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Sec.197 Cr. P.C. – Sanction to prosecution – Since he was removed from service following the procedure laid down in Jharkhand police manual – No sanction to prosecute warranted – Apex court confirmed the orders of the high court = Fakhruzamma … Appellant Versus State of Jharkhand & Anr. … Respondent = published in /Cited in / Reported in judis.nic.in/supremecourt/filename=41073

Sec.197 Cr. P.C. – Sanction to prosecution – Since he was removed from service following the procedure laid down in Jharkhand police manual – No sanction to prosecute warranted – Apex court confirmed the orders of the high court = 

whether sanction under Section 197  Cr.P.C.  is  necessary  from  the  State

Government before prosecuting the Appellant,  though  he  was  removed  from

service following the procedure laid down in Jharkhand Police Manual. =


That order was challenged by the  Appellant  before  the  High

Court by filing Crl. M.P. No.1669 of 2006 under Section 482 Cr.P.C.  stating

that in the absence of previous sanction of the  State  Government,  as  per

the provisions of Section 197 Cr.P.C.,  the  learned  Magistrate  could  not

have taken cognizance of the offences against the appellant who was  a  Sub-

Inspector of Police, since the act alleged was committed  while  discharging

his official duty.   

The High Court  rejected  that  contention  by  holding

that since the competent authority had removed the Appellant  from  service,

sanction  to  prosecute  under  Section  197  Cr.P.C.  was  not   warranted.

Aggrieved by the same, this appeal has been preferred. =

The  question

raised, in our view, is directly covered by the judgment of this  Court  in

Nagraj’s case (supra) and the High Court was right in  applying  the  ratio

laid down in that case while interpreting the provisions of  the  Jharkhand

Police Manual and we fully endorse the view of the High Court.


10.   In the circumstances, we find no merit in this Appeal  and  the  same

stands dismissed.                  

 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2086 OF 2013
(@ SPECIAL LEAVE PETITION (CRL.) NO.4069 OF 2012)

Fakhruzamma … Appellant
Versus
State of Jharkhand & Anr. … Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

Leave granted.

2. The question that has come up for consideration in this case is
whether sanction under Section 197 Cr.P.C. is necessary from the State
Government before prosecuting the Appellant, though he was removed from
service following the procedure laid down in Jharkhand Police Manual.

3. The Sub-Divisional Judicial Magistrate, Giridih, in Complaint Case
No.281 of 2003, T.R. No.835 OF 2006, took cognizance against the Appellant
for various offences under Sections 456, 323, 504, 506, 342, 386, 201, 120B
and 304 IPC. That order was challenged by the Appellant before the High
Court by filing Crl. M.P. No.1669 of 2006 under Section 482 Cr.P.C. stating
that in the absence of previous sanction of the State Government, as per
the provisions of Section 197 Cr.P.C., the learned Magistrate could not
have taken cognizance of the offences against the appellant who was a Sub-
Inspector of Police, since the act alleged was committed while discharging
his official duty. The High Court rejected that contention by holding
that since the competent authority had removed the Appellant from service,
sanction to prosecute under Section 197 Cr.P.C. was not warranted.
Aggrieved by the same, this appeal has been preferred.

4. Shri S.K. Katriar, Senior Advocate, appearing for the Appellant,
submitted that the High Court has committed an error in holding that no
sanction under Section 197(1) Cr.P.C. was necessary before prosecuting the
Appellant. The learned senior counsel submitted that the High Court failed
to appreciate the ratio laid down by this Court in Sankaran Moitra v.
Sadhna Das & Anr. (2006) 4 SCC 584] and Rakesh Kumar Mishra v. State of
Bihar & Ors. [(2006) 1 SCC 557] and erroneously held that no sanction was
contemplated under Section 197 Cr.P.C. for prosecuting the Appellant.

5. Shri Jayesh Gaurav, Advocate, appearing for the Respondents, on the
other hand, contended that the Appellant is a Sub-Inspector of Police and
hence governed by the Jharkhand Police Manual and he can be removed from
the service by the Inspector General of Police or the Deputy Inspector
General of Police and for removal from service of a Sub-Inspector, no
approval/sanction of the State Government is necessary and, hence, Section
197 Cr.P.C. would not apply to case of the Appellant. Learned counsel also
submitted that the issue raised in this case stands covered by the judgment
of this Court in Nagraj v. State of Mysore [(1964) 3 SCR 671 = AIR 1964 SC
269].

6. The Appellant’s case is that he had arrested one Satyam Mirza (since
deceased) for offences under Section 376(g) and 302 IPC. The case was
registered at Police Station Gande where the Appellant was officiating as
an office-in-charge. According to the Appellant, while returning from the
spot led by the deceased in search of desi katta, the deceased jumped out
of the running police vehicle TATA 407 and disappeared in the dark night in
a dense forest and could not be located. Later, on 13.1.2003, he was
found dead in the deep forest. The wife of the deceased Satyam Mirza filed
a complaint against the Police stating that the deceased had died during
police custody and to take appropriate action against the officials
concerned. The learned Sub-Divisional Judicial Magistrate, on 4.7.2006,
took cognizance of that complaint and registered case against the
Appellant. As already stated, for quashing of that complaint, the
Appellant approached the High Court on the ground that no sanction under
Section 197 Cr.P.C. was obtained before taking cognizance by the learned
Magistrate. The scope of Section 197 Cr.P.C. has to be examined in the
light of the Jharkhand Police Manual. Section 197 Cr.P.C. is extracted
hereinbelow for an easy reference :-
“197. Prosecution of Judges and public servants. (1) When any
person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the
Government is accused of any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official
duty, no Court shall take cognizance of such offence except with the
previous sanction.
a) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed,
in connection with the affairs of the Union, of the Central
Government;
b) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed,
in connection with the affairs of a State, of the State
Government:

Provided that where the alleged offence was committed by a
person referred to in clause (b) during the period while a
Proclamation issued under clause (1) of Article 356 of the
Constitution was in force in a State, clause (b) will apply as if for
the expression “state Government” occurring therein, the expression
“Central Government” were substituted.
(2) No Court shall take cognizance of any offence alleged to have
been committed by any member of the Armed Forces of the Union while
acting or purporting to act in the discharge of his official duty,
except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the
provisions of sub- section (2) shall apply to such class or category
of the members of the Forces charged with the maintenance of public
order as may be specified therein, wherever they may be serving, and
thereupon the provisions of that sub- section will apply as if for the
expression “Central Government” occurring therein, the expression”
State Government” were substituted.
(3A) Notwithstanding anything contained in sub- section (3), no court
shall take cognizance of any offence, alleged to have been committed
by any member of the Forces charged with the maintenance of public
order in a State while acting or purporting to act in the discharge of
his official duty during the period while a Proclamation issued under
clause (1) of Article 356 of the Constitution was in force therein,
except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code
or any other law, it is hereby declared that any sanction accorded by
the State Government or any cognizance taken by a court upon such
sanction, during the period commencing on the 20th day of August, 1991
and ending with the date immediately preceding the date on which the
Code of Criminal Procedure (Amendment) Act, 1991, receives the assent
of the President, with respect to an offence alleged to have been
committed during the period while a Proclamation issued under clause
(1) of Article 356 of the Constitution was in force in the State,
shall be invalid and it shall be competent for the Central Government
in such matter to accord sanction and for the court to take cognizance
thereon.

(4) The Central Government or the State Government, as the case may
be, may determine the person by whom, the manner in which, and the
offence or offences for which, the prosecution of such Judge,
Magistrate or public servant is to be conducted, and may specify the
Court before which the trial is to be held.”

7. The above-mentioned provision clearly indicates that previous
sanction is required for prosecuting only such public servants who could be
removed by sanction of the Government. Rule 824 of the Jharkhand Police
Manual prescribes different departmental punishments, including the
punishment of dismissal and removal, to be inflicted upon the police
officers up to the rank of Inspector of Police. The relevant Rule for our
purpose is Rule 825, which is given below:
“825. Officers empowered to impose punishment. – (a) No police
officer shall be dismissed or compulsorily retired by an authority
subordinate to that which appointed him.
(b) The Inspector-General may award to any police officer below the
rank of Deputy Superintendent any one or more of the punishments in
rule 825.
(c) xxx xxx xxx
(d) A Superintendent may impose on any police officer subordinate to
him and of and below the rank of Sub-Inspector any or more of the
punishments in rule 824 except dismissal; removal and compulsory
retirement in the case of Sub-Inspector or Assistant Sub-Inspector.
It shall be kept in mind that if any enquiry has been initiated by the
District Magistrate, a report of the result shall be sent to him for
information. If required, the file of departmental proceeding shall
also be sent with it.
(e) xxx xxx xxx
(f) xxx xxx xxx.”
8. Rule 825, clauses (a) and (b) confers power on the Inspector General
of Police or the Deputy Inspector General of Police to pass orders for
removal of police officers up to the rank of Inspector. Before passing
the order of removal, the Inspector General of Police or the Deputy
Inspector General of Police need not obtain prior approval of the State
Government. A similar issue came up for consideration before this Court
in Nagraj’s case (supra), wherein this Court was called upon to examine the
scope of Section 197 Cr.P.C. read with Section 4(c), 8, 26(1) and 3 of the
Mysore Police Act, 1908. Interpreting the above-mentioned provisions, a
Three-Judge Bench of this Court held that an Inspector General of Police
can dismiss a Sub-Inspector and, therefore, no sanction of the State
Government for prosecution of the appellant was necessary even if he had
committed the offences alleged while acting or purporting to act in
discharge of this official duty.

9. The judgment referred to by the Appellant, such as, Rakesh Kumar
Mishra (supra) is not applicable to the case in hand. The question
raised, in our view, is directly covered by the judgment of this Court in
Nagraj’s case (supra) and the High Court was right in applying the ratio
laid down in that case while interpreting the provisions of the Jharkhand
Police Manual and we fully endorse the view of the High Court.

10. In the circumstances, we find no merit in this Appeal and the same
stands dismissed.
………………………….……J.
(K.S. Radhakrishnan)
………………………………J.
(A.K. Sikri)
New Delhi
December 12, 2013

 

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