IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 8 OF 2009

@ S.L.P. (Crl.) NO.2864 of 2007

Choudhury Parveen Sultana               ...Appellant

Vs.

State of West Bengal and Another … Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. 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.

1

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 326/307/120-B/34 IPC 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  IPC  and  the  said

2

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,

3

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 IPC.

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.  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

4

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 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  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

5

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

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.

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

6

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  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  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

7

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 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  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

8

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 SCC 1] where the

9

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 Cr.P.C. and the Magistrate had

quite  lawfully  taken  cognizance   of  the

offence and had issued 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

1 0

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

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.

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

1 1

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 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

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 Cr.P.C. and have to be considered

de hors the duties which a public servant is

required to discharge or perform.  Hence, in

1 2

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  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 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

1 3

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 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  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

1 4

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.

_______________J. (ALTAMAS KABIR)

_______________J. (MARKANDEY KATJU)

New Delhi Dated  : 07.01.2009

1 5