iminal 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 section 348 IPC 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 section 120B420 IPC and section 420 IPC Manoharlal Seth had alleged in his complaint that these persons had induced him to purchase a bar of brass for Rs 6000 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 AM P C Kundu Sub Inspector of Police attached to Burrabazar Police Station along with another Sub Inspector section 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 am 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 5000 or to acknowledge in writing that he would pay this sum of money to Manoharlal Seth
At about 3 30 pm 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 5000 was paid to Manoharlal Seth
The appellant says that he was detained at Lalbazar Police Station till 8 00 pm
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 pm
On August 19 1960 the appellant preferred a complaint before the Chief Presidency Magistrate Calcutta under section 348 and section 220 IPC and section 13C of the Calcutta Police Act 1866
In so far as two of the persons named as accused therein section I Kundu and section I Talukdar he decided to issue process against them under section 220 IPC and section 13C of the Calcutta Police Act
As regards the respondent he decided to issue process against him under section 348 IPC
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 section 197 Cr
PC ought to have been obtained
This contention was upheld by the High Court
On1 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 section 197 Cr
PC 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 5000 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 section 197 Cr PC 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 section 420 IPC without a warrant
Such being the position the High Court was justified in quashing the process
Accordingly we dismiss this appeal
Appeal dismissed


Summary:
The appellant made a complaint against the respondent an Assistant Commissioner of Police for having committed an offence under section 348 Indian Penal Code alleging that on the arrest of the appellant under section 1208420 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 section 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 section 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 section 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