Code of Criminal Procedure, 1973 – s.197(1) – Protection under, when not available – First respondent-complainant (wife of the deceased) filed complaint against three police officials viz. co-accused-‘SM’, an Assistant Commissioner of Police; the first-appellant and the second-appellant, a Police Constable alleging that at the instance of ‘SM’, the appellants murdered her husband – Magistrate took cognizance on the complaint, accused persons summoned – SM’s petition for quashing the proceedings on the aforesaid complaint on the ground that no cognizance could have been taken without a proper sanction as contemplated in s.197, CrPC was dismissed – However, the appeal filed by ‘SM’ thereagainst was allowed by Supreme Court – Magistrate extended the benefit of this Court’s order to the appellants as well – First respondent filed criminal revision, allowed on the ground that this Court’s order in SM’s case was qua him alone, and it did not apply to other accused against whom no sanction was required – Correctness: Held: This Court quashed the proceedings against ‘SM’ not on the ground that no offence was committed by him or that no offence at all was committed, but for want of sanction – The proceedings were quashed as he was a public servant (i.e., Assistant Commissioner of Police) not removable from his office save by or with the sanction of the Government and the offence alleged was committed by him while acting or purporting to act in the discharge of his official duty – In those circumstances, this Court took the view that he was entitled to the protection of sub-section (1) of s.197 and, therefore, in absence of sanction, the complaint and the proceedings were liable to be quashed – The benefit of decision in SM’s case would be available to the appellants only if they were not removable from office save by or with the sanction of the Government – Previous sanction is required for prosecuting only such public servants who could be removed by sanction of the Government – Undisputedly, when cognizance of the alleged offence was taken, the appellants were subordinate rank officers not falling in the category of those officers who could be removed from service only with the sanction of the Government thus, there was no requirement of sanction as envisaged u/s.197 (1) – Hence, the benefit of the decision in ‘SM’ is not available to the appellants – Protection of sub-section (1) was not available to the appellants – Penal Code, 1860 – ss.302/201/109 r/w s.120-B. [Paras 7, 9-11]
Code of Criminal Procedure, 1973 – s.197(2) – Notifications dtd. 19.11.2010 issued in exercise of the power conferred upon the State Government by sub-section (3) of s.197 inter alia stating that the provisions of sub-section (2) of s.197 of the Code shall apply to all sub-ordinate ranks of Police force constituted under the Calcutta Police Act, 1866 and Calcutta Sub-Urban Police Act, 1866; and to subordinate ranks in police force, enrolled or appointed under the Police Act, 1861 – Appellants sought protection under sub-section (2) on the basis of the notification dtd. 19.11.2010: Held: A subsequent bar on the power of the court to take cognizance of an offence is of no consequence to those proceedings where cognizance was taken when there was no such bar – The notification(s) would not affect those proceedings where cognizance was not barred when taken – Moreover, there is nothing in the notification(s) or CrPC which may nullify a valid cognizance order – Cognizance was taken in the year 2001, much before the notification – Therefore, the benefit of s.197 is not available to the appellants. [Para 14]
Code of Criminal Procedure, 1973 – s.197 (1), (2) – Bar under: Held: The bar of sub-sections (1) and (2) of s.197 is on Court’s power to take cognizance of an offence allegedly committed by a public servant or member of a Force while acting or purporting to act in the discharge of official duty save with the previous sanction of the Government – If the bar applies, the Court cannot take cognizance of the offence and therefore, it cannot proceed to try the same – Thus, Court cannot try an offence of which it cannot take cognizance. [Para 14]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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