CHOUDHURY PARVEEN SULTANAversusSTATE OF WEST BENGAL AND ANR.

                     [2009] 1 S.C.R. 99


            CHOUDHURY PARVEEN SULTANA                           A
                              v.
          STATE OF WEST BENGAL AND ANR.
             (Criminal Appeal No. 8 of 2009)

                     JANUARY 7, 2009
                                                                B
   [ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]

     Code of criminal Procedure, 1973 - s. 197 - Protection
under - Availability of - Intimidation by police official - In the
course of investigation - Complaint against - Cognizance of, C
taken by Magistrate - High Court quashing the proceedings
holding that prior sanction u/s. 197 requir:ed before initiation
of criminal proceedings, since the offence committed during
discharge of official duties - On appeal, held: Protection uls.
197 is not available if the public servant misuses or exceeds D
its authority- On facts, acts done by the public servant cannot
be said to be part of official duty - Hence, protection not
available - Penal Code, 1860 - ss. 3841506.

     Appellant filed a complaint before Judicial Magistrate     E
alleging that respondent No. 2 (a Deputy Superintendent
of Police) during investigation of a criminal case lodged
at the instance of her husband, threatened her husband
asking him to withdraw the complaint. The Magistrate
took cognizance of the matter and issued summons u/s.
3841506 IPC.                                                    F

   Respondent· No. 2 moved High Court seeking
quashing of the cognizance and issue of process. High
Court quashed· the proceedings on the ground that the
Magistrate could not have taken cognizance without prior        G
sanction u/s. 197 Cr.P.C. as the alleged offence was
committed in the course of discharge of his official duty.
Hence the present appeal.

                             99                                 H
    100        SUPREME COURT REPORTS           [2009] 1 S.C.R.


A         Allowing the appeal, the Court

       HELD: 1.1. 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. The underlying object of
8
  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. If the
c 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
D perform. Hence, in respect of prosecution for such
  excesses or misuse of authority, no protection can be
  demanded by the public servant concerned. [Para 14)
  (106-8-F)

E      1.2 In the instant case, certain deeds and acts have
  been attributed to 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,
  respondent No.2 was not entitled to the protection of
F Section 197 Cr.P.C. in respect of such acts. It was not 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
G 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 Cr.P.C. [Paras 15 and
  17) (106-F-G; 107-C-D]

H         Pukhraj v. State of Rajasthan AIR 1973 SC 2591;
CHOUDHURY PARVEEN SULTANA v. STATE OF WEST 101
             BENGAL AND ANR.

Bhagwan Prasad Srivastava v. N.P. Misra (1971) 1 SCR 317 A
and Parkash Singh Badal v. State of Punjab (2007) 1 SCC
1, relied on.

     Sankaran Moitra vs. Sadhna Das and Anr. (2006) 4 SCC
584, referred to.
                                                               B
                        Case Law Reference:

    (2006) 4    sec 584        Referred to.        Para 5

    AIR 1973 SC 2591           Relied on.          Para 7
                                                               c
    (1971) 1 SCR 317           Relied on.          Para 8

    (2001) 1    sec 1          Relied on.          Para 9

    CRIMINAL APPELLATE JURISDICTION: CrilT)inal Appeal
No. 8 of 2009.                                         D
    From the final Judgment and Order dated 30.8.2006 of the
High Court at Calcutta in C.R.R. No. 786 of 2006.

    Pijush K. Roy and Sunil Kumar Verma for the Appellant.
                                                               E
    Suchit Mohanta, Amit Sharma, Anupam Lal Das, Avjit
Bhattacharjee and Saumya Kundu for the Respondents.

    The Judgment of the Court was delivered by

    Al TAMAS KABIR,J. 1. Leave granted.                        F

    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 the respondent No.2, Sahabul Hussain, under G
Section 384/506 of the Indian Penal Code.

     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 H
    102         SUPREME COURT REPORTS                [2009] 1 S.C.R.


 A 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 8ehrampore Police Station, he claimed that the
   assailants were the associates of Mohan Lal, Jalal, Kamal,
,8 Babul and Kabir of Zamindar para. On the basis of the said
   statement 8ehrampur Police Station Case No.348 dated
   9.11.2005 was registered under Sections 326/307/120-8/34
   IPC read with Sections 25/27 of the Arms Act. Subsequently,
   the appellant herein filed an application before the Chief Judicial
 c Magistrate, Murshidabad, alleging commission of offences by
   the respondent No.2 and another punishable under Sections
   387/504/34 IPC and the said complaint was registered as C.R.
   Case No.543 of 2005.

         4. In the aforesaid complaint it was alleged that on
D   9.11.2005 Samiul Choudhury was shot at near his house and
    thereafter he was admitted to the 8ehrampore 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
E   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
F   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, therefore, compelled to move the Chief
    Judicial Magistrate Murshidabad by way of the said complaint.
G   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
H   14.2.2006 and summons were directed to be issued under
      CHOUDHURY PARVEEN SULTANA v. STATE OF WEST 103
           BENGAL AND ANR. [ALTAMAS KABIR, J.]
      Sections 384/506 IPC.                                              A

             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. 8
       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 alleged to have been committed by
       the respondent No.2 except with the previous sanction of the C
       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 D
       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 sec 584) wherein after considering E
       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 performed in discharge of or in the purported
      discharge of duty. This Court ultimately, came to the conclusion F
      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 G
      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.              H
    104       SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A       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 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
B 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 cf were done during investigation,         ._
  it could not be said that the same were part of the respondent's
c 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
D lt 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.
E
       8. A similar view was taken in Bhagwan Prasad
  Srivastava v. N.P. Misra [(1971) 1SCR317] where a complaint
  had been filed that the accused, who was a civil surgeon, used
  defamatory and abusive words and got the complainant pushed
F 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
G 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 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
H
      CHOUDHURY PARVEEN SULTANA v. STATE OF WEST 105
           BENGAL AND ANR. [ALTAMAS KABIR, J.]

).   to facilitate effective and unhampered performance of their           A
     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          B
     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)
                                                                           c
     ·1 sec 1] where the 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     D
     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. Such it Mohanta, who appeared for the respondent        E
     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.
                                                                           F
           12. 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'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        G
     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.                                                           H
    106       SUPREME COURT REPORTS               [2009] 1 S.C.R.


A        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.

8      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 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
C 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
D 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
E 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
F 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
G 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
H
            CHOUDHURY PARVEEN SULTANA v. STATE OF WEST 107
                 BENGAL AND ANR. [ALTAMAS KABIR, J.)
     :.,   on behalf of the respondent No.2 that since in the complaint the   A
           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 9.11.2005, such offences were
           purported to have been committed by the respondent No.2            B

..         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. C
            It was no part of his duties to threaten the complainant or her
           husband to withdraw the complaint. In order to apply the bar 9f
           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 D
           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 prima facie
           makes out offences alleged to have been committed by the E
           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
                                                                              F
           respondent No.2 herein.
           KKT.                                          Appeal allowed.