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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.  

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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.

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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

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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

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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

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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

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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:

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“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

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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

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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