Judgment SUDHIR KUMAR KATRIAR, J. 1. This application under Section 482 of the Code of Criminal Procedure, 1973, has been preferred by the sole petitioner with prayer to quash the impugned order of cognizance dated 13.1.1994, passed by the learned Chief Judicial Magistrate, Banka, in Complaint Case No. 7 (c) of 1994/Tr. No. 835 of 1994, then pending in the Court of Shri M.P.Srivastava, Judicial Magistrate, 1st Class, Banka, whereby cognizance has been taken of the alleged offences under Sections 144, 431, 427, 504, IPC, and the petitioner and one more have been summoned to stand their trial. 2. To narrate the back-ground of the present case as emerging from the two FIRs and the complaint petition in question, covering the days events in sequence of time, there was a call for Bihar Bandh on 24.12.1993 by various organisations of students and unions. One Bibhuti Bhushan Singh, Secretary, Advocates Association, Banka, had also lodged an FIR with Banka Police Station, which was registered as Banka PS Case No. 447/93, dated 24.12.1993, wherein allegations were levelled under Sections 143, 448, 379, 427 and 34 of the IPC against three named persons as well as 50 unnamed persons. A photocopy of the same is marked Annexure 2 to the quashing petition. According to the allegations in the FIR, on 24.12.1993, at about 9 a.m., while the Association premises was being dusted and made ready for the day, three persons along with 50 unnamed persons had stormed into the Association hall and forcibly took away three black coats costing about Rs.1,200/-, and had torn and destroyed two. They had also engaged themselves in acts of vandalism and had smashed about 30 chairs, tables, benches, etc. and destroyed some papers also. The staff of the Association protested, and the members of the unlawful assembly retaliated by abusing the staff and threatened to kill them. It is manifest from the allegations in this FIR that vandalism committed on 24.12.1993 in the name of Bihar Bandh seems to have started at 9 a.m., and was in its full fury which is the subject-matter of Banka PS Case No. 449/93 (Annexure-1), indicated below. 3. One Ignatius Murmu, Magistrate Incharge, Collectorate Premises, Banka, had lodged a FIR, which was registered as Banka PS Case No.449/93, dated 24.12.1993, under Sections 147, 148, 149, 353, 323, 324, 337, 427, 307, IPC and Section 27, Arms Act. 3. One Ignatius Murmu, Magistrate Incharge, Collectorate Premises, Banka, had lodged a FIR, which was registered as Banka PS Case No.449/93, dated 24.12.1993, under Sections 147, 148, 149, 353, 323, 324, 337, 427, 307, IPC and Section 27, Arms Act. A photocopy of the same is marked Annexure 1 to the quashing petition. According to the allegations, the petitioner at the relevant point of time was the District Magistrate at Banka. About 500 persons armed with lathis, dandas, rods, brick-bats, etc. raising exciting slogans, had entered the Collectorate premises at Banka on 24.12.1993 and attempted to burn the Collectorate building. They had committed acts of vandalism, had damaged Government properties including the Collectors car, were determined to commit violence, had caused grievous injuries to public servants on duty including members of the police force, and had pelted brick-bats at them. The unruly mob consisting of wild young men wanted to invade the treasury also. Consequently, the Government functionaries headed by the present petitioner had ordered for lathi-charge followed by mock firing as a result of which the mob had dispersed. 4. It appears from the records that the Bar Association and the Collectorate at Banka are adjoining each other with a common boundary wall, and there was opening in the boundary wall separating the two. It appears that the district administration felt that the opening was being used by unauthorised persons also as ingress and egress to the Collectorate premises which should be sealed to prevent the same, and in order to prevent the mob fury and acts of vandalism which was the subject-matter of the aforesaid two FIRs. This effort on the part of the district administration headed by the petitioner herein seems to be the subject-matter of the complaint case (Annexure 3) in question, wherein cognizance has been taken against the petitioner and the then SDO, Banka, and impugned herein. 5. According to the petition of complaint, giving rise to the present quashing petition, lodged by one Har Naryana Singh, Joint Secretary, Banka Bar Association, filed in the Court of learned CJM, Banka, alleging therein that on 24.12.1993, at about 4 p.m., the two accused-persons including the petitioner herein were present along with unknown majdoors, and were getting the earth dug up with a view to put up a boundary wall. The complainant and other witnesses protested and asked the accused-persons to refrain from committing the atrocity, whereupon both the accused-persons called them names, spoke in very abusive language, and ordered for demolishing the two hotels., Consequently, both the hotels in the premises of the Bar Association were demolished, and also lifted one truck of stone chips costing about Rs. 3,200/-, 2,000 pieces of bricks costing of Rs. 880/-, and one trailor of sand costing about Rs. 80/-, which were used for construction of the new boundary meant to fortify the Bank Collectorate. Construction of the boundary wall went on war-footing upon 2.03 a.m. Setting up of this boundary wall has deprived the hall of the Bar Association from light and air, and is also preventing the officers and staff working in the Court, lawyers, their clerks, litigant public, the teachers, students, etc. going to R.M.K. High School, Banka, situated close by, as well as the members of the local populace inhabiting nearby locality. According to the further allegations, the said passage was closed on account of high-handed act of the accused-persons, was in existence for a century, and was being used by the general populace in the aforesaid manner. On these allegations Complaint Case No. 7/94 (Har Narayan Singh V/s. Devendra Kumar Sinha and others), was registered. Photocopy of the complaint petition is marked Annexure-3 to the quashing petition. 6. The learned CJM took cognizance of the alleged offences and conducted an inquiry under Section 202 of the Code. A number of witnesses were examined by the complainant in support of the complaint case, and on the conclusion of which the learned CJM was pleased to take cognizance against the present petitioner as well as the SDO, Banka, in the aforesaid mariner, and impugned herein. While passing the impugned order, the learned CJM considered the question of sanction for prosecution of the accused-persons as contemplated under Section 197 of the Code and has observed as follows in the impugned order "...If there is no reasonable connection between the act complained of and the official duty, then sanction is not required. It has been submitted that abusing the members of the Bar Association demolishing the hotels of the Bar Association without any notice or reason, or closing public way, are not part of his official duty. So under present set of circumstances a prima facie case under Sections 144. It has been submitted that abusing the members of the Bar Association demolishing the hotels of the Bar Association without any notice or reason, or closing public way, are not part of his official duty. So under present set of circumstances a prima facie case under Sections 144. 431, 427 and 500, IPC is made out against both the accused-persons...". The learned CJM has also on consideration refused to take cognizance of the alleged offence under Section 379 of the Code. 7 Learned Counsel for the petitioner has assailed the validity of the impugned order of cognizance on the sole ground that the alleged acts where in discharge of official duties and the petitioner may have in the process marginally exceeded the limits which is yet covered by provisions of Section 197 of the Code. In his submission, there was a reasonable nexus between the official discharge of duty and the excess committed by them. He has relied on the following judgments reported in State of Bihar V/s. Kamla Prasad Singh and others, (1998) 5 SCC 690 : 1998 (2) East Cr C 508; Panchamial V/s. State of Bihar, 1978 PLJR 480; and Ram Swarath Yadav V/s. State of Bihar, 1991 (1) BLJR 7 . 8. Learned Counsel for opposite party No. 1 (the complainant), submitted that abusing the members of the Bar Association in the manner as has been alleged in the petition of complaint, demolishing two hotels within the premises of the Bar Association, and lifting the building materials can never be a part of official duties. The accused-persons were power-drunk and the alleged acts were high water-mark of arbitrariness. It is manifest from a plain reading of the complainant petition (Annexure 3), that the petitioner is not entitled to the protection afforded by Section 197 of the Code. He has further submitted that the issues raised before this Court are mixed questions of facts and law and can be decided appropriately after a full-length trial. He has relied on the following reported judgments : 1. B.P. Srivastava V/s. N.P. Mishra, AIR 1970 SC 1661 . 2. Bakshish Singh Brar V/s. Smt. Gurmej Kaur, AIR 1988 SC 257 : 1988 East Cr C 144 (SC). 3. Ashwini Kumar Sinha V/s. Kameshwar Deo, 1963 BLJR 36 (NOC). 4. Bhola Prasad Choudhary V/s. Guru Prasad Saha, 1965 BLJR 351. 5. Rajendra Singh V/s. State of Bihar, 1978 BLJR 12 . 2. Bakshish Singh Brar V/s. Smt. Gurmej Kaur, AIR 1988 SC 257 : 1988 East Cr C 144 (SC). 3. Ashwini Kumar Sinha V/s. Kameshwar Deo, 1963 BLJR 36 (NOC). 4. Bhola Prasad Choudhary V/s. Guru Prasad Saha, 1965 BLJR 351. 5. Rajendra Singh V/s. State of Bihar, 1978 BLJR 12 . 9. I have carefully considered the rival contentions of the parties and I have perused the limited materials before me which are indicated herein above. The complainant has not filed any counter-affidavit. Learned Counsel for the complainant goes to the extent of submitting that construction of a boundary wall cannot in the normal state of affairs be part of the duties cif a power-drunk District Magistrate as the petitioner, let alone the excesses committed by him. Therefore, in his submission, the very substratum is gone. However, the facts and circumstances before me including the aforesaid two FIRs (Annexures 1 and 2), lead me to the conclusion that the alleged act of raising a boundary wall was a bona fide discharge of his official duties. It is manifest from the FIR (Annexure 2), that there was a call for Bihar Bandh on 24.12.1993, and it appears that the hoodlums had become active by 9 a.m. and had started their activities from the Bar Library itself. It further appears that the Bar Association and the Collectorate are adjoining each other and have a common boundary wall. The aforesaid FIR Annexure 1 gives a vivid description of the acts of vandalism and attack on the police personnel as well as some of the executive functionaries which had taken place in the Banka Collectorate during the course of the day. It is manifest from a conjoint reading of the two FIRs and the present complaint petition that the official machinery headed by the petitioner herein were lawfully engaged and badly harassed during the course of the date to repel the vandalism of the members of the unlawful assembly which had assembled in the Collectorate premises. It is further clear that the aforesaid passage adverted to in the present petition of complaint and sought to be closed by the petitioner was a passage used by all and sundry, apart from authorised persons like lawyers, their clerks, litigant public; etc. It is further clear that the aforesaid passage adverted to in the present petition of complaint and sought to be closed by the petitioner was a passage used by all and sundry, apart from authorised persons like lawyers, their clerks, litigant public; etc. The petitioner must have bona fide thought that if the passage is closed, then the passage will not be used by unauthorised persons and the Collectorate would be safe and secure from hoodlums. It was, therefore, not a seemingly small question of closing a passage, but really the larger question of securing the safety and security of the Collectorate, the nerve centre of the district administration, and also the question of effectively dealing with such Bandh at the call of hoodlum. He must also have found after perusal of the FIR (Annexure 2), that it would perhaps be in the interest of the Bar Association also. The following portion of the complaint petition in question (Annexure 3), may be usefully quoted : ^PJT I 3B fcTTcI # cpjf $ W^\ 3 * >l4 >!d ^T^RpT^M, *«i-cH-?Mu|, STf^rlT, fef. ft + >Jl"l, U«* > , %nafbFi ^r It is thus manifest on the own saying of the complainant (opposite party No. 1 herein), that the premises of the Bar Association, that of the Collectorate, and the aforesaid opening was being used by unauthorised persons, by the students of the school, and the residents of the nearby colony. A harried and battered D.M. and SDO towards the end of a gruelling day were not prepared to listen that this was an arbitrary act. Hence, the alleged excesses. Prima facie, I have no manner of doubt that the accused-persons were acting bona fide in closing the opening in the boundary wall in question by putting up a wall there. 10. In such circumstances, in my view, the present case is covered by the proposition of law laid down by a learned Single Judge of this Court in the case of Ram Swarath Yadav V/s. Dr. Rajeshwar Prasad Sinha (supra), paragraph 5 of which is relevant and is set out hereinbelow for the facility of quick reference : "The other pre-requisite for application of Section 197(2) of the Code is that the offence complained must be committed by such an officer of Bihar Police Force while acting or purporting to act in discharge of his official duties. From a bare perusal of the case of the complainant, as stated above, it would appear that the offences in question were committed by the accused-persons while acting or purporting to act in discharge of their official duties. Learned Counsel appearing on behalf of the complainant submitted that it cannot be said that the act committed by the accused was in discharge of their official duties. In my view, there is very thin like of distinction between a case where an act complained of can be said to have been committed in discharge of official duties and a case where it cannot be said to be so. In cases where it can be said that there is reasonable nexus between the act complained of and the discharge of official duties and where the two are interwoven, it can be said that the offences was committed while acting or purporting to act in discharge, of official duties. In my view, upon a bare perusal of the petition of complaint, it would appear that there was a reasonable nexus between the act complained of and discharge of official duties and both were interwoven. This being the position, I am clearly of the view, that both the conditions precedent for application of Section 197(2) of the Code are fulfilled in the case in hand; as such the order taking cognizance become wholly unwarranted and prosecution of the petitioners cannot be allowed to continue as continuance thereof would amount to an abuse of process of Court." 10.1 The reliance placed by the petitioner on another Single Judge judgment of this Court in the case of Pancham Lal V/s. Dadan Singh (supra), is equally apposite, paragraph 8 of which is relevant in the present context and is set out hereinbelow for the facility of quick reference : "There is no getting away from the situation, and it is obvious from the posture of the parties that the situation at village Sarathua over harvesting of Kola land crops was tense. In that situation, if the petitioner flung an abuse "Sale Tumhare Bap Ka Khet Hai" and "Maro Sale Ko", did he commit these acts while discharging his duty ? Law and order is quite a ticklish problem. What step will succeed at a particular point of time to ease out a situation has to be seen to be understood. In that situation, if the petitioner flung an abuse "Sale Tumhare Bap Ka Khet Hai" and "Maro Sale Ko", did he commit these acts while discharging his duty ? Law and order is quite a ticklish problem. What step will succeed at a particular point of time to ease out a situation has to be seen to be understood. It is quite different from sitting and calculating in a cool and serene atmosphere of a Court room dissecting the acts and counter-acts alleged by parties. What posture and attitude will succeed in a given set of circumstances must be left to the discretion of the public servant who has to tackle an explosive situation. Often a slap to the gang leader demoralises his adherence and diffuses the situation. The methods and demands of tackling a situation must keep on varying and yet all those acts are in discharge of duty, may be in dereliction thereof. In the situation which existed on the facts of tins case, I have no manner of doubt that the petitioner was acting in discharge of his duties while he uttered these abuses. I am prepared to concede that to an extent he overstepped his bounds. But these niceties can only be gauged in this Court room. An amount of latitude must be conceded when public servants are in the field attending to explosive situations...". 10.2 The relaince placed by the learned Counsel for the petitioner on the judgment of the Supreme Court in the case of State of Bihar V/s. Kamla Prasad Singh, reported in 1998 (5) SCC 690 : 1998(2) East Cr C 508 (SC), is inappropriate which is clear from paragraph 9 of the said judgment, and reproduced hereinbelow : "As the search was made by Respondents 2 to 4 after obtaining a proper warrant for the purpose and as there is no credible material to show that they had neither abused nor assaulted the wife of the complainant nor any other person, what they had done appears to have been done while discharging or purporting to discharge their duties. Therefore, no cognizance of the alleged offence could be taken without a proper sanction of the Government. Therefore, no cognizance of the alleged offence could be taken without a proper sanction of the Government. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and also the order dated 22.8.1987, passed by the Magistrate." It is thus manifest that the Supreme Court had found as an issue of fact for purposes of disposal of the quashing petition that the accused-persons had not at all exceeded in discharge of their duties. On the other hand, the case in hand deals with a situation where the accused-persons had, in the course of discharge of their official duties, exceeded the limits bona fide. The factual position in the two cases are fundamentally different. 11. I must also deal with the judgments on which relaince has been placed by the Counsel for opposite party No. 1. In the case of B.P. Srivastava V/s. N.P. Mishra (supra), the Supreme Court has held that Section 197 is neither to be too narrowly construed nor too widely. It is not the "duty" which requires examination so much as the "act" becuase the official act can be performed both in the discharge of the official duty as well as in dereliction of it. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned. I have already found hereinabove for the purpose of disposal of the instant quashing petition that there was a reasonable connection between the alleged acts and the discharge of the official duties. Therefore, the proposition of law laid down by the Supreme Court supports the case of the petitioners, rather than opposite party No. 1. 11.1 The Supreme Court has held in the case of Bakshish Singh Brar V/s. Gurmej Kaur (supra), that it is necessary to protect public servant in the discharge of their duties. They must be made immune from being harassed in criminal proceeding and prosecution, which is the rationale behind Sections 196 and 197. But, it is equally important to emphasise that rights of the citizens should be protected and no excess should be permitted. "Encounter death" has become common. They must be made immune from being harassed in criminal proceeding and prosecution, which is the rationale behind Sections 196 and 197. But, it is equally important to emphasise that rights of the citizens should be protected and no excess should be permitted. "Encounter death" has become common. In the facts and circumstances of each case, protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of duties or purported discharge of his duties, and where the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even if cognizance having been taken, if facts come to light that acts complained of were done in the discharge of the 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 becuase that may cause damage to the evidence. Insofar as the case in hand is concerned, I have held hereinabove as an issue of fact for the purposes of disposal of the present application that the series of acts to begin with were in bona fide discharge of official duties and in the later stage had exceeded the same. According to the judgment of the Supreme Court, the petitioner herein is entitled to protection of Section 197, and no further facts are needed to determine the question. For the same reason, the judgment of the Honble Single Judge of this Court in the case of Rajendra Singh V/s. State of Bihar (supra), is of no avail to the petitioner. The judgment in the case of Ashwini Kumar Sinha V/s. Kameshwar Deo, is also of no avail to opposite party No. 1. The Honble Single Judge of this Court in the said case had for the purposes of the disposal of the quashing application found as an issue of fact that there was no reasonable connection between the official duties of the accused-officers and the acts of assaulting and abusing the complainant and, therefore, it cannot be said that those acts were done in course of performance of their official duties. On the contrary, I have in the present case held that the chain of events to begin with were in discharge of official duties. 11.2 The Division Bench judgment of this Court in the aforesaid case of Bhola Prasad Choudhary V/s. Guru Prasad Shah, is equally of no avail to the opposite party for the reason that the issue in hand, namely, the alleged acts in excess of the official discharge of duties was not in question before the Division Bench. 12. In such circumstances, I reach the conclusion that the petitioner had, to begin with, started in bona fide discharge of his official duties and on the spur of the moment, because of the strong protest by the complainant and others to the effect that the accused-persons should not commit the atrocity, that he had exceeded the discharge of duties. The net result, therefore, is that the petitioner is entitled to the protection afforded by Section 197 of the Code, and no cognizance could have been taken against him without prior sanction for his prosecution. 13. In the result, this application is allowed, and the impugned order of cognizance dated 13.1.1994, passed by the learned CJM, Banka, in Complaint Case No. 7(C) of 1994/Tr. No. 835 of 1994, is hereby quashed.