By this application under section 482 CrPC the petitioner has approached this Court for quashing the proceedings in C.R. Case No. 434 (S)/85 under sections 148/427/447/448/306/166 IPC pending in the Court of the learned Chief Judicial Magistrate, Shillong and also for setting aside the order dated 29.6.85 passed by the learned Chief Judicial Magistrate in the said case. 2. The opposite party filed a complaint case against Shri G.S.Cheema, Administrative Commandant, Station Headquarter, Shillong and 12 others, who are all Army personnel, alleging criminal trespass into his land and demolition of his house standing on the land and also criminal intimidation etc. The learned Chief Judicial Magistrate on consideration of the contents of the complaint and initial statement on oath of the complainant, registered C.R. No. 434 (S)/85 and issued process to the accused persons. 3. After receipt of summons the accused petitioner appeared and filed application raising preliminary objection that learned Chief Judicial Magis­trate could not take cognizance of the offence alleged to have been committed by them without prior sanction of the Central Govt. as contemplated under section 197 CrPC. The learned Chief Judicial Magistrate after hearing the parties by the impugned order rejected the objection holding that after going through the documents on record and on consideration of the submissions of both parties he found that the present complaint petition arose out of civil suit in which the subject matter in dispute was same, as such the Court had full jurisdiction to proceed with the case. 4. Mr. R.K. Purkayastha, learned Central Govt. Standing Counsel appea­ring on behalf of the petitioner has submitted that accused persons are public servants and the offence alleged to have been committed by them, if any, was committed while acting or purporting to act in course of discharge of their official duties. As such, learned Chief Judicial Magistrate had no jurisdiction to take cognizance of such offence without previous sanction of the Central Govt. as contemplated under section 197 CrPC. Mr. Purkayastha has sub­mitted that the accused persons being members of Armed Force, are also protected from arrest as per provision of section 45 CrPC. As such, learned Chief Judicial Magistrate had no jurisdiction to take cognizance of such offence without previous sanction of the Central Govt. as contemplated under section 197 CrPC. Mr. Purkayastha has sub­mitted that the accused persons being members of Armed Force, are also protected from arrest as per provision of section 45 CrPC. The learned Standing Counsel has referred to a number of documents annexed to the additional affidavit filed in this petition in support of the contention that the accused persons while purporting to act in the course of discharge of their official duties have done whatever has been alleged to have been done in the complaint. 5. Mr. B.Das, learned counsel for the opposite party has submitted that admittedly apprehending arbitrary eviction by the Army authorities, the opposite party, to safeguard his interest, filed T.S. No. 39 (T)/69 against the Executive Officer, Shillong, Military Estate Officer and Union of India in the Court of the learned Assistant to Deputy Commissioner for a decree of declaration of his right, title and interest and for permanent injunction restraining the defendants and from interferring with his possession. The suit was decreed on contest. Against the said decree T.C.A. No. 1 (T)/71 was preferred by the defendants and the appeal was dismissed by the judgment dated 28.2.81. The decree passed by the learned Assistant to the Deputy Commissioner and affirmed by the appellate Court below was not challenge in High Court. However, in spite of the decree of the competent Court, the petitioner with other accused persons in violation of the injunction, trespassed into the land in occupation of the complainant and demolished the houses standing thereon and caused damages under threat. The petitioner and other accused persons have thereby committed offences under sections 148/427/447/448/306/166 IPC. The decree passed by a competent Court was known to the Army authorities and, as such, the offences committed was deli­berately and can not be held to be committed while acting or purporting to act in discharge of their official duties. In support of his contention Mr.Das has place reliance in the decisions of the Hon'ble Supreme Court in the following cases:- Prabhakar vs. Sinari, ( AIR 1969 SC 686 ), 2. Bhagwan Prassad vs.Srivastava ( AIR 1970 SC 1661 ) and 3. Pukhraj vs. State of Rajasthan ( AIR 1973 SC 2591 ). 6. In support of his contention Mr.Das has place reliance in the decisions of the Hon'ble Supreme Court in the following cases:- Prabhakar vs. Sinari, ( AIR 1969 SC 686 ), 2. Bhagwan Prassad vs.Srivastava ( AIR 1970 SC 1661 ) and 3. Pukhraj vs. State of Rajasthan ( AIR 1973 SC 2591 ). 6. I have considered the submissions made on behalf of the petitioner as well as on behalf of the opposite parties I have also perused the impugned order and other materials on record and the decisions of the Hon'ble Supreme Court. In the case of Prabhakar (supra), a Deputy Superintendent of Police in civilian dress appeared and threatened the complainant that he would arrest him if he interferred with the hawkers to enter the land. He also threatened the complainant that he would be slapped. On the aforesaid facts the Hon'ble Supreme Court in para 7 of the judgment amongst other held:- "According to the complainant he sent his brother to the Police Station who would go to the spot go prevent any breach of peace or apprehended breach of peace. Even if the appellant who was a superior officer could come to prevent any ugly situation arising between the complainant and the hawkers, it is not established that the appellant came in the capacity as police officer. On the contrary the necessary implication in the statement of the complainant is that the appellant came in civil dress, wanted the hawkers to be put in possession of the disputed plot and actually directed them to enter the plot and warned the complainant that if he resisted he would be slapped in his face. Until some more material is placed on the record it cannot be held that if was any part of the duty of the appellant to ensure that the hawkers were put possession of the disputed land." On the basis of the said finding the Hon'ble Supreme Court upheld the decision of the learned Judicial Commissioner that sanction under section 197 Cr PC was not necessary. In the case of the Bhagwan Prassad (supra) the fact was that the complainant was a qualified Surgeon and the accused was the Civil Surgeon, the immediate superior and boss of the complai­nant. In the case of the Bhagwan Prassad (supra) the fact was that the complainant was a qualified Surgeon and the accused was the Civil Surgeon, the immediate superior and boss of the complai­nant. The accused Civil Surgeon asked complainant to arrange knife for the purpose of operating contact, to which the complainant replied that without his specific order, he could not purchase knife from the market. But the Civil Surgeon insisted on him that he should arrange himself to which the complainant expressed inability. The allegation was that, there­upon the Civil Surgeon got annoyed and addressed him in derogatory words and not satisfied with the derogatory words he ordered the cook of the Hospital to turn out the complainant telling - "Pandey turn out this Badmas". Taking into consideration the facts of the complainant's case, the Hon'ble Supreme Court held that there was nothing 10 show that the alleged act was a part of the official duty of the Civil Surgeon and that no sanction was required under section 197 CrPC for prosecution of the Civil Surgeon. In the case of the Pukhraj (supra), allegation was that the Post Master General kicked and abused the complainant, who was a clerk when he was submitting a representation for concellation of the order of his transfer. The Hon'ble Supreme Court in the said case after taking into consideration of earlier decisions on the question of prior sanction under section 197 CrPC for prosecution of a public servant, in para 2 of the judgment held : "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 acts 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. These offence should have been committed when an act purports to has done in the execution of duty or when an act purports to be one in the execution of duty. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. These offence should have been committed when an act purports to has done in the execution of duty or when an act purports to be one in the execution of duty. The test appears to be done not that the offence is capable of being committed only by 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 can be confined to only such acts as are done by a public servant directly in pursuance of 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 so inseparably connected with the official duty as to form part and parcel of 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 official duty. It does not apply to acts done squarely 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 sanction. 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". 7. It is well settled that sanction under section 197 CrPC does not apply to the act done purely in the private capacity by a public servant. To attract the provision of section 197 CrPC the offence alleged to have been committed must be in respect of an act or purported to be done in the discharge of official duties. As such whether the act alleged to have been done by public servant, is illegal or the alleged act amount to contravention or violation of the injunction issued by a competent Court, is not decisive of the question as to whether a sanction under section 197 CrPC is necessary or not for taking cognizance. As such whether the act alleged to have been done by public servant, is illegal or the alleged act amount to contravention or violation of the injunction issued by a competent Court, is not decisive of the question as to whether a sanction under section 197 CrPC is necessary or not for taking cognizance. The enquiry in this question is to be confined to as to whether the alleged acts of the public servant was committed while acting or purporting to act in the discharge of official duties or not. In the instant case, if it is found that under the petitioner's command alleged acts were done while acting or purporting to act in the discharge of official duties prior sanction under section 197 CrPC is a must. Approach of the learned Chief Judicial Magistrate deciding the question whether previous sanction under section 197 CrPC was necessary or not before taking cognizance of the offence is "Wholly erroneous. Learned Chief Judicial Magistrate has held that sanction under section 197 CrPC was not necessary, on the basis of the finding that subject matter of the complaint in the T.S. No. 39 (T)/69 and T.A. No. 1 (T)/79 were same and the complaint arose out of the said suits which was quite irrelevant for deciding the question as to whether sanction was necessary or not. The documents on which the petitioner has placed reliance to establish that alleged acts were one in the purported discharge of the official duties, do not appears to have been produced before the learned Chief Judicial Magistrate. 8. For the aforesaid reasons, the impugned order dated 29.6.85 cannot be sustained and is set aside. The case is remanded to the Court of learned Chief Judicial Magistrate to dispose of the application on the question as to whether sanction under section 197 CrPC was necessary for taking cognizance or not as preliminary point in accordance with law. The accused persons shall file the documents, and if necessary, prove these by adducing evidence. The learned Chief Judicial Magistrate shall give opportunity to the accused to prove the documents. 9. The petition is allowed to the extent indicated above.