advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, December 14, 2013

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

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.