9911796707
TMI Blog2009 (1) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... reaten 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 been committed by the respondent No. 2 which were not part of his official duties. Set aside the judgment and order of the High Court. X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Sadhna Das and another [(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 of Section 197 of the Code was that the act complained of must have been performed in discharge of or in the purported discharge of duty. This Court ultimately, came to the conclusion that dispensing with jurisdictional or statutory requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that assaulting the complainant and abusing him when the complainant came to submit his representation for cancellation of his transfer could not by any standard be said to be part of the official duties to be exercised by the authority concerned. 8. A similar view was taken in Bhagwan Prasad Srivastava v. N.P. Misra [(1971) 1 SCR 317] where a complaint had been filed that the accused, who was a civil surgeon, used defamatory and abusive words and got the complainant pushed out by the cook of the hospital. The question posed was whether the case was covered by Section 197 Cr.P.C. and whether previous sanction of the superior authority was necessary before the trial Court could take cognizance of the case. In the facts of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uchit Mohanta, who appeared for the respondent No. 2 supported the judgment of the High Court and submitted that since the acts complained of were alleged to have been committed during investigation it had been rightly held by the High Court that the same had been done in the discharge of official duties by the respondent No. 2. 12. The same stand was taken by Mr. Avijit Bhattacharjee, appearing for the State of West Bengal. He urged that in view of the decision in Sankaran Moitra's case there was no scope to contend that the bar under Section 197 Cr. P.C. did not apply to the facts of the case. Mr. Bhattacharjee submitted that the acts complained of had been performed by the respondent No. 2 during the course of investigation, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned. 15. In the instant case, certain deeds and acts have been attributed to the respondent No. 2 and another accused, which cannot be said to have been part of the official duties to be performed by respondent No. 2. Hence, in our view, the respondent No. 2 was not entitled to the protection of Section 197 Cr. P.C. in respect of such acts. 16. While dealing with the aforesaid question, the High Court appears to have been swayed by the submissions made on behalf of the respondent No. 2 that since in the complaint the acts of extortion and criminal intimidation were a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
