1. This is an appeal against the judgment of the Calcutta High Courtquashing the issue of process against the respondent.
2. The respondent is an Assistant Commissioner of Police in the City ofCalcutta and the appellant had made a complaint against him alleging that hehad committed an offence under s. 348, I.P.C. that is, wrongful confinement inorder to extort a confession or compel restoration of property.
3. The fact as alleged by the appellant are as follows :
One Manoharlal Seth had lodged a complaint on July 28,1960 against him and two other persons Fatehlal and Jaichand for offences unders. 120B/420, I.P.C. and s. 420 I.P.C. Manoharlal Seth had alleged in hiscomplaint 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 thiscomplaint, investigation was taken up by the police. He came to know ManoharlalSeth in the course of his business. They were on quite friendly terms in thebeginning and later on considerable differences arose between him andManoharlal Seth. As a result of that Manoharlal Seth told him that unless hesettled his differences with Manoharlal Seth according to the latter's dictateshe would put him into trouble through his friend, the respondent, and that itis because of this that Manoharlal lodged a complaint against him for cheating.This complaint was thus a false complaint and it is common ground thatultimately it was dismissed by the Presidency Magistrate, 8th Court, Calcuttaon January 2, 1961.
4. 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 alongwith another Sub-Inspector S. Bhattacharya, visited his residence, searched hishouse and arrested him. Neither of them had any warrant with them for thesearch of the house or for the arrest of the appellant. Upon enquiry by himfrom these persons they told him that this was being done under the orders ofthe respondent. After his arrest the appellant said that he was taken to theBurrabazar police station at about 7-00 A.M. and then to Jorasanko PoliceStation and produced before T. K. Talukdar, Sub-Inspector in charge of thatpolice station. From there he was taken to various places in Calcutta with arope tied round his waist by Kundu and Bhattacharya and was eventually producedat about 12 noon before the respondent in his office at Lalbazar. There therespondent started threatening the appellant and asked him to settle thedispute with Manoharlal Seth and pay him Rs. 5,000 or to acknowledge in writingthat he would pay this sum of money to Manoharlal Seth. At about 3-30 P.M. onthe same day his brother Iswarilal accompanied by a lawyer Chakravarthy visitedthe respondent's office and sought the appellant's release on bail as theoffence was a bailable one. The respondent, however, refused to grant bailsaying that no bail would be granted until a sum of Rs. 5,000 was paid toManoharlal Seth. The appellant says that he was detained at Lalbazar PoliceStation till 8-00 P.M. From there he was taken to Jorasanko Police Station andkept 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 latterrepeated his threats and that after obtaining his finger prints and taking hisphotographs he was taken to the court of the Additional Chief PresidencyMagistrate where he was released on bail at about 2-30 P.M.
5. On August 19, 1960 the appellant preferred a complaint before the ChiefPresidency Magistrate, Calcutta, under s. 348 and s. 220, I.P.C. and s. 13C ofthe Calcutta Police Act, 1866. In so far as two of the persons named as accusedtherein, S. I. Kundu and S. I. Talukdar, he decided to issue process againstthem under s. 220 I.P.C. and s. 13C of the Calcutta Police Act. As regards therespondent, he decided to issue process against him under s. 348, I.P.C. Upon arevision application preferred by the respondent the High Court quashed theprocess issued against him by the learned Chief Presidency Magistrate. Theground urged before the High Court on behalf of the respondent was that beforehe could be proceeded against sanction of the State Government under s. 197,Cr.P.C. ought to have been obtained. This contention was upheld by the HighCourt.
6. On behalf of the appellant Mr. Sukumar Ghose contends that the High Courtin quashing the process has proceeded to decide on the merits of the case eventhough there was no material before it to do so and that therefore its judgmentcannot stand.
7. It true that for considering whether s. 197, Cr.P.C. would apply theCourt must confine itself to the allegations made in the complaint. But thatdoes not mean that it need not look beyond the form in which the allegationshave been made and is incompetent to ascertain for itself their substance. Herethe substantial allegation is that the respondent questioned the appellant whenhe was produced at his office in Lalbazar, asked him to restore Rs. 5,000 toManoharlal Seth who had lodged a complaint of cheating against the appellantand two others and that he declined to release him on bail. No doubt theappellant has made a grievance in his complaint that the respondent said thatthe appellant would not be released on bail unless he either paid the amount oracknowledged in writing his liability to pay this amount. Assuming that theallegation is true all that the thing boils down to is that the respondentrefused to enlarge the appellant on bail and that he wanted the appellant tosettle the matter with Manoharlal Seth. It cannot be disputed that whether aperson charged with an offence should or should not be released on bail was amatter within the discretion of the respondent and if while exercising adiscretion he acted illegally by saying that bail would not be granted unlessthe appellant did something which the appellant was not bound to do, the respondentcannot be said to have acted otherwise than in his capacity as a publicservant. For this reason the sanction of the appropriate authority for therespondent's prosecution was necessary under s. 197, Cr.P.C.
8. Mr. Ghose, however, contends that the appellant's detention in therespondent's office was illegal and that, therefore, the respondent could notbe said to have been in a position to exercise any lawful authority withrespect to him. It is difficult to appreciate how the appellant's detentioncould be said to be illegal because it was in pursuance of the investigation ofthe complaint lodged by Manoharlal Seth that he was arrested and brought forinterrogation before the respondent. It was not disputed before us thatinvestigation into Manoharlal's complaint had been ordered though there is adispute as to whether it was ordered by the respondent or by the DeputyCommissioner of Police. Whether it was by one or the other makes littledifference. We would like to make it clear that Mr. Ghose did not contendbefore us that the appellant's detention in the office of the respondent wasillegal because his initial arrest was without a warrant. But we may point outthat a police officer is legally empowered to arrest a person alleged to havecommitted an offence under s. 420, I.P.C. without a warrant.
9. Such being the position the High Court was justified in quashing theprocess. Accordingly we dismiss this appeal.
10. Appeal dismissed.