified by accused no 2 and after finding that illegalities have been committed, there was a recommendation for prosecution under Section 7 of the Essential Commodities Act. 9. Therefore, it appears that the facts disclosed by the complainant in his complaint petition run close parallel to the facts that definitely the petitioner, who had acted in discharge of official duty by entering into reciprocal relationship with the complainant had also faced with an acute problem of law and order, if not much nearing the element of public order. 10. To me it appears that in such cases, at the time of taking cognizance after an enquiry under Sec.202 of the Code, it becomes a matter of active consideration as held in a decision of this Court in the case of Madan Singh V/s. P.K. Basuk and Ors., 1982 0 BBCJ 7 . that the enquiry is not for taking cognizance but for taking decision as to whether cognizance be taken or not. that the enquiry is not for taking cognizance but for taking decision as to whether cognizance be taken or not. If this principle is accepted, then definitely, a court becomes entitled to look into as to whether the allegations attributed can be said to be consistent with the education, status, position and nature of post held by the person against whom the allegations of utterances of some words termed to be defamatory or derogatory have been made. I do not mean to say that such utterances can never be made but definitely one has to find out as to whether it could have been made or not by putting the utterances at the state of least resistance. In the instant case, there is an allegation against the Sub-divisional Magistrate of Indian Administrative Services that he had stated certain words which is directly against the functioning of the Government and, therefore, it is for consideration of the Magistrate as to whether it can be said to be a presentable allegation and is acceptable. It has been held by a decision of the Supreme Court in the case of S.B. Saha and Ors. V/s. M.S. Kochar -- that while adjudicating the question of sanction under Sec.197 of the Code, the Court is not to confine with the allegations in the complaint petition but all the materials on record. Further applying the law laid down in case of Matajog Dobey V/s. H.C. Bhari -- the Court is permitted to see that there must be a reasonable connection between the act and the discharge of official duty. It does not matter even if the act needs what is strictly necessary for the discharge of the official duty. The entire relationship between the act and official duty is a relevant fact and further the performance of official duty in excess of the needs and requirements of the situation is also a relevant fact for consideration. In the decision of the Supreme Court in the case of Baijnath V/s. State of Madhya Pradesh -- it has been laid down "it is the quality of the act that is important, and if it falls within the scope or range of official duty, the protection as contemplated under Sec.197 of the Code will be attracted. 11. In the decision of the Supreme Court in the case of Baijnath V/s. State of Madhya Pradesh -- it has been laid down "it is the quality of the act that is important, and if it falls within the scope or range of official duty, the protection as contemplated under Sec.197 of the Code will be attracted. 11. Learned Counsel for the Opposite Party has relied upon a decision of the Supreme Court in the case of B.S. Sambhu V/s. T.S. Krishnaswamy -- which is distinguishable from the facts of the present case. In the reported case, appellant B.S. Sambhu who was functioning as a Munsif had been called upon to submit a report on a transfer petition for transferring of certain cases from his court filed by the respondent of that case T.S. Krishnaswamy and while writing down the report the Munsif had stated that it was brought to his notice that T.S. Krishnaswamy was a big gambler and was a rowdy also and also the Munsif prayed for the safeguard from such mischievous elements and that was termed to be not protected under Sec.197 of the Code. This will indicate that the appellant was simply a Munsiff and submission of the report cannot be said to be strictly in discharge of the official duty but it was an individual such act as he could have submitted the report or could not have submitted the report, but in the instant case it appears that the entire conduct attributed to the petitioner was in course of official duty and the utterances made were now it appears in context with the explosive situation giving rise to a problem of law and order and that had to be strictly faced by the petitioner by virtue of the fact that he happened to be the Sub-divisional Magistrate. Further it indicates that, in fact, a substantial criminal case has been filed for an economic offence being under Section 7 of the Essential Commodities Act and the offence having been committed by the complainant was closely related with such conduct which need controlled by the petitioner but giving rise to wider complications falling fully within the jurisdiction of the petitioner. 12. 12. The word "smuggler" cannot and should not be construed that that meaning generally used for persons indulging into smuggling but when this word is read with reference to the context of the situation under which the petitioner was to act as a public servant, it appears that there was an occasion for the petitioner to check deviation and misdirection of the diesel directly attributed against the complainant and giving rise to both a problem of law and order and penal offence. Since there is a prosecution under Section 7 of the Essential Commodities Act, prima face, it appears that there was an occasion to strictly deal with the situation and if under that the Sub-Divisional Magistrate had directed and uttered a few words expressing disapproval of the conduct of the complainant which cannot be said to be either un-appropriate or un-justified, strictly considering the facts and circumstances of the case. 13. While a public servant acts according to the call of the situation for maintaining law and order, there is a point to highlight both in his conduct and talk here and there according to the call of the duty and if any conduct objected to is in such continuation inseparable and inter-mixed with the discharge of public duty definitely that public servant is protected against the prosecution under Sec.197 of the Code. 14. Accordingly, in the facts and circumstances of the case, the sanction under Sec.197 of the Code was necessary and in absence of that the instant criminal prosecution is invalid. Accordingly, the criminal case in question is hereby quashed and this application is allowed.