LexSOM CHAND SANGHVI versus BIBHUTI BHUSAN CHAKRAVARTY
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'6 S.C.R. SUPREME COURT REPORTS 275 SOM CHAND SANGHVI v. BIBHUTI BHUSAN CHAKRA VARTY (K. SuBBA RAo AND J. R. MuDHOLKAR JJ.) ·Code of C1·imi11al 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 1111- ce.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. Whe- ther 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 SUPREME COURT REPORTS [rg64J January 21, 1964. The Judgment of the Court was delivered by MunHOLKAR. J.-This is an appeal against the judg- ment 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, search- ed his house and arrested him. Neither of them had any warrant with them for the search of the house or for the: 6 S.C.R. SUPREME COURT REPORTS 277 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
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