'6 S.C.R.

SUPREME COURT REPORTS 275

SOM CHAND SANGHVI

BIBHUTI BHUSAN CHAKRA VARTY

(K. SuBBA RAo AND J. R. MuDHOLKAR JJ.)

Code of C1imi11al J'rocedure, 1898 (Act 5 of 1898), s. 191->l"COP• o/

The appellant made a complaint against the respondent, an Auistaat 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 PeIJal Code, the respondent had refused to grant him bail until a c.crtain i:.um was paid or acknowledged in writing to be paid to the complainant. The Chief Presidency Magistrate issued process. Oa revision, the liigh Court quashed the process holding that sanction of. the State Government under s. 197 Code of Criminal Procedure ought to haYC

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 iii judgment could not stand.

Held:

(i) For considering whether s. 197 Code of Criminal Proc. -tiure would apply the Court must confine itself to the allegations made ia

the complaint. But that does not mean that it need not look beyond U. form in which the allegations have been made and is incompetent to 1111ce.rtain for itself their substance.

(ii) The .sanction of the appropriate authority for the respondeat't pr03ecution was necessary under s. 197 Code of CriminaJ Procedure. Whether a person chargetl with an offence should or should not be relcad

on bail was a matter within the discretion of the respondent and if whilt exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant waa DOt

ound to do, the respondent cannot be said to have acted otbenrile Illa in bis 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 ill Criminal Revision No. 1545 of 1960.

Sukumar Ghose, for the appellant.

D. N. Mukherjee, for the respondent.

s. C. Sanglivl ... llbhutl Bhushan Chakravarty

January 21, 1964. The Judgment of the Court was delivered by

MunHOLKAR. J.-This is an appeal against the judgment of the Calcutta High Court quashing the issue lof I. 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, l.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 Manohar!al 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 l.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:

arrest of the appellant.

Upon enquiry by him from these l!IM persons they told him. that this was being done under the s. c. s..n, lirl -0rders of the respondent. After his arrest the apellant said BibhJ1ti "Bhw,._

that he was taken to the Burrabazar police station at about Chakrt1•11tl1 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 vanous 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 acknowle<jge 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 resr, Jondent'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. I 3C of the Calcutta Police Act, 1866.

In so far as two of the persons named as accused therein, S. I. Kun du and S. I. Talukda:, he decided to issu~ 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

Mudholkar '

1964 the learned Chief Presidency Magistrate. The ground urged s. c. S..., hvi before the High Court on behalf of the respondent was that aibliuti •Bhushan betorc; he could be proceeded against sanction of the State

Chakravarty Government under s. 197, Cr. P.C. ought to have been Mud,;;;;;,

1. obtained.

This contention was upheld by the High Court.

Ou 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.PC. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not lvok beyond the form in which the allegations have been made and is incompetent to ascertain for itself their 1mbstance.

Here the substantial allegation is that the

1 respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000 to Mauoharlal 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 a!! 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 tp 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.

Mr Ghose, however, . contends that the appellant's 1964

detention in the respondent's office was illegal and that, s. c. San11i•i therefore, the respondent could not be said to have been in Bibhuti v.8huilwn a position to exercise any lawful authority with respect to Chakravor11 him. It is difficult to appreciate how the appellant's deten- Mudholkar I. tion 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 warran!.

Such being the position the High Court was justified in q, ushing the process. Accordingly we dismiss this appeal.

Appeal dismissed.

0. S. RAMASWAMY & ORS. ·

v . ..

INSPECTOR-GENERAL OF POLICE, MYSORE

(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

Stlltt Police Strvict-Sub-lnspector1 included in tligibility list of Cir1.:le

Jruptctor.s-RtorganUation of_ Statt1-Appointment tu Circle Iruptctor1 in new State-Rever1ion on return of 1enior o{fictr._, f rtduction in ra11k-My1ort Stniority Rult•, 19S1, r. 2(c)- H1derabad District Polict Mcnual, u. 399, 403, 486.

larumry., 21