IMPORTANT POINT
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.

JUDGMENT

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.

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 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 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 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 another1 [(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 o