HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL PETITION No.6058 of 2007 ORDER: This criminal petition is filed by the petitioners-A.1, A3 & A.4 seeking to quash the proceedings initiated against them in C.C.No.402 of 2003 on the file of the II Addl. Judicial Magistrate of First Class, Khammam, for the offences punishable under Sections 294(b), 166, 109, 323, 351, 441, 506 r/w 34 IPC. 2. The facts that led to filing of the present petition, in brief, are that respondents 2 and 3 herein filed a private complaint before the II Addl. Judicial Magistrate of First Class, Khammam, against the petitioners herein and another alleging that they are the owners of an extent of Acs.2-20 Gts. and Acs.7-00 Gts. in Sy.Nos.104 and 105 of Venkatapuram village, Khammam District, respectively. The petitioners are Government servants and on 19.02.2003 they visited the village and increased the Donka by 35 feet by encroaching their land and a portion of two wells and also cutting trees existing in Sy.Nos.104 and 105. When they objected, the petitioners high handedly demolished the structure, increased the width of the Donka, beat and abused them in filthy language and threatened with dire consequences. Immediately, they lodged a complaint with Mudigonda P.S., but the police have not registered any crime. Hence, the private complaint. 3. Heard both sides. 4. It is mainly contended by Sri A. Ravinder Reddy, learned counsel for the petitioners, that the said acts are committed by the petitioners while discharging their duties. When the complaint itself states that the petitioners were discharging their official duties at the relevant point of time, it is necessary for respondents 2 and 3-complainants to obtain necessary sanction, as provided for under Section 197 Cr.P.C. In this connection, the learned counsel has placed reliance on the judgment of the Apex Court in Anjani Kumar V. State of Bihar and another[1]. 5. The learned counsel for respondents 2 and 3- complainants opposed the said submissions stating that from a bare reading of the complaint, it is clear that the petitioners have acceded their official duties and it is not a case of interference. 6. In the light of the contentions put forth by both the counsel, it is necessary to refer to the law that has been laid by the Apex Court from time to time on the issue of sanction, as early as in the year 1967 in P. Arulswami Vs. State of Madras [2] wherein the Apex Court observed as follows: “It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.” 7. Similarly, the Apex Court in B. Saha and others Vs. S. Kochar [3] wherein it was held as follows: “The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, ‘it is no part of an official duty to commit an offence, and never can be’. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision. Use of the expression, ‘official duty’ implies that the act or omission must have been done by the public officer in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.” 8. Also, in the case of Anjani Kumar V. State of Bihar and another, the Apex Court observed as follows: “Under the colour of office, official duty implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wife construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may bean offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therfor then the bar under S.197 is not attracted. Thus if on facts, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of S.197 cannot be disputed.” 9. Keeping the above said principles of law in mind, when this Court looks at the complaint filed by respondents 2 and 3, it is clear that there are specific allegations against the petitioners. Apparently, there is a dispute with regard to the land and the petitioners proceeded to the land and removed the fencing, etc. All this can definitely be said to be “while discharging their official duties”. But, the second part of the complaint, in my considered view, even by a stretch of imagination, cannot be said to be “while discharging their official duties”. The second part reads thus: “When the complainants had objected for such high handed and illegal acts of the accused, the accused No.1 beat the complainants abusing them in filthy language. The remaining accused also abused the complainants in the most vulgar language and drove them from the place of offence, threatening them with dire consequences. The remaining accused pounced on the complainants and beat them mercilessly. The accused abused the complainants in the most vulgar language.” 10. As held by the Apex Court in P. Arulswami Vs. State of Madras, the first part of the aspect i.e. removing of fencing, cutting trees, etc. can definitely be said to be “while discharging their official duties”. But, under the guise of the same, they have no right whatsoever either to beat respondents 2 and 3- complainants or abuse them in filthy language. Whether the said acts have been done or not, is purely a question of fact which has to be gone into by the court below during the course of trial. 11. Further, it is not as though the plea of sanction has to be raised at the threshold. Even during the course of trial, if ultimately, there is no evidence on record establishing the fact that the petitioners have not acceded their limitations, it is always open for them to bring it to the notice of the Court stating that the complaint is without obtaining necessary sanction, as provided for under Section 197 Cr.P.C. Even in the cases, on which the learned counsel has placed reliance, the learned Judges of the Apex Court have referred to all these judgments and in those set of circumstances held that it is one of the rarest of rare cases and thus interfered with the matter. But, from the facts of the case on hand, this Court is of the view that it is not one of the rarest of rare cases where interference is required under Section 482 Cr.P.C. 12. Accordingly, the Criminal Petition is dismissed. However, it is left open for the petitioners to raise the plea of sanction before the court below, as provided for under Section 197 Cr.P.C., at any time during the course of trial, if ultimately there is no evidence. _______________________________ GOPALA KRISHNA TAMADA,J 24th June, 2010 CBS HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL PETITION No.6058 of 2007 (Dsimissed) Date:24-06-2010 CBS [1] AIR 2008 S.C. 1992 [2] AIR 1967 SC 776 [3] 1979(4) SCC 177