Full Judgment Text
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PETITIONER:
SOM CHAND SANGHVI
Vs.
RESPONDENT:
BIBHUTI BHUSAN CHAKRAVARTY
DATE OF JUDGMENT:
21/01/1964
BENCH:
MUDHOLKAR, J.R.
BENCH:
MUDHOLKAR, J.R.
SUBBARAO, K.
CITATION:
1965 AIR 588 1964 SCR (6) 275
ACT:
Code of Criminal procedure, 1898 (Act 5 of 1898), s.
197--scope of
HEADNOTE:
The appellant made a complaint against the respondent, an
Assistant Commissioner of Police for having committed an
offence under s. 348, Indian Penal Code, alleging that on
the arrest of the appellant under s. 1208/420 Indian Penal
Code, the respondent had refused to grant him bail until a
certain sum was paid or acknowledged in writing to be paid
to the complainant. The Chief Presidency Magistrate issued
process. On revision, the High Court quashed the process
holding that sanction of the State Government under s. 197
Code of Criminal Procedure ought to have been obtained. On
appeal by special leave, it was contended that the High
Court in quashing the process had proceeded to decide on the
merits of the case even though there was no material before
it and therefore its judgment could not stand.
Held: (i) For considering whether s. 197 Code of
Criminal Procedure would apply the Court must confine itself
to the allegations made in the complaint. But that does not
mean that it need not look beyond the form in which the
allegations have been made and is incompetent to ascertain
for itself their substance.
(ii) The sanction of the appropriate authority for the
respondent’s prosecution was necessary under s. 197 Code of
Criminal Procedure. Whether a person charged with an
offence should or should not be released on bail was a
matter within the discretion of the respondent and if while
exercising a discretion he acted illegally by saying that
bail would not be granted unless the appellant did something
which the appellant was not bound to do, the respondent
cannot be said to have acted otherwise than in his capacity
as a public servant.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 90 of
1961.
Appeal by special leave from the judgment and order dated
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January 10, 1961, of the Calcutta High Court in Criminal
Revision No. 1545 of 1960.
Sukumar Ghose, for the appellant.
D. N. Mukherjee, for the respondent.
276
January 21, 1964. The Judgment of the Court was delivered
by
MUDHOLKAR J.-This is an appeal against the judgment of the
Calcutta High Court quashing the issue of process against
the respondent.
The respondent is an Assistant Commissioner of Police in the
City of Calcutta and the appellant had made a complaint
against him alleging that he had committed an offence under
s. 348, I.P.C. that is, wrongful confinement in order to
extort a confession or compel restoration of property.
The facts as alleged by the appellant are as follows:
One Manoharlal Seth had lodged a complaint on July 28, 1960
against him and two other persons Fatehlal and Jaichand for
offences under s. 120B/420, I.P.C. and s. 420 I.P.C.
Manoharlal Seth had alleged in his complaint that these
persons had induced him to purchase a bar of brass for Rs.
6,000 on the representation that it was of gold and thus
duped him. Upon this complaint, investigation was taken up
by the police. He came to know Manoharlal Seth in the
course of his business. They were on quite friendly terms
in the beginning and later on considerable differences arose
between him and Manoharlal Seth. As a result of that
Manoharlal Seth told him that unless he settled his
differences with Manoharlal Seth according to the latter’s
dictates he would put him into trouble through his friend,
the respondent, and that it is because of this that
Manoharlal lodged a complaint against him for cheating.
This complaint was thus a false complaint and it is common
ground that ultimately it was dismissed by the Presidency
Magistrate, 8th Court, Calcutta on January 2, 1961.
Then according to the appellant, on August 3, 1960 at about
6-00 A.M. P. C. Kundu, Sub-Inspector of Police attached to
Burrabazar Police Station along with another Sub-Inspector
S. Bhattacharya, visited his residence, searched his house
and arrested him. Neither of them had any warrant with them
for the search of the house or for the
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arrest of the appellant. Upon enquiry by him from these
persons they told him that this was being done under the
orders of the respondent. After his arrest the appellant
said that he was taken to the Burrabazar police station at
about 7-00 a.m. and then to Jorasanko Police Station and
produced before T. K. Talukdar, Sub-Inspector in charge of
that police station. From there he was taken to various
places in Calcutta with a rope tied round his waist by Kundu
and Bhattacharya and was eventually produced at about 12
noon before the respondent in his office at Lalbazar. There
the respondent started threatening the appellant and asked
him to settle the dispute with Manoharlal Seth and pay him
Rs. 5,000 or to acknowledge in writing that he would pay
this sum of money to Manoharlal Seth. At about 3-30 p.m. on
the same day his brother Iswarilal accompanied by a lawyer
Chakravarthy visited the respondent’s office and sought the
appellant’s release on bail as the offence was a bailable
one. The respondent, however, refused to grant bail saying
that no bail would be granted until a sum of Rs. 5,000 was
paid to Manoharlal Seth. The appellant says that he was
detained at Lalbazar Police Station till 8-00 p.m. From
there he was taken to Jorasanko Police Station and kept in
the lock-up for the whole night. On the next day, that is,
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August 4, 1960 he was again produced before the respondent
at Lalbazar where the latter repeated his threats and that
after obtaining his finger prints and taking his photographs
he was taken to the court of the Additional Chief Presidency
Magistrate where he was released on bail at about 2-30 p.m.
On August 19, 1960 the appellant preferred a complaint
before the Chief Presidency Magistrate, Calcutta, under s.
348 and s. 220, I.P.C. and s. 13C of the Calcutta Police
Act, 1866. In so far as two of the persons named as accused
therein, S. I. Kundu and S. I. Talukdar, he decided to issue
process against them under s. 220 I.P.C. and s. 13C of the
Calcutta Police Act. As regards the respondent, he decided
to issue process against him under s. 348, I.P.C. Upon a
revision application preferred by the respondent the High
Court quashed the process issued against him by
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the learned Chief Presidency Magistrate. The ground urged
before; the High Court on behalf of the respondent was that
before he could be proceeded against sanction of the State
Government under s. 197, Cr. P.C. ought to have been
obtained. This contention was upheld by the High Court.
On.1 behalf of the appellant Mr. Sukumar Ghose contends that
the High Court in quashing the process has proceeded to
decide on the merits of the case even though there was no
material before it to do so and that therefore its judgment
cannot stand.
It is true that for considering whether s. 197, Cr.P.C.
would apply the Court must confine itself to the allegations
made in the complaint. But that does not mean that it need
not look beyond the form in which the allegations have been
made and is incompetent to ascertain for itself their
substance. Here the substantial allegation is that the
respondent questioned the appellant when he was produced at
his office in Lalbazar, asked him to restore Rs. 5,000 to
Manoharlal Seth who had lodged a complaint of cheating
against the appellant and two others and that he declined to
release him on bail. No doubt the appellant has made a
grievance in his complaint that the respondent said that the
appellant would not be released on bail unless he either
paid the amount or acknowledged in writing his liability to
pay this amount. Assuming that the allegation is true all
that the thing boils down to is that the respondent refused
to enlarge the appellant on bail and that he wanted the
appellant to settle the matter with Manoharlal Seth. It
cannot be disputed that whether a person charged with an
offence should or should not be released on bail was a
matter within the discretion of the respondent and if while
exercising a discretion he acted illegally by saying that
bail would not be granted unless the appellant did something
which the appellant was not bound to do, the respondent
cannot be said to have acted otherwise than in his capacity
as a public servant. For this reason the sanction of the
appropriate authority for the respondent’s prosecution was
necessary under s. 197, Cr-P.C.
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Mr. Ghose, however, contends that the appellant’s detention
in the respondent’s office was illegal and that, therefore,
the respondent could not be said to have been in a position
to exercise any lawful authority with respect to him. It is
difficult to appreciate how the appellant’s detention could
be said to be illegal because it was in pursuance of the
investigation of the complaint lodged by Manoharlal Seth
that he was arrested and brought for interrogation before
the respondent. It was not disputed before us that
investigation into Manoharlal’s complaint had been ordered
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though there is a dispute as to whether it was ordered by
the respondent or by the Deputy Commissioner of Police.
Whether it was by one or the other makes little difference.
We would like to make it clear that Mr. Ghose did not
contend before us that the appellant’s detention in the
office of the respondent was illegal because his initial
arrest was without a warrant. But we may point out that a
police officer is legally empowered to arrest a person
alleged to have committed an offence under s. 420, I.P.C.
without a warrant.
Such being the position the High Court was justified in
quashing the process. Accordingly we dismiss this appeal.
Appeal dismissed.