Choudhury Parveen Sultana vs State Of West Bengal & Anr

Section 384/506 of the Indian Penal Code. 2

3. The respondent No.2 belongs to the West Bengal

Police Service and was posted as Deputy

Superintendent of Police (D.N.T.) at

Behrampore, District Murshidabad, West Bengal.

On 9th September, 2005, at about 9.15/9.30 in

the morning one Samiul Choudhury, the husband

of the appellant herein, was shot at and

suffered grievous injury to his right eye.

Thereafter, in a statement given by him to the

Inspector in-charge of Behrampore Police

Station, he claimed that the assailants were

the associates of Mohan Lal, Jalal, Kamal,

Babul and Kabir of Zamindar para. On the basis

of the said statement Behrampur Police Station

Case No.348 dated 9.11.2005 was registered

under Sections 326/307/120-B/34 IPC read with

Sections 25/27 of the Arms Act. Subsequently,

the appellant herein filed an application

before the Chief Judicial Magistrate,

Murshidabad, alleging commission of offences

by the respondent No.2 and another punishable

under Sections 387/504/34 IPC and the said 3

complaint was registered as C.R.Case No.543 of

2005.

4. In the aforesaid complaint it was alleged that

on 9.11.2005 Samiul Choudhury was shot at near

his house and thereafter he was admitted to

the Behrampore New General Hospital and police

investigation was started. It was also alleged

that on the pretext of conducting

investigation the respondent No.2 and his co-

accused used to come to the house of the

appellant and on 18th December, 2005 and also

on 19th December, 2005, the respondent No.2

and the other accused came to the house of the

appellant and threatened her husband and

wanted the husband of the appellant to make a

tutored statement and under threat even tried

to obtain his signature on a blank paper. It

was also claimed that the appellant's husband

lodged a complaint with the local police

authorities and higher authorities also but no

action was taken and the appellant was, 4

therefore, compelled to move the Chief

Judicial Magistrate Murshidabad by way of the

said complaint. The learned Magistrate took

cognizance of the offence by his order dated

26.9.2004 and transferred the case to the 2nd

Court of Judicial Magistrate, Behrampore, for

inquiry and trial. After transfer of the case

the appellant and her husband were examined on

solemn affirmation by the learned Magistrate

on 14.2.2006 and summons were directed to be

issued under Sections 384/506 IPC.

5. Being aggrieved by the cognizance taken and

the issuance of process the respondent No.2

moved the High Court under Sections 397/401

read with Section 482 Cr.P.C. for quashing the

cognizance taken and also the issue of

process. The main ground of challenge was

that being in the employment of the State

Government the respondent No.2 enjoyed the

protection of Section 197 Cr.P.C. and that no

Court could take cognizance of the offence 5

alleged to have been committed by the

respondent No.2 except with the previous

sanction of the State Government. It was also

contended that the complaint disclosed that

the offence was alleged to have been committed

by the respondent No.2 during the course of

investigation in connection with Behrampore

Police Station Case No.348 dated 9.11.2005,

and, accordingly, such offence, if at all

committed, had been committed by the

respondent No.2 while discharging official

duties which brought him within the protective

umbrella of Section 197 Cr.P.C. In support of

the aforesaid contention made on behalf of the

respondent No.2 reliance was placed on the

decision of this Court in Sankaran Moitra vs.

Sadhna Das and another [(2006) 4 SCC 584]

wherein after considering various case law on

the subject the majority view was that the

important criteria to be applied with regard

to the invocation of Section 197 of the Code

was that the act complained of must have been 6

performed in discharge of or in the purported

discharge of duty. This Court ultimately, came

to the conclusion that dispensing with

jurisdictional or statutory requirements could

ultimately affect the adjudication itself and

could result in loss of public confidence in

the institution. The High Court was,

therefore, of the view that in the facts of

the case it was quite clear that the

proceedings before the Magistrate had been

vitiated in the absence of sanction having

been obtained for prosecution of the

respondent No.2 in terms of Section 197

Cr.P.C. The High Court, accordingly, quashed

the proceedings and the cognizance taken on

the basis thereof. The appellant is before us

against the said order of the High Court.

6. Mr. Pijush K. Roy, learned advocate who

appeared for the appellant, submitted that

even in Sankaran Moitra's case (supra) this

Court had held that committing a criminal 7

offence, which was not part of the duties of

the officer concerned, could not be said to be

an act performed in the course of discharge of

official duties. Mr. Roy submitted that in

the instant case the acts complained of

against the respondent No.2 could never be

said to have been part of his official duties.

In other words, even if the acts complained of

were done during investigation, it could not

be said that the same were part of the

respondent's official duties and hence the

protection of Section 197 Cr.P.C. was not

available to the respondent No.2.

7. In support of his submissions Mr. Roy firstly

referred to the decision of this Court in

Pukhraj v. State of Rajasthan [AIR 1973 SC

2591] where the same question was dealt with

and it was held that assaulting the

complainant and abusing him when the

complainant came to submit his representation

for cancellation of his transfer could not by 8

any standard be said to be part of the

official duties to be exercised by the

authority concerned.

8. A similar view was taken in Bhagwan Prasad

Srivastava v. N.P. Misra [(1971) 1 SCR 317]

where a complaint had been filed that the

accused, who was a civil surgeon, used

defamatory and abusive words and got the

complainant pushed out by the cook of the

hospital. The question posed was whether the

case was covered by Section 197 Cr.P.C. and

whether previous sanction of the superior

authority was necessary before the trial Court

could take cognizance of the case. In the

facts of the case, this Court was of the view

that the case was not covered by Section 197

Cr.P.C. and that the object and purpose

underlying Section 197 Cr.P.C. to afford

protection to public servant against

frivolous, vexatious or false prosecution for

offences alleged to have been committed by 9

them while acting or purporting to act in the

discharge of their official duty. It was also

observed that the Section 197 has been

designed to facilitate effective and

unhampered performance of their official duty

by public servants by providing for scrutiny

into the allegations of commission of offence

by them by their superior authorities and

prior sanction for their prosecution was a

condition precedent to the taking of

cognizance of the cases against them by the

Courts. It was finally observed that the

question whether a particular act is done by a

public servant in the discharge of his

official duties is substantially one of fact

to be determined in the circumstances of each

case.

9. Reference was also made to the decision of

this Court in the case of Parkash Singh Badal

v. State of Punjab [(2007) 1 SCC 1] where the 1 0 same question was considered and similar

observations were made.

10. Mr. Roy submitted that in the facts of this

case also, since the acts complained of were

not part of the official duties of the

respondent No.2, they did not attract the bar

of Section 197 Cr.P.C. and the Magistrate had

quite lawfully taken cognizance of the

offence and had issued process.

11. Mr. Suchit Mohanta, who appeared for the

respondent No.2 supported the judgment of the

High Court and submitted that since the acts

complained of were alleged to have been

committed during investigation it had been

rightly held by the High Court that the same

had been done in the discharge of official

duties by the respondent No.2.

12. The same stand was taken by Mr. Avijit

Bhattacharjee, appearing for the State of West 1 1 Bengal. He urged that in view of the decision

in Sankaran Moitra's case there was no scope

to contend that the bar under Section 197

Cr.P.C. did not apply to the facts of the

case. Mr. Bhattacharjee submitted that the

acts complained of had been performed by the

respondent No.2 during the course of

investigation, which was part of the official

duties required to be discharged by him and

hence his case came squarely within the

protective umbrella of Section 197 Cr.P.C.

13. Having considered the submissions made on

behalf of the respective parties, we are

inclined to agree with the submissions made by

Mr.Pijush K. Roy on behalf of the appellant.

14. The direction which had been given by this

Court, as far back as in 1971 in Bhagwan

Prasad Prasad Srivastava's case (supra) holds

good even today. All acts done by a public

servant in the purported discharge of his 1 2 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 Srivastava's 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 1 3 respect of prosecution for such excesses or

misuse of authority, no protection can be

demanded by the public servant concerned.

15. In the instant case, certain deeds and acts

have been attributed to the respondent No.2

and another accused, which cannot be said to

have been part of the official duties to be

performed by respondent No.2. Hence, in our

view, the respondent No.2 was not entitled to

the protection of Section 197 Cr.P.C. in

respect of such acts.

16. While dealing with the aforesaid question, the

High Court appears to have been swayed by the

submissions made on behalf of the respondent

No.2 that since in the complaint the acts of

extortion and criminal intimidation were

alleged to have been committed by the

respondent No.2 and co-accused while

conducting investigation in connection with

Behrampore Police Station Case No. 348 dated 1 4 9.11.2005, such offences were purported to

have been committed by the respondent No.2

while discharging official duties.

17. We have already indicated that we are unable

to accept such a view. In our view, the

offences complained of cannot be said to part

of the duties of the Investigating Officer

while investigating an offence alleged to have

been committed. It was no part of his duties

to threaten the complainant or her husband to

withdraw the complaint. In order to apply the

bar of Section 197 Cr.P.C. each case has to be

considered in its own fact situation in order

to arrive at a finding as to whether the

protection of Section 197 Cr.P.C. could be

given to the public servant. The fact

situation in the complaint in this case is

such that it does not bring the case within

the ambit of Section 197 and the High Court

erred in quashing the same as far as the

respondent No.2 is concerned. The complaint 1 5 prima facie makes out offences alleged to have

been committed by the respondent No.2 which

were not part of his official duties.

18. We, accordingly, allow the appeal and set

aside the judgment and order of the High

Court. The trial Court shall proceed with the

trial of all the accused, including the

respondent No.2 herein.

_______________J.

(ALTAMAS KABIR)

_______________J.

(MARKANDEY KATJU) New Delhi Dated : 07.01.2009