JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. Both the criminal miscellaneous petition No. 650 of 2021 and Criminal Revision no. 1228 of 2019 have arisen out of the same cases, hence, both the cases are disposed of by this common judgment. 3. The brief facts of the case is that PCR case no. 973 of 2007 has been filed by the complainant Binod Shanker Jha alleging therein that on 02.12.2007, at about 8.00 PM, the petitioner ordered the co-accused Diwakar Prasad Singh, to open the lock of the house and to take forcible possession thereof. The complainant along with the witnesses of the complaint, opposed the breaking open of the lock of the house, by the petitioner, but the petitioner assaulted the complainant with fists and slaps. The co-accused committed the theft of the stove and took away the troch. The witness Puran Singh, raised hue and cry whereupon the witnesses came to the place of occurrence. The complainant went to Deoghar police station but his FIR was not registered and the police did take any action, hence, he filed the complaint. The cognizance has been taken by learned JMFC, Deoghar, involving the offences punishable under Sections, 323, 448, 379, 34 of IPC. The petitioner filed a petition for his discharge on 30.05.2018 and the co-accused also, filed another separate petition for discharge on 14.05.2018. Learned JMFC, Deoghar vide order dated 12.07.2019, considering the evidence of five witnesses, whose depositions were recorded before charge and the material available in the record against the petitioners, came to the conclusion that there is sufficient materials in the record, which gives rise to the reasonable suspicion of the commission of the alleged offences by the petitioner and rejected the separate discharge petitions of the both the accused persons and fixed the date on 06.08.2019 for framing of charge and directed the petitioner to be physically present on that date. 4. 4. The Criminal Revision No. 1228 of 2019 was filed on 18.09.2019 and during pendency of the said criminal revision, the petitioner of the said Criminal Miscellaneous Petition, filed a petition seeking indulgence of the trial court, to direct the complainant to get sanction of prosecution against the petitioner and in absence of the said prosecution, should not frame the charge, as the petitioner claimed that he being the District Superintendent of Education, Deoghar, is entitled for the protection given under Section 197 of the Cr.P.C. The complainant opposed the prayer of the petitioner by contending that the offence committed by the petitioner has got nothing to do with his official duty as the time of the commission of the offence is 8.00 P.M., hence, no sanction is required. Learned JMFC, Deoghar, considered that the five witnesses have been examined before charge, and the said evidence was closed on 04.06.2018 and the case as on 07.02.2020 when the said order was passed, was pending at the stage of framing of charge and from the record, it appeared to the learned JMFC, Deoghar that the petitioner is avoiding the process and is lingering the case. It appeared to learned JMFC, Deoghar that at the time of commission of the offence, the petitioner, was not discharging his official duty. Learned Magistrate, considering the settled principle of law, in the case of Sankaran Moitra vs. Sadhna Das and Another, (2006) 4 SCC 584 , wherein the Hon’ble Supreme Court of India held that that acts said to be committed by the public servant must be having reasonable connection with the duty sought to be discharged by such public officer and if the act, complained of has no nexus, reasonable connection or relevant to the official act or duty of such public servant and is otherwise illegal, unlawful or in nature of an offence, he cannot get shelter under Section 197 of Cr.P.C and having regard to the facts and circumstances, of the case, formed an opinion that no sanction is required to prosecute the petitioner and rejected the said petition of the petitioner. the petitioner filed Cr. the petitioner filed Cr. Revision No. 30 of 2020 in the court of learned Sessions Judge, Deoghar and learned Sessions Judge, Deoghar vide his order dated 10.02.2021, considered that since the connected matter is pending before Hon’ble High Court in the connected criminal revision, in respect, of the order, by which, the discharge of the petitioner, was rejected, the direction to the complainant to obtain the sanction will lead to multiplicity of the proceeding, resulting to confusion uncalled for. Further learned Sessions Judge, Deoghar taking into consideration the provisions under Section 397 of Cr.P.C, observed that as the same envisages that if a petition under Section 397 of Cr.P.C is made by any person, either to the High Court or to the Sessions Judge, no further application by the same person, shall be entertained by the other court and held that the criminal revision is not maintainable and disposed of the same. 5. Learned counsel for the revision petitioner submits that learned court below failed to exercise its jurisdiction as was vested with it under the law. It was also submitted that learned court below failed to appreciate that no sanction of prosecution has been obtained in the present case from the appointing authority of the petitioner, though the petitioner belongs to cadre of the Jharkhand Educational Services, appointed by the State of Jharkhand and he cannot be removed without the order of the State of Jharkhand. Learned counsel for the revision petitioner next submits that the trial court failed to consider that no case is made out against the petitioner, and the allegation made in the petition, are absurd. 6. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Sankaran Moitra vs. Sadhna Das and Another (supra) wherein, in the facts of that case, the petitioner, being the police officer, used excessive force in course of duty, in the purported performance of his duty and the view of the Hon’ble Supreme Court of India was that the sanction for prosecution was required for proceeding against police officer. Learned counsel for the revision petitioner also relied upon the judgment of a co-ordinate Bench of this Court, in the case of the same petitioner, Shivendra Kumar , who was also an accused in another case, being PCR No. 317 of 2007 wherein the allegation against the petitioner was that while the petitioner was posted as District Superintendent of Education cum District Programme Officer, Deoghar, and the complainant of that case was posted as a Cook in Kasturba Gandhi Residential School, Madhupur, in the district of Deoghar, which was under the administrative control of the petitioner, and the petitioner took action against the complainant of that case, upon receiving a complaint by the girl students and their guardians, and took action against the complainant and finally the services of the complainant was terminated and the complaint in that case, was lodged by the complainant for wrecking vengeance, the co-ordinate Bench of this Court quashed the entire criminal proceeding initiated against the petitioner, hence, it is submitted that the revision be allowed and the impugned order in the Criminal Revision being the order dated 12.07.2019 be quashed and set aside. 7. Learned counsel for the petitioner in Cr.M.P. No. 650 of 2021, on the other hand, relies upon the judgment of the Hon’ble Supreme Court of India in the case of Devinder Singh and Others vs. State of Punjab through CBI, (2016) 12 SCC 87 , Para 39 of which, reads as under: “39. The principles emerging from the aforesaid decisions are summarised hereunder: 39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule. 39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. 39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. 39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits. 39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.” And submits that since the purpose of enactment of Section 197 of Cr.P.C is for the purpose of assuring an honest and sincere officer to perform his duty honestly, to the best of his ability, to further public duty, hence, keeping in view of the undisputed fact, that the petitioner at the relevant time, was the District Superintendent of Education, without sanction of prosecution, learned trial court ought not have proceeded ahead with the case and ought to have directed the complainant to produce the sanction for prosecution against the petitioner, hence, it is submitted that the same having not done, the order dated 07.02.2020, passed by learned JMFC, Deoghar, in PCR Case no. 973 of 2007 as well, as the Cr. Revision, no. 30 of 2020 dated 10.02.2021 be quashed and set aside. 8. Learned Sr. Standing Counsel III appearing for the State submits that vehemently opposes the prayer of the petitioner to quash the order dated 10.02.2021 passed by learned Sessions Judge, Deoghar in Cr. Revision no. 30 of 2020 and the order dated 07.02.2020 passed by learned JMFC, Deoghar in Complaint Case No. 973 of 2007. 9. Having heard the submissions made at the bar, and after going through the materials available in the record, it is pertinent to mention here that in this case, in the trial court, five witnesses have been examined, by the complainant before charge and they have also been cross-examined. 9. Having heard the submissions made at the bar, and after going through the materials available in the record, it is pertinent to mention here that in this case, in the trial court, five witnesses have been examined, by the complainant before charge and they have also been cross-examined. The witness Puran Bhagat, who has been examined as CW1, has categorically, stated inter alia that the petitioner broke open the lock of the house of the informant and trespassing to his house. CW 1 has identified the petitioner, who was present in the court, at the time of examination of CW1 as a witness, to be the person, who assaulted and abused the CW1 and committed theft of stove, torch and bedding etc. In his cross-examination before charge, no question was put on behalf of the petitioner to the CW1, to suggest that the petitioner, acted in discharge of his official duty as public servant and only two questions were put to CW1, to which, he answered that he is the servant of the complainant and he does not know whether any school was running in that house. 10. CW2 – Bijay Chourasiya, CW3-Munindra Nath Jha, CW4-Bhola Prasad Jha, CW5-Binod Shankar Jha have all stated in the evidence before charge, about breaking open the lock and trespassing to the house of the complainant by the petitioner and committing theft of stove, torch and also voluntarily causing hurt to CW1 and not a single question was ever put in their respective cross-examination, to any of the said five witnesses of the complainant who have been examined before charge to even remotely suggest that the petitioner committed the said offences in discharge of his duty as a public servant. So far as the order dated 12.07.2019 passed in Complaint Case No. 973 of 2007 which has wrongly been mentioned as G.R. case no. 973 of 2007, in page no. 73 of the brief because of the apparent printing mistake, learned Magistrate has taken into consideration, the entire material in the record, including the statement of the witnesses and has rightly, observed that there is sufficient material available in the record to proceed against the accused petitioners and the allegation made against the accused petitioner are not groundless. 73 of the brief because of the apparent printing mistake, learned Magistrate has taken into consideration, the entire material in the record, including the statement of the witnesses and has rightly, observed that there is sufficient material available in the record to proceed against the accused petitioners and the allegation made against the accused petitioner are not groundless. It is a settled principle of law, as has been held by the Hon’ble Supreme Court of India in the case of Rajbir Singh v. State of U.P. and Another, (2006) 4 SCC 51 that when FIR makes out a case of the commission of an offence, there cannot be order of discharge and it is also a settled principle of law that at the stage of framing of charge, the Magistrate should not make a roving enquiry to the pros and cons of the matter, and weigh the evidence, as if it is conducting a trial. 11. Now coming to the facts of the case, as already discussed above, all the five witnesses examined before charge, have stated about commission of the offence by the petitioner, constituting the offence punishable under Sections 323, 448 and 379 / 34 of the IPC, this Court does not find any error in the order dated 12.07.2019 passed by the learned JMFC, Deoghar in Complaint Case no. 973 of 2007, hence, this criminal revision, being without any merit is dismissed. 12. So far as the Cr.M.P. No. 650 of 2021, is concerned, it is a settled principle of law that in order to press into service, the protection under Section 197 of Cr.P.C, it has to be shown that act of offence committed, by the public servant was in discharge of his official duty but the perusal of the record reveals that though five before charge witnesses have been examined and they have also been cross-examined before charge but the petitioner has nowhere put any question to any of the witnesses, in their cross-examination that he committed the acts, or omission, for which, he has been prosecuted, in discharge of his official duty. The alleged occurrence took place undisputedly on 02.12.2007 at 8.00 PM and there is no material in the record to suggest that any dispute ever existed between the petitioner and the complainant, in respect of the place of occurrence building and there is no material in the record to suggest that the place of occurrence building was or is a Government building and the same was being grabbed by the complainant. 13. Under such circumstances, this Court finds that the learned JMFC, Deoghar did not commit any illegality in rejecting the prayer of the petitioner, to ask the complainant to obtain sanction for his prosecution and there being no allegation that the petitioner has committed the offence while acting or purporting to act in discharge of his official duty nor the same is the defence of the petitioner, taken during the cross-examination of the witnesses, examined before charge, hence, because of the discussions made above, the criminal miscellaneous petition being without any merit is dismissed. 14. In view of the dismissal of the Criminal Revision no. 1228 of 2019 and Criminal Miscellaneous Petition no. 650 of 2021, the interim order, passed earlier, also stands vacated. 15. The Registry is directed to intimate the authority concerned forthwith.