Som Chand Sanghvi Vs. Bibhuti Bhusan
Chakravarty [1964] INSC 10 (21 January 1964)
21/01/1964 MUDHOLKAR, J.R.
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.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 90 of 1961.
Appeal by special leave from the judgment and
order dated 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 277 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, 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 278 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.
279 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 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.
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