JUDGMENT 1. - This petition under section 482 Cr.P.C. is directed against the order dated 30.8.1997 passed by learned Judicial Magistrate, Sujangarh (Distt. Churu) in a complaint case No. 213/97 on an application under section 197 Cr.P.C. dated 17.7.1997 filed by the petitioners raising objections against taking cognizance under sections 447, 427, 466, 120-B IPC after holding an enquiry under sections 200 & 202 Cr.P.C. in the complaint of respondent No. 2. The respondent No. 2 filed a complaint with the allegations that Dayanand Tehsildar, Sujangarh and Adu Ram, Revenue Inspector, Sujangarh demolished the boundary wall of the field due to personal enmity on 13.2.1997 and prepared forged documents showing removal of encroachment. This act of the accused persons does not fall within the purview of the discharge of the official duty. On examining the complainant and other witnesses in support of the complaint, the learned Judicial Magistrate, took the cognizance and passed the impugned order as stated above. The petitioners moved an application under section 197 Cr.P.C. with the averment that on the basis of all the documents, the act of the petitioners was in the discharge of their official duties. Therefore, cognizance could not be taken without sanction of the State Government. The said application was dismissed. 2. I have perused the impugned order. Learned Judicial Magistrate has taken the view that no document has been filed by the accused persons to establish that they cannot be removed from the service without the permission of the State Government. Therefore, the protection envisaged u/s.197 Cr.P.C. was not available to them. Moreover, preparation of a forged document does not fall within the purview of discharge of official duties. It is un-disputed that the petitioners were Government employees i.e. Dayanand was working as Tehsildar, Sujangarh and Adu Rant was Land Record Officer, Sujangarh at the relevant time. 3. During the enquiry under sections 200 & 202 Cr.P.C., the complainant-Mangilal gave his statement and examined eight witnesses and also produced numerous documents. It will be appropriate here to give the number of facts and allegations brought out in the statements of the witnesses. Mangilal-complainant deposed that boundary wall of his field was existing from a long time in his field. He did not make any encroachment on any 'gocher' land. He was never served with any notice to show cause for any alleged encroachment. Mangilal-complainant deposed that boundary wall of his field was existing from a long time in his field. He did not make any encroachment on any 'gocher' land. He was never served with any notice to show cause for any alleged encroachment. A list of persons Ex.P/1 and Ex.P/2 was prepared regarding encroachment on 'gocher' land which does not include the name Tulchi Ram. His uncle has separated long back and he is not a member of his family. In the memo prepared about removing the encroachment, the accused persons interpolated later on one line that Area Patwari identified the illegal possession. Patwari told him that he had not identified the alleged encroachment by the complainant and his signatures were later on obtained by undue pressure by Tehsildar, petitioner No. 1. He had also revealed that as soon as the memo was kept in the office he obtained certificate copy which did not bear signature of Patwari and that copy is Ex.P/3. Ex.P/4 is the copy of the same memo about removal of encroachment after interpolation of the line about identification which clearly demonstrates that Ex.P/4 has been forged by the petitioners. The Patwari also maintains daily diary in which also he entered in the Portion A to B that he did not identify alleged encroachment by the complainant. This statement of the complainant is supported by all the witnesses including the Patwari Mohan Lal PW 2. On the basis of the above material, the learned Judicial Magistrate took the cognizance as stated above and also rejected the application under section 197 Cr.P.C. holding that the protection was not available to the petitioners because in the above facts and circumstances their act of demolition of boundary wall of the field of the complainant and their preparation of the memo of removal of encroachment forged one was not in the discharge of their official duties. The learned counsel for the respondent and the learned Public Prosecutor has contended that there is no nexus between the act of the petitioners with the discharge of official duties and the evidence recorded during the enquiry of the complainant goes to prima facie establish that the boundary wall of the complainant was removed out of personal enmity because the complainant who is an Advocate had some hot exchanges in the Court of Tehsildar. He also participates in politics and remained Sarpanch. Therefore, the petitioner Nos. He also participates in politics and remained Sarpanch. Therefore, the petitioner Nos. 1 & 2 in the garb of removing the encroachment caused wrongful loss to the complainant by demolishing the wall in the boundary of the complainant's field with the motive to harass, humiliate and defame the complainant. 4. The following cases have been cited about necessity of prior sanction under section 197 Cr.P.C. of the competent authority to initiate action:- 1. In N.K. Ogle v. Sanwaldas Sanwalnial Ahuja, 1999 Cr.L.R. (SC) 184 allegation of theft was made against the Tehsildar. Tehsildar had issued demand for recovery of lease money and on failure to deposit the money of the complainant subsequently issued attachment warrant of the scooter and auctioned it. The scooter was attached when the complainant had appeared in the Court before the Tehsildar. It was held that Tehsildar acted bona fidely and exercised his powers. Therefore, no cognizance could be taken without prior sanction. 2. In Gauri Shankar Prasad v. State of Bihar & Anr., JT 2000 (4) SC 613 the principle has been laid down that the offence alleged against the public servant must have reasonable and rational nexus with official duties required to be discharged by the public servant. In this case, the Sub-Divisional Magistrate was present at the place of occurrence for removal of encroachment and it was alleged that he entered into the chamber and abused the complainant and took the complainant and his wife to police station. It was held that complaint against him had a reasonable nexus with official duty. 3. In Jeewa Rani v. Madan Lal, 1985 RLW 433 the accused persons, Administrator of the Municipal Council, City Magistrate Oversee UIT removed the stall despite the injunction issued by the Civil Court. It was found that the accused person were acting in pursuance of the notice already issued by them. It was held that their intention was not to cause wrongful loss to the complainant. 4. In Karni Singh & Ors. It was found that the accused person were acting in pursuance of the notice already issued by them. It was held that their intention was not to cause wrongful loss to the complainant. 4. In Karni Singh & Ors. v. Dinesh Pappu & Anr., 1991 Cr.L.R. (Raj.) 83 the objection was raised against taking cognizance that after notice encroachment was removed in the official discharge of the duties whereas the complainant's case was that giving beating and demolishing the house do not come in the official discharge of the duties because land of the complainant was different from to the land of the Allah Rakha to whom notice was served. It was observed that the Magistrate took cognizance on finding a prima facie case and the evidence could not be meticulously examined. The accused can take valid defence available to him which can be decided at the appropriate stage. 5. In Tarachand v. State of Rajasthan & Ors., 1995 Cr.L.R. (Raj.) 496 Tehsildar demarcated the boundary between two Khasra numbers for which there was no order by the S.D.O. It was held that the petitioner a Tehsildar was not authorised to commit trespass and his action was not in the discharge of his duties therefore trial Court did not commit any error in taking the cognizance. 6. In 1997 Criminal Law Journal 2491 complainant alleged that accused persons fabricated the signatures, drawn and mis-appropriated the amount payable to him. It was held that fabrication of record and mis-appropriation of public fund by a public servant is not his official duty and sanction under section 197 was not necessary. The order of dismissal of the complaint was set aside. 7. In S. Jayappa v. State of Karnataka, 1999 Cr.L.J. 4475 the public servant fabricated records to show that dam was being constructed and obtained sanction for various sums from the Government and mis-appropriated. The accused did not act in the performance of official duties and sanction for prosecution was not necessary. 8. Again in P. Govinda Bhatt v. State of Karnataka, 1999 Cr.L.J. 4488 agricultural officer mis-appropriated the public funds by committing forgery. It was held that he was not entitled to protection under section 197 as the act was not done under the commission of the official duty. 5. 8. Again in P. Govinda Bhatt v. State of Karnataka, 1999 Cr.L.J. 4488 agricultural officer mis-appropriated the public funds by committing forgery. It was held that he was not entitled to protection under section 197 as the act was not done under the commission of the official duty. 5. The petitioners have filed certain documents in this petition to show that the decision was taken to remove the encroachment in the meeting held on 3.2.1997 in the villages for which also a list was prepared. The encroachment were removed and in number of cases a memo of removal of encroachment was prepared. In the case of removal of encroachment of the complainant, the memo was prepared which is in the name of Tulchi Ram S/o Jaikishan Brahmin R/o Bhimsar, the copy of which has also been filed by the complainant with the allegation that it was been forged by interpolation of one line subsequently to falsely show that the encroachment was identified by Area Patwari which Patwari has refused and also not born out from the entry in the 'Ghatna Bahi'. The same memo did not bear this line at the time of its preparation of which the certified copy was taken by the complainant which has also been produced with the complaint. 6. It is contended by the learned counsel for the petitioners that the petitioners in execution of the decision to remove the encroachment, acted to demolish the wall which was encroachment on the gocher land for which the memo was prepared. The Area Patwari identified the encroachment. It was entirely in the discharge of the official duty and therefore the petitioners enjoyed the immunity or the protection provided under section 197 Cr.P.C. Their act has reasonable nexus with their official discharge of duties. On the other hand, learned counsel for the complainant and learned Public Prosecutor has submitted that there is no nexus at all in the act of the petitioners and the official discharge of duties because the petitioners were not entitled to demolish the wall because it was not encroachment and it was not included in the list of encroachment prepared in their office. It was also not identified by Area Patwari and in order to justify their illegal action and the offence committed by them forged memo of removal of encroachment was prepared by subsequently interpolating the line regarding the identification of the encroachment by the Area Patwari. These facts have been established prima facie by oral and documentary evidence produced during the enquiry. The learned Judicial Magistrate has not committed any error in taking cognizance for the alleged offence. 7. I have given my anxious consideration to the rival submission. Act the stage of taking cognizance the evidence cannot be meticulously scrutinised and appreciated. It has to be scanned in order to see whether a prima facie case is made out against the petitioners for taking cognizance. The petitioners can take their defence and that can be decided at an appropriate stage. The following facts have prima facie emerged from the evidence led during the enquiry : 1. The complainant's name did not exist in the list of the persons making encroachment on the gocher land. If we peruse the list Ex.P/4 even the name of Tulchi Ram S/o Jaikishan Brahmin has not been entered in this list. 2. The wall was demolished and it is said that the alleged encroachment was identified by Area Patwari which has been denied by PW 2 Mohan Lal who has deposed that he prepared the list of encroachments which did not include the name of the complainant or his members of the family. 3. The memo prepared for allegedly removing the encroachment by Tulcha Ram was not prepared in the presence of Area Patwari and it did not bear the signatures and his signatures were obtained the next day on 14.2.1997 by exercising undue pressure and influence by the petitioners. 4. The Area Patwari while recording the events in the 'Ghatna Bahi' particularly on 13.2.1997 has clearly written that he did not at all identify the Khasra Nos. 103 & 263/113 of Tulchi Ram S/o Jaikishan Brahim R/o Bhimsar. Mohan Lal Area Patwari has given,the statement to this effect. 8. It has been alleged by the complainant that despite all this, the wall was demolished in the garb of removing the encroachment due to personal enmity. 9. On the basis of these facts, the learned Judicial Magistrate has taken the cognizance and has refused to provide protection under section 197 of the Act. 8. It has been alleged by the complainant that despite all this, the wall was demolished in the garb of removing the encroachment due to personal enmity. 9. On the basis of these facts, the learned Judicial Magistrate has taken the cognizance and has refused to provide protection under section 197 of the Act. Without any prejudice to the case of the either party it can be gainsaid that there is a material at this stage for taking cognizance against the petitioners for the acts alleged against them which cannot be unquestionably said to have been done in the official discharge of their duty. It is not possible to decide at this stage about the defence taken by the petitioners in view of the above mentioned oral and documentary evidence produced by the complainant. This defence shall be considered and decided at an appropriate stage in view of the material placed before us at this stage the applicability of Section 197 Cr.P.C. is not prima facie attracted in order to provide protection to the petitioners. 10. In view of the above discussion, I am of the view that necessity of sanction under section 197 Cr.P.C. is not even prima facie found necessary because reasonable and rational nexus of the act with the official discharge of the duty is not prima facie made out. The cases relied upon by the learned counsel for the petitioners do not render any assistance in view of the facts of this case. I do not see any reason to interfere in the impugned order. 11. In the result the instant petition under section 482 Cr.P.C. is hereby dismissed. It is further observed that this order will not effect the merits of the case at any later stage or at the stage of final decision.Petition dismissed. *******