Vandana Kasrekar, J. - The petitioner has filed this revision under Section 397 of the Cr.P.C. challenging the order dated 9/04/2010, passed by the Additional Sessions Judge, Mandleshwar in Criminal Revision No.112/2009, arising out of Criminal Case No.134/2003.

2. On 2/03/2001, the petitioner has filed a complaint before the Judicial Magistrate First Class under Sections 452, 323, 353, 294, 509 and 506 Part-2 of IPC. The learned Judicial Magistrate First Class vide order dated 5/02/2003 has dismissed the private complaint as per Section 203 of the Criminal Procedure Code. Against the said order, the petitioner has preferred a revision bearing Criminal Revision No.36/2003 before the Special Sessions Judge, Mandleshwar. The learned Judge, vide order dated 5/02/2003, allowed the said revision and set aside the order passed by the learned Judicial Magistrate First Class and remanded the matter back to the Judicial Magistrate First Class. Against the said order, the respondents no.1 and 2 have preferred a Criminal Revision No.426/2003 before this Court. This Court vide order dated 17/09/2003 has set aside the order passed by the Sessions Judge and remanded the matter back to the Judicial Magistrate First Class for further enquiry into the complaint, in accordance with law.

3. The learned trial Court vide its order dated 27/02/2004 has registered a private complaint under Sections 342, 354, 294 and 506-B of the IPC and issued bailable warrant to the respondents no.1 and 2. Against the said order the respondent no.1 has preferred a Criminal Revision No.48/2004 before the Special Judge. The Special Judge, vide its order dated 7/07/2004 has remanded the matter back to the learned Judicial Magistrate First Class for further proceedings.

4. On 7/04/2004, the trial Court issued bailable warrant to the respondents no.1 and 2. Again a revision was filed by the respondent no.1 vide Criminal revision No.104/2006 against the order dated 7/09/2006. The Sessions Judge, vide its order dated 22/11/2007 has dismissed the said revision and confirmed the order passed by the Judicial Magistrate First Class.

5. On 18/12/2008, the respondent no.1 has filed an application under Section 197 of the Cr.P.C. The applicant/petitioner has filed reply to the said application on 3/01/2009. The learned JMFC vide its order dated 16/07/2009 has rejected the application filed by the respondent under Sections 197 of the Cr.P.C. Against the said order, the respondent no.1 has preferred a revision bearing Criminal Revision No.112/2009 before the 1st Additional Sessions Judge. The learned Sessions Court has allowed the said criminal revision and dismissed the private complaint filed by the petitioner and set aside the order passed by the Judicial Magistrate First Class. Being aggrieved by that order, the petitioner has filed this revision under Section 397 of the Cr.P.C.

6. Learned counsel for the petitioner argues that the order impugned passed by the learned Sessions Judge is illegal and arbitrary. She submits that the provisions of Section 197 of the Cr.P.C. are not attracted in the present case. The act which is alleged to have been committed by the respondent no.1 is not in discharge of his official duties. The alleged offence committed by the respondent no.1 is related to the outrage of the modesty of the petitioner and abused her when no offence ever been registered against her. There is prima facie evidence on record which shows that the act alleged to have been committed by the respondent no.1 had no connection with the discharge of his duties. The prima facie evidence which is recorded at the time of taking cognizance of the complaint shows that the respondent has abused the petitioner and her sister at the time of investigating the offence which cannot be said to be an act committed during the course of his duties. In such circumstances, she submits that the order impugned be set aside.

7. Learned counsel for the petitioner further relied on the judgment passed in the case of Phanindra Chandra Neogy v. The King reported in AIR(36) 1949 Privy Council 117, Bhagwan Prasad Shrivastava v. N.P. Mishra [AIR 1970 SC 1661 ] and Choudhury Parveen Sultana v. State of West Bengal & Anr. reported in AIR 2009 SC 1404 .

8. On the other hand, learned Senior Counsel appearing on behalf of the respondents supports the order passed by the Sessions Judge and submits that the Sessions Court has not committed any error in allowing the revision preferred by the respondent. He further submits that the respondents along with the co-accused has entered into the house for searching the house of the complainant because they have received an information that some illicit liquor is stored in the house of the complainant and, during the course of investigation, the complainant, her sister and her mother tried to stop them from searching the house. The respondents have further denied that they have tried to outrage the modesty of the petitioner as well as her sister. He submits that the said complaint has been registered against them as a counter blast of the offence which is registered against the complainant. In such circumstances, he submits that the revision deserves to be dismissed.

9. Heard learned counsel for the parties and perused the record as well as the order passed by the Courts below.

10. In the present case, a private complaint was filed by the petitioner alleging the commission of offences under Sections 294, 354 and 506 of IPC against the respondents. A bailable warrant was issued against the respondent. After receiving the warrant, the respondents filed an application under Section 197 of the Cr.P.C. stating that at the relevant time, they were working as SDOP, Mandleshwar and are a public servant within the meaning of Section 21 of the IPC, therefore, sanction as provided under Section 197 of Cr.P.C. is required before prosecuting them.

10.1 The learned Judicial Magistrate First Class vide its order dated 16/07/2009 has rejected the said application against which the respondent has preferred a revision before the 1st Additional Sessions Judge, Mandleshwar. The learned Sessions Judge, vide order dated 9/04/2010 has allowed the said revision and set aside the order passed by the Judicial Magistrate First Class. Against the said order, the petitioner has filed the present petition.

11. That, at the time of taking cognizance of the complaint filed by the petitioner, statements of the witnesses have been recorded by the Courts below and all the witnesses they have corroborated the statements made by the complainant that is the petitioner and, thus, there is prima facie evidence against the respondents that they tried to outrage the modesty of the petitioner as well as her sister. The respondent has taken the petitioner to the Police Station forcefully on motorcycle and has also stated that if she disclose this fact to anybody then they will kill her. Thus, this act which is alleged to have been committed by the respondents cannot be said to be an act which is committed by them during discharge of his duties. Therefore, sanction as required under Section 197 of the Cr.P.C. is not necessary before prosecuting the respondent.

12. In the case of Phanindra Chandra Neogy (supra), in Para 4 of its order has held as under :-

"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be, whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office."

13. Similarly, in Para 5 of the case of Bhagwan Prasad Srivastava (supra), the Apex Court has held as under :-

5. The principle embodied in this section seems to be well- understood; the difficulty normally lies is in its application to the facts of a given case. The question whether a particular act is, done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. In the present case the alleged offence consists of the use of defamatory and abusive words and of getting the complainant forcibly turned out of the operation theatre by the Cook. There is nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the performance of his official duty that without so acting he could not have property discharged it.

14. The Apex Court in Para 14 of the judgment of Choudhury Parveen Sultana (supra) has held as under :-

14. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastavas case (supra), the underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned.

15. Thus, as per the judgments cited above, an abuse or power committed by public servant in discharge of his duties cannot be said to be an act committed during discharge of his official duties.

16. Thus, in view of the aforesaid, I allow this revision and the order impugned passed by the Sessions Court is, hereby, set aside and that the order passed by the Judicial Magistrate First Class is restored.

17. With the aforesaid, the criminal revision stands disposed of. Record of the Courts below be sent back immediately to the concerned court.