Judgment P.P. Bhatt, J.—Learned Advocates appearing for the parties have jointly requested that at the time of admission, Special Criminal Application No. 345 of 2007 was ordered to be heard along with Criminal Misc. Application No. 2322 of 2006, but the facts of Criminal Misc. Application No. 2322 of 2006 are different and therefore, both these matters are required to be dealt with separately. Request is granted. 2.0 Special Criminal Application No. 345 of 2007 is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) inter alia challenging the order dated 3rd February 2007, passed in an application filed by the petitioner below Exh. 19 and also, order dated 5th April 2006, passed below Complaint – Criminal Inquiry Case No. 129 of 2004, by the learned Chief Judicial Magistrate, Jamnagar. 3.0 After preliminary hearing of this application, by order dated 23rd February 2007, Rule was ordered to be issued and Ad-interim Relief in terms of Para 7(C) was granted. 4.0 Learned advocate Mr. PR Abhichandani for the petitioner has submitted that the petitioner herein preferred an application dated 2nd November 2006 before the learned Chief Judicial Magistrate, Jamnagar inter alia praying that the petitioner may not be prosecuted without prior sanction, as required under Section 197 of the Code, is granted by the competent authority. The learned Chief Judicial Magistrate, Jamnagar, by order dated 3rd February 2007, rejected the said application by assigning reason that the act performed by the petitioner was not as a part of his duty and therefore, the petitioner was not entitled to get the protection which is provided under Section 197 of the Code. 4.1 The learned advocate for the petitioner has referred to and relied upon Annexure ‘C’, page 43 of the petition and pointed out that the petitioner received instructions from the Superintendent of Police, Jamnagar by its letter dated 2nd September 2004, wherein, the petitioner was directed to make an inquiry and submit Report within ten days. Accordingly, the petitioner inquired into the matter and submitted his Report dated 29th September 2004. The petitioner has also produced Report submitted by him in response to explanation sought by Superintendent of Police pursuant to application made by Chandrasinh Hemantsinh Jhala, whereby allegations were made against the present petitioner, before the Superintendent of Police. Accordingly, the petitioner inquired into the matter and submitted his Report dated 29th September 2004. The petitioner has also produced Report submitted by him in response to explanation sought by Superintendent of Police pursuant to application made by Chandrasinh Hemantsinh Jhala, whereby allegations were made against the present petitioner, before the Superintendent of Police. 5.0 The learned advocate Mr. Buddhbhatti for the Respondent No. 2 has referred to and relied upon the observations made by the learned Chief Judicial Magistrate, while issuance of process against the present petitioner and tried to justify the said order that the learned Chief Judicial Magistrate has rightly and properly dealt with the provision contained in Section 197 of the Code and has also submitted that since the ingredients of the alleged crime were satisfied, the learned Chief Judicial Magistrate passed an appropriate order of issuance of process against the present petitioner. 6.0 Section 197 of the Code is relevant for the purpose, which is reproduced: “197. 6.0 Section 197 of the Code is relevant for the purpose, which is reproduced: “197. Prosecution of Judges and public servants:— (1) When any person, who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction— (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government : [Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a proclamation issued under Clause (1) of Art. 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.]” 6.1 In light of the aforesaid provisions, any Government or public officer, is an accused of any offence, alleged to have been committed by him while acting or purporting to act in discharge of his official duty, no Court shall take cognizance of such offence, except with the previous sanction by the Government. In the instant case, prima facie, on the basis of the material produced by the petitioner along with this application, it appears that the petitioner has acted in his official capacity while discharging his duty. However, learned Chief Judicial Magistrate, Jamnagar has believed that the act or behaviour of the petitioner was not part of his duty and, therefore, the petitioner is not entitled to have protection under Section 197 of the Code. 7.0 Considering the rival submissions and on perusal of the application and other papers attached to the application, it transpires that the petitioner has been entrusted this inquiry by the Superintendent of Police. The letter issued by the Superintendent of Police, Mr. 7.0 Considering the rival submissions and on perusal of the application and other papers attached to the application, it transpires that the petitioner has been entrusted this inquiry by the Superintendent of Police. The letter issued by the Superintendent of Police, Mr. Manoj Shashidhar, addressed to the present petitioner is produced at Annexure ‘C’, page 43, which indicates that the inquiry was entrusted to the present petitioner and he was asked to submit his Report within ten days and accordingly, the petitioner has inquired/investigated the matter and submitted his Report on 29th September 2004, which is produced at Annexure ‘D’. Now, on perusal of order passed by the learned Chief Judicial Magistrate, which is produced at page 25 of the petition and the application preferred by the present petitioner, which is produced at Annexure ‘A’, page 22 and on perusal of the contents of the application, it appears that the important aspect, which is brought before this Court by way of this petition by producing Annexure ‘C’, the letter of Superintendent of Police, Mr. Manoj Shashidhar, was never brought to the notice of the learned Chief Judicial Magistrate. It appears that, for the first time, this fact is brought before this Court and therefore, learned Chief Judicial Magistrate was not having an opportunity to deal with this aspect while deciding the application, exh. 19. Therefore, in the fitness of things, it is required to be referred this matter back to the learned Chief Judicial Magistrate for his reconsideration. 8.0 In view of the above, the application is allowed. The order passed by the learned Chief Judicial Magistrate dated 3rd February 2007 and order dated 5th April 2006 qua the present petitioner (original accused No. 1) are quashed and set aside. The learned Chief Judicial Magistrate shall decide the matter de novo, taking into consideration Annexure ‘C’, ‘D’ and ‘E’ of the present petition i.e. Special Criminal Application No. 345 of 2007 and any other material, which may be produced before him. The petitioner is directed to place the above referred papers/documents before the trial Court. 9.0 Rule is made absolute to the aforesaid extent with no order as to costs. Direct service is permitted. P P P P P