P. K. TRIPATHY, J. ( 1 ) HEARD further arguments from the parties. Petitioners are the accused persons in ICC No. 15/1995 in the Court of Judicial Magistrate, First Class, Narasinghpur. They have filed this application under S. 482, Cr. P. C. challenging the order dated 30-4-95 by which learned Magistrate rejected the contention of the petitioners that they are protected under S. 197, Cr. P. C. , and the order of cognizance is illegal in the absence of a sanction under that provision of law. ( 2 ) IT is the admitted case of the parties that petitioner No. 1 is the Range Officer and the petitioner No. 2 is the Forest Guard working under the Forest Department and at the relevant time serving under the Narasinghpur Range. It is the further admitted fact of the parties that the complainant/opposite party was a wanted criminal in connection II (b) G. C. No. 65/95 and on 24-4-95 at about 9 a. m. petitioners found and arrested him and took him to the Range Office. It is the further admitted facts that on 26-4-95, opposite party was produced before the Magistrate. He complained of ill-treatment, assault and abuse said to have been made by the petitioners. In that context, learned J. M. F. C. forwarded the opposite party to the hospital for medical examination and upon receipt of the injury report, he, treated the written complaint of the opposite party as complaint petition and registered the same as I. C. C. No. 15/95. Learned J. M. F. C. conducted an inquiry under S. 202, Cr. P. C. and on perusal of the statements of the witnesses including that of the complainant found a prima facie case to have been made out under Ss. 323/294, IPC and took cognizance of such offences. ( 3 ) PETITIONERS approached learned Magistrate to recall the aforesaid order of cognizance on the ground that arrest and detention was made by them in due discharge of the official duty and the allegation of assault is out and out-false, therefore in the absence of sanction under S. 197, Cr. P. C. from the concerned authorities, learned Magistrate should not have taken cognizance of the offence. P. C. from the concerned authorities, learned Magistrate should not have taken cognizance of the offence. Learned Magistrate after hearing the parties rejected the contentions advanced by the petitioners on the ground that there is no nexus between the official duty performed by the petitioners and the allegations of assault alleged against them by the opposite party inasmuch as after arrest of the opposite party at 9 a. m. , he alleged that he was assaulted inside the Range Office in the night at about 9 p. m. ( 4 ) LEARNED counsel for the petitioners put a strenuous argument to convince the Court that in fact protection under S. 197, Cr. P. C. is available in favour of the petitioners and that has wrongly been not granted by the learned J. M. F. C. In that context, of course, he candidly concedes in this Court that so far as the allegation of assault in the night is concerned, there is no direct or circumstantial prima facie evidence forthcoming to show or suggest that the alleged act of assault, if admitted for the sake of argument, was done while discharging the official duty or in connection with discharge of the official duty. He, however, argues that a false case has been set up against the Government Officers who were discharging their duties and therefore, they must be given the protections. ( 5 ) CONTENTION of the petitioners regarding institution of false case is not sustainable inasmuch as learned Magistrate after proper appreciations of the statements of witnesses recorded in the inquiry under S. 202, Cr. P. C. has found existence of a prima facie case. It is the settled principle of law that at the stage of taking cognizance, a cognizance taking Magistrate is required to find out from the materials available in the case record, if prima facie it makes out a case satisfying the ingredients of the offence complained of. At the stage of taking cognizance, a cognizance taking Magistrate is not required to meticulously scrutinise the evidence on record to find out whether the evidence in record are sufficient to warrant a conviction. Of course, at that stage, the cognizance taking Magistrate has to visualise about the improbability if any in the allegation so as to dispel the contentions advanced by the complainant. Of course, at that stage, the cognizance taking Magistrate has to visualise about the improbability if any in the allegation so as to dispel the contentions advanced by the complainant. In this case, the allegations as levelled against the petitioners are neither inherently improbable nor such evidence speaks against existence of a prima facie case. Under such circumstances, learned Magistrate was correct in his approach in taking cognizance of the offence after proper analysis of the same. ( 6 ) IT is also the settled position of law that if cognizance of an offence has been taken by the cognizance taking Magistrate on proper appreciation of evidence, it is not open to the superior Courts like the revisional Court, the High Court and the Supreme Court to reassess the evidence and to substitute its own reasoning so as to upset the order of taking cognizance. See AIR 1976 SC 1947 : (1976 Cri LJ 1533) Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and AIR 1978 SC 1568 : (1978 Cri LJ 1687) Hareram Satpathy v. Tikaram Agarwal. ( 7 ) HOWEVER the aforesaid order of taking cognizance can be disturbed, yet, in another circumstance i. e. , if the protection under S. 197, Cr. P. C. is available to the accused persons. Object of that section is to guard against vexatious proceeding against judges, Magistrates and Public servants and to secure the opinion of superior authority i. e. , the sanction when it is found desirable that there should be a prosecution against such public servants. Keeping in view the statutory provision in S. 197, Cr. P. C. it can be safely said that before invoking the pro-vision relating to sanction, the public servant (accused in the case) raising such a plea has to satisfy two conditions, viz. (i) that he (the accused) was a public servant removable from his office only with the sanction of the State Government or the Central Government, as the case may be, and (ii) he must be an accused of the offence alleged to have been committed by him while acting or purporting to act in the discharge of the official duty. ( 8 ) KEEPING in view the argument advanced by the petitioners as well as referring to the statu-tory provision of law in S. 197, Cr. ( 8 ) KEEPING in view the argument advanced by the petitioners as well as referring to the statu-tory provision of law in S. 197, Cr. P. C. if the facts and circumstances available in this case will be analysed, then, the allegations prima facie made out is that at 9 a. m. on the date of occurrence complainant/opposite party was arrested in connection with a criminal case pending against him and was kept in the Range Office at Narasinghpur and at about 9 p. m. on that date, he was assaulted in the office of the accused persons. Learned counsel for the petitioners could not show from anything in the record as to what was that circumstance which led the accused persons to assault the complainant in due discharge of their official duty. It is well understandable that while discharging the official duty a public servant may not always be capable of functioning within the limits as prescribed under the law. There may be some amount of excess which a public servant may commit while discharging the duty and in such instances only the Court is to consider the degree of excessiveness and also to consider the question of necessity of obtaining of sanction before taking of cognizance. So far as the present case is concerned, nothing could be stated before this Court or in the lower Court about what was the duty discharged at 9 p. m. which resulted in assault of the complainant by the petitioners. Under such circumstances, since the petitioners have not been able to show any nexus between the official duty and the act complained of protections under S. 197, Cr. P. C. , under the given circumstances, is not available to them. Hence, the finding recorded by the learned J. M. F. C. is not found to be illegal, unjust or improper or against the principle of natural justice or resulting in abuse of the process of law. Hence there is no necessity or justification to invoke the inherent power so as to set aside the impugned order or to quash the cognizance order. ( 9 ) LEARNED counsel for the petitioners has also advance an alternative argument stating that liberty may be granted to the petitioners to raise the plea of want of sanction as defence plea at the time of trial. ( 9 ) LEARNED counsel for the petitioners has also advance an alternative argument stating that liberty may be granted to the petitioners to raise the plea of want of sanction as defence plea at the time of trial. Learned counsel appearing for the complainant-opposite party opposes to that submission on the ground that in view of the impugned order of the J. M. F. C. and the present order of this Court, petitioners are estopped from taking such a defence plea at the time of trial. ( 10 ) THE objections raised by the opposite party, as aforesaid is not sustainable. Simple reason for the same is that at the time of trial, accused has a legal right to take any defence plea which is legally permissible and which he thinks proper to take. A defence plea relating to want of sanction is a legal plea which the petitioners/accused persons are capable of taking as a defence plea and there is no law to debar them from taking such a plea. A finding recorded by the learned J. M. F. C. in the impugned order and refusal by this Court to interfere with that order on the grounds as above noted does not operate as res judicata inasmuch as this is not a finding on assessment of evidence on merit but a finding recorded on taking prima facie view. In such a case and under the given circumstances the principle of constructive res judicata, which the opposite party precisely raises in this case, is not available in favour of the complainant or against the accused persons. In other words, if the accused so desires he may take a defence plea of want of sanction under S. 197, Cr. P. C. and the trial Court shall consider the same in accordance with law and the evidence which may be available before him during the course of the trial. For the reasons assigned in this order there being nothing to interfere with the impugned order, the Criminal Misc. case is dismissed. Order accordingly.