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TMI Blog2009 (1) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... evious 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same question was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court, as far back as in 1971 in Bhagwan Prasad Srivastava's case (supra) holds good even today. All acts done by a public servant in the purported discharge of his 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 mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 prima facie makes out offences alleged to have be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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