LAW FINDER

Submitted By: Adv. Shah Aalam Ansari

Choudhury Parveen Sultana v. State of West Bengal , (SC) Law Finder Doc Id # 179284
2009 AIR (SCW) 861 : 2009(1) R.C.R.(Criminal) 765 : 2009(1) Recent Apex Judgments (R.A.J.)
490 : 2009(1) AICLR 528 : 2009(3) SCC 398 : 2009 AIR (Supreme Court) 1404 : 2009(1) JT 347
: 2009(64) ACrC 708 : 2009(3) AIR Jhar R. 537 : 2009(1) CalLJ 126 : 2009(4) RLW 3082 :
2009(3) GLR 2082 : 2009(74) AIC 1 : 2009(3) ECrC 57 : 2008(sup) Cri. L.R. (SC) 140 : 2009(1)
CalCriLR 344 : 2009 ALL MR(Cri) 504 : 2009(1) Bom.C.R (Cri.) 545 : 2009(234) ELT 196 :
2009(2) Cal. L.T. 68 : 2009(2) SCC(Cri) 122 : 2009 CriLJ 1318 : 2009(3) Cri.CC 236 : 2009(1)
M.P.W.N. 329 : 2009(2) L.R.C. 153 : 2009(2) B.L.Jud. 77 : 2009(2) BBCJ 218 : 2009(sup) CutLT
(Criminal) 563 : 2009(42) Orrisa Cri. R. 535
SUPREME COURT OF INDIA
Before:- Altamas Kabir and Markandey Katju, JJ.
Criminal Appeal No. 8 of 2009 (@ S.L.P. (Crl.) No. 2864 of 2007). D/d. 7.1.2009.
Choudhury Parveen Sultana - Appellant
Versus
State of West Bengal and Another - Respondents
For the Appellant :- Pijush K. Roy and Sunil Kumar Verma, Advocates.
For the Respondent :- Suchit Mohanta, Amit Sharma, Anupam Lal Das, Avijit Bhattacharjee and Saumya
Kundu, Advocates.
NOTE
The Investigation officer giving the threats to the complainant of a case. It is not the
official duty to give the threats. No sanction is required.
Criminal Procedure Code, Section 197 - Accused (Police Officer) investigating a criminal
case and wanted complainant to make a tutored statement and tried to obtain his
signature on blank paper under threat - Criminal complaint against the accused under
Sections 384 , 506 Indian Penal Code - Sanction for prosecution under Section 197 Criminal
Procedure Code not required - It was no part of his duties to threaten the complainant or
her husband to withdraw the complaint. AIR 1971 Supreme Court 259 and [(1971)1 SCR
317] relied.
[Paras 14, 15 and 17]
Cases Referred :-
Sankaran Moitra v. Sadhna Das, 2006(2) RCR (Criminal) 389 : 2006(1) Apex Criminal 551 : [(2006)4 SCC
584].
Pukhraj v. State of Rajasthan [AIR 1973 Supreme Court 2591].
Bhagwan Prasad Srivastava v. N.P. Misra [(1971)1 SCR 317].

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Parkash Singh Badal v. State of Punjab, 2007(1) RCR (Criminal) 1 : 2007(1) RAJ 71 : [(2007)1 SCC 1].
JUDGMENT
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 the respondent
No. 2, Sahabul Hussain, under 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 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
326/307/120B/34 Indian Penal Code 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
Indian Penal Code and the said 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, 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 Indian Penal Code.
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 Criminal Procedure Code 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
Criminal Procedure Code 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 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 Criminal Procedure Code 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
v. Sadhna Das and another, 2006(2) RCR (Criminal) 389 : 2006(1) Apex Criminal 551 :

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[(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 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
Criminal Procedure Code 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 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 Criminal Procedure Code
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 Supreme Court 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.
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 Criminal Procedure Code 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
Criminal Procedure Code and that the object and purpose underlying Section 197 Criminal Procedure
Code 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 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) RCR (Criminal) 1 : 2007(1) RAJ 71 : [(2007)1 SCC 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 of the respondent No. 2, they did not attract the bar of Section 197 Criminal
Procedure Code and the Magistrate had quite lawfully taken cognizance of the offence and had issued

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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 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 Criminal Procedure Code 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 Criminal
Procedure Code.
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 official duties cannot as a matter of course be brought under the protective
umbrella of Section 197 Criminal Procedure Code 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 Criminal Procedure Code 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 Criminal Procedure Code 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 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 Criminal Procedure Code 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 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 Criminal Procedure
Code each case has to be considered in its own fact situation in order to arrive at a finding as to

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whether the protection of Section 197 Criminal Procedure Code 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 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.
Appeal allowed.

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