Sk. Moyaggen Hossen @ Sk. Moyazem Hossen v. State of West Bengal & Ors.

#5. Mr. D. N. Chatterjee, Learned Counsel for the Petitioner vehemently argues that Section 197 is not a "charter of impunity." He submits that while the ASI was indeed on duty to deliver a document, "snatching a mobile phone" or "battery" bears no rational connection to that duty. He contends that the Sessions Court misapplied the law by granting blanket immunity for acts that are mala fide and entirely outside the scope of police functions.

#6. Mr. Satadru Lahiri, Learned Counsel for the State and the Accused counters this by asserting that the officers were present at the spot "under the colour of office" to execute a judicial order. They argue that any friction arising during the discharge of such duty is protected. Furthermore, they point to a minor discrepancy in the timing of the incident mentioned in the complaint to suggest that the entire case is a retaliatory fabrication intended to harass diligent officers. QUESTION FOR DETERMINATION

#7. The core question that emerges for this Court’s determination is: "Whether the mandatory protection of Section 197 Cr.P.C. extends to acts of theft and assault committed by a public servant while on duty, and whether the absence of a prior sanction order legally bars a Magistrate from issuing process for such offences?" 4 LEGAL DISCOURSE AND FINDINGS

#8. To answer this, this Court must look at the legislative intent behind Section 197 Cr.P.C. whether extended to provide a blanket immunity for all acts committed "under the colour of office,"

#9. Section 197 of the Cr.P.C. provides that when a public servant is accused of an offence alleged to have been committed "while acting or purporting to act in the discharge of his official duty," no Court shall take cognizance except with the previous sanction of the appropriate Government.

#10. Section 197 Cr.P.C. is a safeguard against vexatious litigation; it is not a "charter of impunity." As established in State of U.P. v. Paras Nath Pandey ORDER

#19. In view of the aforesaid deliberations, the judgment and order of the learned Revisional Court dated September 11, 2017, is modified and the matter is remanded with the following specific directions: a. The dismissal of the complaint is hereby set aside. The complaint is restored to its original file before the Learned 3rd Judicial Magistrate, Tamluk, for fresh consideration from the stage of Section 202/204 Cr.P.C. b. The Learned Magistrate shall conduct a limited inquiry to determine if the alleged acts of assault and theft are severable from the official duty of serving a summons. c. If the allegation of Theft (Sec. 379 IPC) is found to be independent of the summons-serving process, the Magistrate shall proceed to issue process for the same without requiring sanction. d. If the Magistrate determines that the Assault (Section 323 IPC) occurred as part of a scuffle inextricably linked to the discharge of duty, he shall 7 grant the Petitioner liberty to apply for sanction, but such a requirement shall not stay the proceedings regarding the theft. e. The Magistrate is expressly directed to ignore minor discrepancies in timing at this stage, as a prima facie case does not require proof beyond reasonable doubt, but merely a ground for proceeding. f. This inquiry and the subsequent order of the Magistrate must be concluded within four months of the communication of this judgment.

#20. The Revisional Application being CRR 3296 of 2017 is disposed of accordingly.

#21. All consequential Interim order/orders, if any, shall stand vacated.

#22. There shall be no order as to costs.

#23. The Trial Court Record (TCR), if any, shall be sent down to the Trial Court, at once.

#24. Case diary, if any, be returned forthwith.

#25. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. (Uday Kumar, J.)