The learned Magistrate took companynizance 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.
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.
It was also claimed that the appellants husband lodged a companyplaint with the local police authorities and higher authorities also but numberaction was taken and the appellant was, therefore, companypelled to move the Chief Judicial Magistrate Murshidabad by way of the said companyplaint.
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.
Being aggrieved by the companynizance taken and the issuance of process the respondent No.2 moved the High Court under Sections 397/401 read with Section 482 Cr.
In the aforesaid companyplaint 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.
Subsequently, the appellant herein filed an application before the Chief Judicial Magistrate, Murshidabad, alleging companymission of offences by the respondent No.2 and another punishable under Sections 387/504/34 IPC and the said companyplaint was registered as C.R.Case No.543 of 2005.
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.
It was also alleged that on the pretext of companyducting investigation the respondent No.2 and his company accused used to companye 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.
P.C. for quashing the companynizance 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. In support of the aforesaid companytention made on behalf of the respondent No.2 reliance was placed on the decision of this Court in Sankaran Moitra vs. Sadhna Das and another 2006 4 SCC 584 wherein after companysidering 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 companyplained of must have been performed in discharge of or in the purported discharge of duty.
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.
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.
ALTAMAS KABIR,J. Leave granted.
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.
It was also companytended that the companyplaint disclosed that the offence was alleged to have been companymitted by the respondent No.2 during the companyrse of investigation in companynection with Behrampore Police Station Case No.348 dated 9.11.2005, and, accordingly, such offence, if at all companymitted, had been companymitted by the respondent No.2 while discharging official duties which brought him within the protective umbrella of Section 197 Cr.
P.C. and that numberCourt companyld take companynizance of the offence alleged to have been companymitted by the respondent No.2 except with the previous sanction of the State Government.
The appellant is before us against the said order of the High Court.
