Judgment ( 1. ) THE instant petition is for quashing the criminal proceeding in Criminal case No. 188/04 pending in the Court of JMFC, Kolaras which has been registered against the petitioner for the offence punishable under Sections 220 and 500 of IPC. ( 2. ) DURING the course of arguments, both the parties have admitted the following facts:- (A) That one private complaint has been filed by the respondent against the petitioner, who at the relevant time was posted as sdm/sdo at Kolaras, on the following allegation mentioned in paras 2 and 3 of the complaint- (B) That after recording of the statements of the respondent / complainant and her 3 witnesses, vide order dated 30th October, 1995, the complaint was registered under the aforementioned offences. (C) That feeling aggrieved, aforementioned order was impugned by the petitioner and vide order dated 25th June, 1996 passed in criminal Revision No. 93/95 by the 1st ASJ, Shivpuri, the revision was dismissed, however, an opportunity was given to the petitioner to raise the objection under Section 197 of Cr. PC before the learned Magistrate, if he so chooses. (D) That, thereafter an application was filed by the petitioner before the learned Magistrate under Section 197 of Cr. PC alongwith Section 3 of the Judges Protection Act, 1985 (hereinafter referred to as the Act ). Vide order dated 21-5-04, the same was rejected by the learned JMFC on the ground that he has already passed an order and review of the same is not permissible. (E) That again feeling aggrieved by the aforesaid order, the petitioner filed criminal revision which has also been dismissed by the II nd ASJ, Shivpuri vide impugned order dated 22-7-04 affirming the order passed by the learned Magistrate. Feeling aggrieved, the petitioner has filed the present petition. ( 3. ) THE relevant part of the definition of defamation given in Section 499 of IPC goes as under:- "499. Defamation.- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Defamation.- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. " (Emphasis Supplied)Thus, it appears that a defamation can be committed by the words either spoken or intended to be read or by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, that person. The main ingredient is that, the alleged act is to be done by the accused with intention that it is to be known by the others. Without this intention, offence of defamation punishable under Section 500 of IPC is not made out. On perusal of the allegations as mentioned in the aforementioned relevant paragraphs of the complaint, this intention of the petitioner does not appear anywhere. As per the " allegation, in the chamber of the petitioner, he extended alleged proposal which was not accepted by the complainant. Neither it can be the intention of the petitioner that others should know it, so that the respondent can be defamed nor can it be presumed in the matters of such alleged act. As this important ground does not exist, framing charge against the petitioner for the offence punishable under Section 500 of the IPC appears erroneous. ( 4. ) THE offence of Section 220 of IPC has been described as under:-220. Commitment for trial or confinement by person having authority who knows that he is acting contrary to law.- Whoever, being in any office which gives him legal authority to commit persons for trial or to commitment, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Admittedly, the petitioner was having authority to commit the son of the respondent to confinement under Section 151 of Cr. PC. Admittedly, the petitioner was having authority to commit the son of the respondent to confinement under Section 151 of Cr. PC. It is also admitted that he committed the son of the respondent to confinement under aforesaid provisions when he was presented before him by the police. It is not disputed that the petitioner, at the relevant time, was a public servant not removable otherwise than by the orders of the Govt. It is not disputed that this fact of sending the son of the respondent in confinement under Section 151 of Cr. PC was done by the petitioner in the discharge of his official duty as it was integrally connected with the duty of the petitioner as such public servant and the same is having direct nexus to his public duties. ( 5. ) AFTER this first part of the act of the petitioner, his second part came into existence. The son of the respondent was to be released or not to be released on bail, was a matter within the discretion of the petitioner and for this discretion he demanded from the respondent her favour as alleged. Whether this act of the petitioner can be termed as an integral part of his duty as such public servant ? Whether, after completing the first part of his duty, as mentioned herein above, he kept the son of the respondent in confinement with this ulterior motive of getting the illegal favour of respondent. If the petitioner kept the son in the confinement with this ulterior motive, then further two questions arise (1) Whether this act of the petitioner is covered by the offence under Section 220 of IPC, which is a question of fact and is to be decided by the court after trial. (2) Whether, this act of demanding the alleged favour from respondent, which is clearly illegal and undue, can be termed as an integral part of the official act of the petitioner as such public servant ? My considered conscious is that no public servant, who is discharging his duties as such public servant, can be expected to demand such illegal gratification. Demanding illegal gratification for passing an order or using discretion in favour of a party, can never be an act covered under the duties of a public servant. ( 6. My considered conscious is that no public servant, who is discharging his duties as such public servant, can be expected to demand such illegal gratification. Demanding illegal gratification for passing an order or using discretion in favour of a party, can never be an act covered under the duties of a public servant. ( 6. ) THE Apex Court in the case of Centre for Public Interest Litigation and another Vs. Union of India and another, (2006) 1 SCC (Cri) 23, as cited by shri Sharma, has observed in Para 9, which is worth quoting:-"9. The protection given under Section 197 is to protect responsible public servants against institutions of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. " as observed by the Apex Court, while discharging duties, act done in excess, is also covered under Section 197 of Cr. PC, however, demanding illegal gratification in the shape of such alleged favour or otherwise can never be said that it is an excess committed by a public servant, while discharging his official duties. In the present case, had the petitioner continued the confinement for some more time or imposed certain exorbitant conditions for bail/bond, such act could have been termed as an excess committed by him and would have been protected under Section 197, Cr. In the present case, had the petitioner continued the confinement for some more time or imposed certain exorbitant conditions for bail/bond, such act could have been termed as an excess committed by him and would have been protected under Section 197, Cr. PC But demanding undue or illegal favour, as alleged, can neither be termed as integral part of the duties nor an act committed in excess in discharging of such duties by him. ( 7. ) IN the cases of Centre for Public Interest Litigation and another Vs. Union of India, (2006) 1 SCC (Cri.) 23 and K. Kalimuthu Vs. State, 2005 SCC (Cr.) 1291, the Apex Court has observed that the test for seeking connection or nexus in the alleged act with the official duty, is whether omission or neglect to do that act could have been brought on him, the charge of dereliction of his official duties. Applying this test, had there been an omission of demand of such favour from respondent on the part of the petitioner, he would have not been charged for dereliction of his official duties. In view of this, neither the alleged act of the petitioner has a reasonable connection or nexus with the alleged act with his official duties nor sanction under Section 197 of Cr. PC is required for tacking cognizance. ( 8. ) SHRI Rathore has sought support on the following judgments and vehemently argued that sanction under Section 197 is very much required in this (A) In the case of Matajog Dobey Vs. H. C. Bhari reported in (S) AIR 1956 SC 44 (V. 43 C. 12 Jan.), during a raid, the police personnels collected the books and tied the bundles thereto. When it was objected by the complainant, he was assaulted. A complaint was filed against the police officers. In the facts of the case, it was observed that the police officers under the belief that they had right to get rid of obstruction then and there by binding down the books of the complainant or removing them from the place, might be mistaken, but surely it could not be said that their act was necessarily malafide and so entirely divorced from or unconnected with the discharge of their duty. (B) In the case of Somchand Sanghvi Vs. (B) In the case of Somchand Sanghvi Vs. Bibhuti Bhusan chakravarty, reported in AIR 1965 SC 588 , the Assistant commissioner of Police, while entertaining a bail application of an accused under Sections 420 and 420/120-B of IPC refused the bail unless he settled the matter with the complainant and pay him his amount. (C) In the case of Director of Inspection and Audit and others Vs. C. L. Subramaniam, reported in AIR 1995 SC 866 , in the case of two writ petitions by subordinate officer. His senior officers filed counters with averment against him. A complaint was filed by the subordinate officer for defamation under Section 500 of IPC. It was observed that the act of the senior officers was in the discharge of their official duties. (D) He further relied on Abdul Wahab Ansari Vs. State of Bihar and another, reported in (2000) 8 SCC 500 . There was a dispute between two Muslim groups. One police officer wanted to remove encroachment as there was promulgation of an order under Section 144 of Cr. PC. Next day, a mob of persons armed with weapons started hurling stones. When situation became out of control, the police officer ordered for opening fire. One person died and some got injured. It was observed that the act of the police officer was in the discharge of his official duty. (E) In the case of State of Orissa through Kumar Raghvendra Singh and others Vs. Ganesh Chandra Jew, reported in (2004) 8 SCC 40 , police officers arrested the complainant on the charge that he was having elephant tusks. A complaint was filed by him under Sections 341, 323, 325, 506 and 386 of IPC on the allegation that during arrest he was assaulted by the police officers. (F) In the case of Rakesh Kumar Mishra Vs. State of Bihar and others, reported in (2006) 1 SCC 557 , police officers searched the house of the complainant. In search of his son who was an accused, no substantial material was found. Complaint was filed by the complainant that the search was based on malice. (G) In the case of Sankaran Moitra Vs. Sadhna Das and another, reported in (2006) 4 SCC 584 , during assembly elections, deceased, a member of one of the political parties, distributing food packets to the workers. The same was objected by the police personnels deputed therein. Complaint was filed by the complainant that the search was based on malice. (G) In the case of Sankaran Moitra Vs. Sadhna Das and another, reported in (2006) 4 SCC 584 , during assembly elections, deceased, a member of one of the political parties, distributing food packets to the workers. The same was objected by the police personnels deputed therein. He was chased and beaten, hence, he died. In all aforementioned cases, it has been observed that the alleged act was done by the petitioners/accused in the discharge of their official duties. 8-A. In some of the cases, it has been observed that although the action was, in excess than it was required, however, it was observed that sanction under section 197 of Cr. PC was necessary before taking cognizance. The facts of the present case are totally different, hence, the observations made in the aforementioned cases cannot fruitfully be utilized in support of the contention of Shri Rathore. ( 9. ) SECTION 3 (1) of [the] JUDGES (PROTECTION) ACT, 1985 goes as under:- 3. Additional protection to Judges. (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. (Emphasis Supplied)As observed hereinabove, the alleged act of the petitioner cannot be termed as the same was done by him in acting or purporting to act in the discharge of his official or judicial duty or function. The contention of Shri rathore, in this count is also negated. 9-A. Shri Rathore has drawn attention on a judgment delivered by another Single Bench of this Court in Balram Vs. Aswani Kumar Yadav, tahsildar, reported in 2001 (2) M. P. H. T. 330 = 2001 (II) MPWN 154, in which it has been observed that Nayab Tehsildar while passing an order under Section 110 (4) of M. P. Land Revenue Code is a judge and entitled to protection under section (3) (1) of the aforementioned act. Aswani Kumar Yadav, tahsildar, reported in 2001 (2) M. P. H. T. 330 = 2001 (II) MPWN 154, in which it has been observed that Nayab Tehsildar while passing an order under Section 110 (4) of M. P. Land Revenue Code is a judge and entitled to protection under section (3) (1) of the aforementioned act. In this case Nayab Tehsildar had passed an order under aforementioned provisions of the M. P. Land Revenue code and the allegation against him was that he also added and abetted the crime committed by one Ramesh Kumar, the main accused. The facts, being different, this observation cannot help the contention of Shri Rathore that the petitioner is also entitled to such protection. ( 10. ) AS observed hereinabove, whether the alleged act is covered under section 220 of IPC or not, the same can be decided after recording of the evidence during trial. No observation on this point is required at this stage. But in my considered opinion, the learned Magistrate has committed an error in not paying attention to the provisions of Sections 351/354 and 509 of IPC. On perusal of the allegation,prima facie, it appears that the offence under Sections 354 and 509 of IPC is also made out against the petitioner for the same he could have been charged. Learned Magistrate may hear the parties and to pass appropriate order in this regard. ( 11. ) IT would not be out of reference to mention, that despite reporting the matter by the respondent to the higher authorities supported by an affidavit, no appropriate steps were taken or made known to the respondent. Vide Para 4 of the complaint, it appears that the respondent had sent a complaint in the shape of an application duly supported by an affidavit to higher administrative officers. Vide Para 4 of the order dated 30-10-95, passed by the learned magistrate, it also appears that the copies of the aforementioned complaint alongwith an affidavit on 17-08-05 were sent to the higher authorities but no action has been taken till date. Although these two documents have not been filed by any of the parties before this Court yet by this observation of the learned magistrate, their existence does not remain in dispute. It is further observed by the learned Magistrate that this complaint was sent to the Chief Minister, collector and other officers. Although these two documents have not been filed by any of the parties before this Court yet by this observation of the learned magistrate, their existence does not remain in dispute. It is further observed by the learned Magistrate that this complaint was sent to the Chief Minister, collector and other officers. The complaint, if it is made by the respondent to the aforementioned higher authorities with regard to the aforementioned alleged allegations by a woman against a responsible officer of the State, it was expected from the authorities to take effective steps by them and also to inform the respondent. Had there been effective steps taken by the authorities, there could have been chances of avoiding the complaint to the Court. ( 12. ) ON perusal of the copy of the order sheet dated 21-09-94, it appears that after recording the statement of the complainant, a report was called from the Police Station, Kolaras. Vide order sheet dated 29-09-95, it appears that report was not sent by the police. By way of compulsion, it was directed by the learned Magistrate to write to the Superintendent of Police. However, it is not clear on record as to whether this communication was sent and/or received by the S. P. or not ? However, in absence of the appropriate steps, the respondent has been compelled to involve herself in the litigation, to file the complaint and thereby increased the burden of the Court also. To my surprise, despite writing the matter to the Superintendent of Police, the lawful order of the Court was not complied with by the police authorities. On perusal of the provision of Sections 156 (3) and 202 of Cr. PC, a Magistrate is empowered to direct the police to investigate into the matter and to submit the report. At this stage, it is not required to observe as to whether the order dated 21-09-94 passed by the learned Magistrate directing the police to investigate and submit the report, was covered under Section 156 (3) or 202 of Cr. PC. It is suffice to observe that in whatever the provisions this order is covered, it was the binding duty of the police to comply the order of the Magistrate and to submit the report. Noncompliance of the same is a punishable offence under Indian Penal Code as well as under the Police Act and Regulations. PC. It is suffice to observe that in whatever the provisions this order is covered, it was the binding duty of the police to comply the order of the Magistrate and to submit the report. Noncompliance of the same is a punishable offence under Indian Penal Code as well as under the Police Act and Regulations. It is not required for this Court to observe at this stage as to what, if any, the offence was committed. It is left to the magistrate to decide. I cannot resist to observe that despite non-compliance of the order of the Magistrate by the police, the learned Magistrate did not take any legal action against the erring police officers. By issuance of show-cause notice to the erring police officers including Superintendent of Police, in case, the order was served on him, explanation was to be obtained and in case no explanation was received or found not satisfactory, it was required for the learned Magistrate to order for lodging of a criminal prosecution against the erring officers in accordance with law as per the procedure laid down in Cr. PC. As the case will remain pending before the learned Magistrate for trial, it is for the learned Magistrate to decide as to whether any action requires now or not. ( 13. ) THE petition is also for quashing the criminal proceedings based on complaint as a whole. In this regard, Shri Rathore, learned Counsel for the petitioner has argued that the complaint has been filed after a period of one month, hence, the truthfulness of the allegations is doubtful. It is true that with regard to the incident happened on 17-8-95, this complaint has been filed on 21-9-95, but as observed hereinabove the respondent had immediately taken steps and reported the matter to the higher authorities by way of complaint in the shape of an application duly supported by an affidavit. As such, at this stage, this delay neither can be considered as fatal for the prosecution nor on this count, the complaint is required to be quashed. ( 14. ) IN view of the above discussion, the petition is allowed so far as the offence punishable under Section 500 of IPC is concerned and Criminal Case no. 188/04 is quashed with regard to this offence. For the rest, the petition is disposed of with the aforementioned observation. Misc. Cr. Case allowed.