HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.919 of 2004 ORDER: 1. This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure by the petitioner-complainant against order, dated 25.11.2003 passed by the learned Additional Judicial Magistrate of First Class, Yellamanchili, Visakhapatnam District, returning complaint in DD.SR.No.7770 of 2003 on his file. 2. Heard. The allegations made against the respondents/accused in the complaint are as follows: 3. The complainant is a permanent resident of Rajavenkatanagaram and the respondents 3 and 4 (accused 3 and 4) are his cousins. The complainant filed a suit in O.S.No.10/03 for declaration of title and injunction in respect of certain property. He also filed I.A.No.32 of 2003 before the same court against respondents 3 and 4/accused 3 and 4 and their men and obtained temporary injunction in respect of same property. In spite of that the respondents 3 and 4/accused 3 and 4 tried to trespass into the property as they used to do earlier and consequently, the complainant obtained necessary police aid from the Court. However, on 09.10.2003 at about 2.00 p.m., A1 to A6 and A8 and A9 formed into an unlawful assembly and trespassed into the property armed with deadly weapons like knives, axes and sticks and removed 80 R.C.C. poles worth of Rs.8000/- and had taken away them forcibly and also caused damage to the cashew nut garden existing there, by which the complainant in turn got sustained loss of Rs.1,000/- and when the complainant tried to restrain them, they warned him with dire consequences. Hence, he filed the complaint for taking necessary action against the accused for the offences punishable under Sections 447, 427 and 379 IPC. 4. Learned Additional Judicial Magistrate of First Class, Yelamanchili, returned the complaint on the ground that A7 to A9 were police constables/government officials and in order to prosecute them, the complainant would have to obtain sanction under Section 197 Cr.P.C. and for not doing so the complaint was not maintainable, against which, the present revision is preferred. 5. Even though notice was served upon A7 to A9 (R7 to R9) they have not made their appearance in the revision. 6. It is the contention of learned counsel for the petitioner that the question of sanction can be raised at any time and further when the act was done not in the course of their official duties, the question of taking necessary sanction under Section 197 Cr.P.C. from the State Government does not arise at all in respect of which, he has relied upon decision reported in RAJH KISHOR ROY v. KAMLESHWAR PANDEY AND ANOTHER[1]. 7. Therefore, it is to be considered as to whether the order of return of the complaint so far as A7 to A9 are concerned on the said grounds is tenable or not? 8. The allegations made against all the accused got nothing to do with the official duties of all of them including A7 to A9, who are police constables. On the other hand, the allegations made show that they had taken law into their own hands and behaved highhandedly involving in trespassing into the land of the complainant and causing damage to the cashew nut garden existing therein and so on. In the decision cited, it is observed that there can be no dispute on the point that the bar under Section 197 Cr.P.C. is mandatory where the act has been done by the public servant in the course of his service or in discharge of his duty. But under that section no protection can be granted to him if the act complained of is not in connection with the discharge of his official duty and further the same defence can be raised any time during the pendency of a criminal case. 9. Therefore the alleged act of A5 to A6 forming into unlawful assembly and trespassing into the property armed with deadly weapons and removing 80 RCC poles worth Rs.8000/- and so on cannot be termed as their official acts which mandate to obtain necessary sanction under the provision. 10. Accordingly, the Criminal Revision Case is allowed and the impugned order dt.25.11.2003, passed by the Additional Judicial Magistrate of First Class, Yelamanchili, Visakhapatnam District, returning the complaint in DD SR No.7770 of 2003, is hereby set aside. _______________________ G.KRISHNA MOHAN REDDY, J Date:29.06.2011 Rns [1] 2002 SUPREME COURT CASES (Cri) 1423