Summary
The two police officers who were appellants could be removed from service without the Government's sanction, so Section 197(1) CrPC did not protect them, and an earlier quashing for want of sanction in a co-accused senior officer's case did not benefit them. A later State notification under Section 197(3), extending Section 197(2) to subordinate police ranks, did not affect cognizance validly taken years before it. The High Court's direction to proceed against them was upheld.
Issues
- Whether co-accused subordinate police officers were entitled to the benefit of the Supreme Court's earlier decision quashing the complaint against a senior co-accused for want of sanction under Section 197(1) CrPC.
- Whether a State notification under Section 197(3) CrPC, issued after cognizance had been taken, entitled the appellants to the protection of Section 197(2).
Provisions considered
- Section 197(1), Code of Criminal Procedure, 1973The sanction requirement applies only to a public servant not removable from office save by or with the sanction of the Government. The appellants, being subordinate-rank officers removable without such sanction when cognizance was taken, did not need sanction, so the co-accused's quashing for want of sanction did not extend to them. (¶¶ 7, 9, 10, 11)
- Section 197(2) and (3), Code of Criminal Procedure, 1973Sub-section (3) lets the State extend the sub-section (2) bar (cognizance only with previous sanction) to members of forces maintaining public order. The Court held the bar operates at the stage of cognizance, so a notification issued after cognizance does not nullify a cognizance validly taken when no bar existed. (¶¶ 11, 13, 14, 15)
- Section 17, Penal Code, 1860Because 'Government' is not defined in the CrPC, the Court applied, via Section 2(y) CrPC, the IPC definition: the Central Government or the Government of a State. (¶ 8)
- Section 2(y), Code of Criminal Procedure, 1973Used to import the IPC definition of 'Government' for construing Section 197(1). (¶ 8)
Held
- The earlier decision quashing the complaint against the senior co-accused rested only on want of sanction, because he was a public servant not removable without the Government's sanction. It was not a finding that no offence was committed, so its benefit extends to a co-accused only if he too is so protected. (¶ 7)
- Previous sanction under Section 197(1) is needed only for public servants removable by or with the sanction of the Government. The appellants, being subordinate-rank officers outside that category when cognizance was taken, required no sanction and could not claim the co-accused's benefit. (¶¶ 9, 10)
- The bars in Section 197(1) and (2) operate on the court's power to take cognizance. A post-cognizance sanction cannot save proceedings begun in breach of the bar; conversely, a bar arising after cognizance has no effect on proceedings where cognizance was validly taken. Nothing in a notification under Section 197(3) or in the Code nullifies a valid cognizance order. (¶ 14)
- Since cognizance was taken in 2001, long before the State's notifications of 19.11.2010 extending Section 197(2) to subordinate police ranks, the appellants could not invoke Section 197. (¶ 15)
- No opinion was expressed on the merits of the allegations against the appellants. (¶ 16)
Result
Appeal dismissed; the High Court's order directing the Magistrate to proceed against the appellants upheld; interim orders discharged; no opinion expressed on merits.