Choudhury Parveen Sultana v. State Of West Bengal And Another

Altamas Kabir, J.— Leave granted.

2. The short point involved in this appeal is whether in view of Section 197 of the Code of Criminal Procedure, previous sanction of the State Government was necessary for prosecuting Respondent 2, Sahabul Hussain, under Sections 384/506 of the Penal Code, 1860.

3. Respondent 2 belongs to the West Bengal Police Service and was posted as Deputy Superintendent of Police (DNT) at Behrampore, District Murshidabad, West Bengal. On 9-9-2005, 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.

4. Subsequently, the appellant herein filed an application before the Chief Judicial Magistrate, Murshidabad, alleging commission of offences by Respondent 2 and another punishable under Sections 387/504/34 IPC and the said complaint was registered as CR Case No. 543 of 2005. 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 Behrampore New General Hospital and police investigation was started. It was also alleged that on the pretext of conducting investigation Respondent 2 and his co-accused used to come to the house of the appellant and on 18-12-2005 and also on 19-12-2005 Respondent 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.

5. 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, 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 IInd 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.

6. Being aggrieved by the cognizance taken and the issuance of process Respondent 2 moved the High Court under Sections 397/401 read with Section 482 CrPC 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 Respondent 2 enjoyed the protection of Section 197 CrPC and that no court could take cognizance of the offence alleged to have been committed by Respondent 2 except with the previous sanction of the State Government.

7. It was also contended that the complaint disclosed that the offence was alleged to have been committed by Respondent 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 Respondent 2 while discharging official duties which brought him within the protective umbrella of Section 197 CrPC.

8. In support of the aforesaid contention made on behalf of Respondent 2 reliance was placed on the decision of this Court in Sankaran Moitra v. Sadhna Das (2006) 4 SCC 584 wherein after considering various case laws 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 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 Respondent 2 in terms of Section 197 CrPC. 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.

9. Mr Pijush K. Roy, learned advocate who appeared for the appellant, submitted that even in Sankaran Moitra case (2006) 4 SCC 584 this Court had held that committing a criminal 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 Respondent 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 CrPC was not available to Respondent 2.

10. In support of his submissions Mr Roy firstly referred to the decision of this Court in Pukhraj v. State of Rajasthan (1973) 2 SCC 701, 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 any standard be said to be part of the official duties to be exercised by the authority concerned.

11. A similar view was taken in Bhagwan Prasad Srivastava v. N.P Mishra (1970) 2 SCC 56, (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 CrPC 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 CrPC and that the object and purpose underlying Section 197 CrPC is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty.

12. It was also observed in Bhagwan Prasad Srivastava case (1970) 2 SCC 56, (1971) 1 SCR 317 that 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 the facts to be determined in the circumstances of each case.

13. Reference was also made to the decision of this Court in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1 where the same question was considered and similar observations were made.

14. Mr Roy submitted that in the facts of this case also, since the acts complained of were not part of the official duties of Respondent 2, they did not attract the bar of Section 197 CrPC and the Magistrate had quite lawfully taken cognizance of the offence and had issued process.

15. Mr Suchit Mohanta, who appeared for Respondent 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 Respondent 2.

16. The same stand was taken by Mr Avijit Bhattacharjee, appearing for the State of West Bengal. He urged that in view of the decision in Sankaran Moitra case (2006) 4 SCC 584 there was no scope to contend that the bar under Section 197 CrPC did not apply to the facts of the case. Mr Bhattacharjee submitted that the acts complained of had been performed by Respondent 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 CrPC.

17. 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.

18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava case (1970) 2 SCC 56, (1971) 1 SCR 317 holds good even today. 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 CrPC. 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 case (1970) 2 SCC 56, (1971) 1 SCR 317 the underlying object of Section 197 CrPC is to enable the authorities to scrutinise 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 CrPC and have to be considered dehors 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.

19. In the instant case, certain deeds and acts have been attributed to Respondent 2 and another accused, which cannot be said to have been part of the official duties to be performed by Respondent 2. Hence, in our view, Respondent 2 was not entitled to the protection of Section 197 CrPC in respect of such acts.

20. While dealing with the aforesaid question, the High Court appears to have been swayed by the submissions made on behalf of Respondent 2 that since in the complaint the acts of extortion and criminal intimidation were alleged to have been committed by Respondent 2 and the co-accused while conducting investigation in connection with Behrampore Police Station Case No. 348 dated 9-11-2005, such offences were purported to have been committed by Respondent 2 while discharging official duties.

21. We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to be 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 CrPC 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 CrPC 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 Respondent 2 is concerned. The complaint prima facie makes out offences alleged to have been committed by Respondent 2 which were not part of his official duties.

22. 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 Respondent 2 herein.