IMPORTANT POINT
Previous sanction of Government required u/s 197, Cr.PC for prosecuting only such public servants who could be removed by sanction of Government.

JUDGMENT

K.S. Radhakrishnan, J.

1. 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 CaseNo.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, 120Band 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, Section197 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 SC269].

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 herein below 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