21 January 1964
Supreme Court
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SOM CHAND SANGHVI Vs BIBHUTI BHUSAN CHAKRAVARTY

Case number: Appeal (crl.) 90 of 1961


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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                             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,

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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 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

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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.