ORDER
P.C. Jain, J.
1. The complainant-petitioner has filed this petition under Section 397 read with Section 401, Cr. P. C. against the order dated 4-2-1995 passed by Shri Jagpal Singh learned Sessions Judge, Hanumangarh in criminal revision No. 57/91 whereby he accepted the revision petition and quashed the order dated passed by the learned Judicial Magistrate No. 1, Hanumangarh in criminal case No. 7/91.
2. The brief facts, relevant for the disposal of this petition, may be stated as follows. The complainant-petitioner filed a private complaint against Somdut non-petitioner No. 2 herein with the allegations that at the relevant time elections in respect of Directors of Rampuria Gram Seva Sahakari Samiti Limited were being held. He was one of the candidates. It is alleged that non- petitioner No. 2, dead drunk, came there and objected as to why the complainant was sitting in the school building. The complainant explained that since he was candidate, his presence there was necessary. Thereupon the non-petitioner No. 2 lost his temper and indulged in filthy abuses and started assaulting the complainant and dragged him out of the school building. The complainant wanted to lodge a report at the appropriate police station but his report was not taken. He, therefore, filed the private complaint. Before the Court, the complainant examined himself and produced Mahaveer, Ramdas, Balram and Sukhwant Singh. Thereupon the learned Magistrate found a prima facie case against the non-petitioner No. 2 for offences under Sections 323 and 504, I. P. C. He, therefore, ordered for the registration of the case and summoning non- petitioner No. 2 by summons. Feeling aggrieved by the above order of the trial Magistrate, the non-petitioner No. 2 filed a revision petition and challenged the cognizance taken by the trial Magistrate on the ground that since at the relevant time he was an observer and as such a public servant. No cognizance could have been taken against him in view of the bar contained in Section 197, Cr. P.C. The above acts alleged against the non- petitioner No. 2 were admittedly committed while non-petitioner No. 2 was performing his duty as the aforesaid observer in the capacity of the public servant. The learned Sessions Judge accepted the above argument. He stated that non- petitioner No. 2 also lodged a complaint against the complainant and others. He also observed that no injury report was produced in support of the alleged assault. He, therefore, accepted the revision petition and quashed the order dated 20-6-1991 of the trial Magistrate.
3. I have heard learned counsel for the petitioner and the non-petitioners. ,
4. Learned counsel for the petitioner has contended that few facts are not in dispute that at the relevant time the complainant-petitioner was contesting the election of the Director of the said Samiti and that non-petitioner No. 2 was an observer. He has also not disputed that in that capacity non-petitioner No. 2 was a public servant. However, his main grievance is that the learned Sessions Judge erroneously held that the above acts were performed by non-petitioner No. 2 in the capacity of a public servant and hence the bar under Section 197, Cr. P. C. would apply. The important question for determination before the learned Sessions Judge was whether it was within the province of the official duty of non-petitioner No. 2 to have indulged in abusive language and resorted to assault against the complainant-petitioner. According to the learned counsel it was not the official duty of non-petitioner No. 2 to have indulged in assault and abusive languages particularly when the complainant-petitioner was within his right to be present in the school building where the elections were being held. Learned counsel has placed reliance on the following cases :
5. Prabhakar v. Shanker AIR 1969 SC 686 : 1969 Cri LJ 1057, Harkishan Satpathy y. Maheshwar Sahoo 1989 Cri LJ (NOC) 77 (Orissa) and Pukhraj Ji v. State of Rajasthan 1973 Cri LR (SC) 623 : 1973 Cri LJ 1795.
6. Learned counsel for the non-petitioners has supported the order of the learned Sessions Judge. He has submitted that non-petitioner No. 2 went to the petitioner while exercising the powers of an observer. He interrogated the petitioner in that capacity. Even if the non-petitioner No. 2 is guilty of excessive indulgence in official duty, the official colour cannot be taken out from the acts complained of by the complainant-petitioner.
7. I have considered the rival contentions. A perusal of the provisions of Section 197, Cr. P. C. shows that the act complained of against the official must be an offence and there must be a reasonable connection between the act complained of and the duty of the officer as a public servant, so that, if questioned, the officer can reasonably profess to have done the act in exercise or in purported exercise of his official duty, but it still remains to be in exercise or purported exercise of his official duty, if the connection between the act and the official duty is a reasonable one and not merely formal one. The official position should not be used as a mere cloak to defend the act complained of. In Crux, the public servant can only be said to act or purport to act in the discharge of his official duty if his act is such as to be within the scope of his official duty. In Prabhakar v. Shanker 1969 Cri LJ 1057 (supra) the Apex Court made the following observations (at p. 1060) :-
What has to be found out is whether the act and the official duty were so interrelated that one could postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation. It is not every offence committed by a public servant which required sanction for prosecution under Section 197(1) nor even every act done by him while he was actually engaged in the performance of his official duties. But if the act complained of was 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 and that would be so, irrespective of whether it was in fact, a proper discharge of his duties or not.
8. In Pukhraj Ji v. State of Rajasthan 1973 Cri LJ 1795, the Post Master General, a public servant, was alleged to have kicked the complainant and also abused him. It was held that it is difficult to say that the acts complained of could be said to have been done in the course of performance of second respondent’s duty.
9. In the instant case I feel no hesitation in concluding that it was none of the official duty of non-petitioner No. 2 to have indulged in abusive language with the complainant and to have assaulted him. Though it may be correct that non- petitioner No. 2 started the matter by interrogating the complainant regarding his presence in the school building but after that non-petitioner No. 2 transgressed his official limit and indulged in abuses and assault. These acts cannot be said to be interrelated with his official duty in any manner. The learned Sessions Judge was therefore, not right in quashing the order of taking cognizance against the non-petitioner No. 2.
10. I, therefore, accept the revision petition, set aside the order of the learned Sessions Judge and restore that of the trial court. However, the Magistrate will be at liberty to take a different view in respect of this matter after recording evidence of the parties during trial.