MUKUL GOPAL MUKHERJI, J. ( 1 ) IN. the present Rule the complainant petitioner impugns in revision an order, dated 18. 5. 87 whereby the learned Sub-divisional Judicial Magistrate, Chandernagore discharged the accused opposite parties Nos. 1 to 9 of a charge under section 506 I. P. C. in C. R. Case No. 319/83 previously numbered as G. R. 546/80. ( 2 ) PURSUANT to a First Information Report lodged at Tarakeswar Police Station by the Petitioner who was a J. L. R. O. of Pursurah at Champadanga over an incident that took place on 16. 6. 80 police registered Tarakeswar Police Station Case No. 14, dated 17. 6. 80 and on 9. 2. 82 submitted a report under Section 173 Cr. P. C. disclosing commission of non-cognizable offence by the accused opposite parties under Section 506 I. P. C. Strangely enough, without allowing the case to proceed as a case instituted on the basis of a complaint by the investigating police officer, the accused opposite parties were neither proceeded with nor any order was passed on the basis of the said report. ( 3 ) THEREAFTER the present petitioner filed a further petition in the said case being G. R. Case No. 546/80 and on 12. 8. 83 the said case was registered as C. R. Case No. 319/83. The learned Sub-divisional Judicial Magistrate accordingly by an order, dated 12. 8. 83 took cognizance and issued summons under Section 506 I. P. C. upon the accused opposite parties. On 29. 11. 83 a Vakalatnama was allowed to be filed on behalf of the present petitioner. On 16. 3. 85 the petitioner as also the opposite parties were heard on the basis of an application filed by the complainant. No order was, however, passed thereupon. On 18. 5. 87 an order was passed by the learned Magistrate dropping the proceeding for want of sanction within the meaning of section 197 Cr. P. C. and the accused opposite parties were discharged under section 258 Cr. P. C. ( 4 ) THE moot question on the point is whether the accused persons committed any overt act while acting or purporting to act in the discharge of their official duties and whether they were such public servants not removable from their office save by or with sanction of the State Government. It is agreed by both Mr. Dilip Kr. It is agreed by both Mr. Dilip Kr. Dutta learned Advocate for the petitioner and Mr. B. C. Ray learned Advocate for the opposite parties that Section 258 Cr. p. C. is not attracted to the facts of the present case. Section 258. Cr. P. C. applies in respect of any summons case instituted other wise than upon complaint where the learned Magistrate is vested with the jurisdiction to stop the proceeding at any stage without pronouncing any judgment for reasons to be recorded by him in this regard. Such stoppage of proceeding, if made prior to recording of evidence of the principal witness and the release of the used, would have the effect of discharge. The present case, however, is not one where it is summons case instituted otherwise on upon complaint, inasmuch as police investigated into an offence of an non-cognizable variety. A report was made by a polices officer under Section 173 Cr. P. C. which disclosed after investigation, commission of an offence under Section 506 I. . P. C. Such report should be deemed to be a complaint and the police officer by whom such report is made should be deemed to be the complainant. There was thus no scope for the present petitioner to be vested with the responsibility of conducting the proceeding and hence initiation of the proceeding from 12. 8. 83 onwards at the behest of the present petitioner is utterly misconceived. All orders passed from that stage onwards would be deemed to be utterly conceived and are quashed. ( 5 ) THE learned Sub-divisional Judicial Magistrate is now vested with the only alternative of treating the C. R. Case 546/80 renumbered as C. R. Case No. 319/83 to be treated as a case instituted on the basis of a complaint within the meaning of explanation to Section 2 (d) Cr. P. C. and the police officer by whom report was submitted is to be deemed as the complainant. ( 6 ) SECTION 506 I. . P. C. in its First Part which contains offence criminal intimidation, is an offence where there may be imprisonment for two years or fine or both. It is indeed a summons case but the present case should be regarded as a summons case instituted on the basis of a complaint. ( 6 ) SECTION 506 I. . P. C. in its First Part which contains offence criminal intimidation, is an offence where there may be imprisonment for two years or fine or both. It is indeed a summons case but the present case should be regarded as a summons case instituted on the basis of a complaint. ( 7 ) AS regards the question as to whether the opposite parties, protected under Section 197 Cr. P. C. or not, the learned Magistrate is directed to decide first as to whether it is a case of opposite parties resorting to criminal intimidation while acting or porting to act in the discharge of their official duties and if it is found by the court below that there was no scope of taking that that the opposite parties were acting or purporting to act in discharge of their official duties, no question of immunity from prosecution under section 197 Cr. P. C. would arise. ( 8 ) THIS is in conformance to with the latest view of the Supreme Court taken in Bakshi Singh Brar vs. Smt. Gurmej Kaur and another, reported in AIR 1988 S. C 257. Sabyasachi Mukharji, J. speaking for the Supreme Court upheld the view taken by the trial court that after gathering materials and some evidence, it would be possible to determine whether the accused while acting in the discharge of his duties as a police officer exceeded the limit of his official capacity in committing the alleged crime. Approving the stand taken by the Trial court, the Supreme Court held that the order of the trial court was proper and the High Court was also right in not interfering with the order under Section 482 Cr. P. C. It was further held by the Supreme Court in this case that while it is necessary to protect public servants in the discharge of their duties and they must be made immune from being harassed in criminal proceedings and prosecution which was the rationale behind incorporation of Section 196 and 197 Cr. P. C. in the statute, it is equally important that the rights of the citizens should also be protected and no excess should be permitted. P. C. in the statute, it is equally important that the rights of the citizens should also be protected and no excess should be permitted. In the facts and circumstances of each case, protection of public officers and public servants functioning or discharging their official duties and protection of private citizens have to be balanced by finding out as to what extent and how far are the public servant really working in the due discharge of their duties or in purported discharge of their duties and whether the public servants have at all exceeded their limit. It is true that the statute makes it obligatory that if the acts were done in the discharge of official duties, then the trial may have to be stayed, unless sanction is obtained, but at the same time it has to be emphasised that criminal trial should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. ( 9 ) IN Bhagwant Singh vs. Commissioner of Police and another reported in AIR 1985 SC 1285 it was held that in a case where the learned Magistrate to whom a police report is forwarded under sub-section (2) of Section 173 taking a decision not to take cognizance of the offence and to drop the proceeding or deciding that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the learned Magistrate is duty bound to give a notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. In the present case, no such opportunity was given to the petitioner and hence there was genuine reasons for lodging his protest against the said state of affairs which culminated in the learned Magistrate passing an order on the basis of the report submitted by the police under Section 173 Cr. P. C. on 9-2-81. Hence the comment by the learned Magistrate about the long delay in initiation of the proceeding by the present complainant petitioner is not warranted and is rather uncalled for. Even though I find from the records that the application for treating the final report as complaint was filed on 12-8-83 by the present petitioner, the order, dated 12-8-83, however, is not in order. Even though I find from the records that the application for treating the final report as complaint was filed on 12-8-83 by the present petitioner, the order, dated 12-8-83, however, is not in order. But then as indicated earlier, the proceeding should be taken as having been lodged by the Investigating Officer in his capacity as a complainant and not by the present petitioner himself so that the petitioner may be burdened with the additional responsibility to supervise the carriage of the proceedings on the face of lack of proper initiative by the police authorities who may crumble under political pressure. ( 10 ) IT is contended by Mr. Ray the learned Advocate appearing on behalf of the opposite parties that Municipal Commissioners are public servants removable by State Government as was decided in the case of Emperor vs. Hiralal Das reported in A. I. R. 1939 Cal. 636. On the same analogy Mr. Ray cited before me Section 199 of West Bengal Panchayat Act which describes all members, officers and employees of the Gram Panchayat, Panchayat Samtiy and Zilla Parishad as public servants while acting or purporting to act in pursuance of the discharge of their duties or in the exercise of their powers under the West Bengal Panchayat Act or under the Rules or bye-laws made thereunder. They become public servants within the meaning of Section 21 I. P. C. by operation of law. There is further provision under Section 200 of the said Act, that no suit or other legal proceedings shall lie against Gram Panchayat or Panchayat Samity or a Zilla Parishad or against any member thereof or any officer or employee, for anything done in good faith or intended to be done. Whether acting as representatives of Krishak Samity pressing for certain demands on behalf of agricultural workers or holding a deputation, the accused opposite parties could resort to criminal intimidation is indeed a debatable point, not directly covering a case of an immunity under the protection of Section 197 Cr. P. C. by mere pretence that the act actually resorted to was so done while acting or purporting to act in their official capacity as public servants. P. C. by mere pretence that the act actually resorted to was so done while acting or purporting to act in their official capacity as public servants. However, I leave the matter for the learned Magistrate to ascertain at the trial itself and not to stifle the prosecution at the initial stage at the preliminary stage as a bar to the continuance of the case, as a complaint case, merely on that score. But if ultimately at the trial it is found that the accused opposite parties have really acted in their official capacity or were purporting to act in their official capacity as public servants, they may indeed be entitled to the protection as contemplated in Section 197 Cr. P. C. and for the lack of sanction, the entire prosecution may be abortive. On the other hand, if they exceed their jurisdiction, they are amenable to be dealt with under the Penal Code. Even if I have expressed my views about tenability of such a proposition, I make no final pronouncement on merits but leave the matter entirely for consideration of the Id. Sub-divisional Judicial Magistrate or such other learned Magistrate who holds the trial ultimately. ( 11 ) IN the facts and circumstances of the present case, I set aside not only the order, dated 18-5-87 discharging the accused opposite parties but I set aside all orders from 12-9-83 onwards and direct the learned Magistrate to treat the case as a complaint case on the basis of the complaint filed by the Sub-Inspector D. Majumdar of Tarakeswar P. S. and allow the case to proceed as a complaint case. ( 12 ) AS indicated above, the question of sanction as a prerequisite to the maintainability of the prosecution, on the opposite parties taking the plea of their acting as public servants or purporting to act in the due discharge of their official duties would be decided at the trial and not as a preliminary issue. ( 13 ) THE Rule is thus made absolute. The proceedings from 12-9-83 stand quashed but the learned Magistrate is directed to proceed in accordance with law in conformity to the orders passed above and as indicated hereinbefore. Rule made absolute.