Supreme Court Clarifies On The Subsequent Protection Under Section 197 CrPC To Subordinate Police Officers

While hearing the matter pertaining to the death of an accused/Respondent's husband while in the appellant/police custody, the Supreme Court held that the bar on taking congnizance under Section 197 CrPc must exist at the time the Magistrate takes notice of the offence and not retroactively.

Case Background:

The matter is stemmed from a complaint which was filed by Sadhana Das/Respondent regarding the death of her husband during a police lathi charge on the day of State Assembly elections in West Bengal.

The Respondent/complaintant named three police officials: an Assistant Commissioner of Police (Sankaran Moitra) and the two appellants, who served as the Officer-in-Charge and a Police Constable, with the allegations that at the instance of the Assistant Commissioner, the appellants murdered the complainant’s husband.

The proceedings against the Assistant Commissioner (Sankaran Moitra) was quashed by the Supreme Court observing that credible information was received at the police station regarding violent clashes between supporters of two political parties upon which the Asst Commissionr had arrived at the spot in his official vehicle and, thereafter, a lathi charge took place. The Asst Commissionr is a public servant not removable from office without Government sanction, thereby attracting the protection of Section 197(1) of the CrPC.

Following that decision of the Apex Court, the Magistrate aslo extended the same benefit to the appellants. However, the High Court reversed this, observing that the Apex Court order was applicable to Sankaran Moitra alone, and it did not apply to other accused against whom no sanction was required. This lead to the present appeal.

The appellants/accused argued that a 2010 West Bengal Government notification had since extended Section 197 protection to all subordinate police ranks, making their prosecution without sanction illegal.

The Bench, comprising Justice J.B. Pardiwala and Justice Manoj Misra, delineated two critical reasons for their decision:

1. Removability and the Scope of Section 197(1) only protects public servants who are "Not removable from office save by or with the sanction of the Government".

Citing established precedents, the bench noted that if an officer (such as a Sub-Inspector) can be dismissed by an Inspector General of Police, no Government sanction is required even if the act was committed in the discharge of official duties. Since the appellants were subordinate rank officers at the time cognizance was taken, they did not fall within this protected category.

2. On the Timing of the Bar on Cognizance, the Apex Court clarified that the bar on taking cognizance must exist at the time the Magistrate takes notice of the offense. The Court further held that the bar under Section 197 is specifically on the "Court's power to take cognizance" and if no legal bar exists on the date the court takes cognizance, the court is fully empowered to proceed with the trial.

The Apex Court emphasized that a subsequent bar—such as the 2010 notification relied upon by the appellants—has no consequence on proceedings where cognizance was validly taken in the past (in this case, in 2001).

Relying on its earlier judgment in case of "Baijnath & Others vs State of MP" and that a "post-cognizance sanction will not save the proceedings" because the legality of the court's action is determined at the moment it assumes jurisdiction.

Thus, the Supreme Court dismissed the appeal, holding that the appellants were not entitled to the protection of Section 197 CrPC, and that there is no provision in the CrPC that allows a later administrative notification to nullify a prior, valid judicial order.

BENCH: JUSTICE J. B. PARDIWALA & JUSTICE MANOJ MISRA.