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1991 Supreme(All) 432
HIGH COURT OF ALLAHABAD
B.P.Singh
RADHEY SHYAM PUSHKAR
Versus
JAMUNA DAS
Decided On : 24 April 1991
Criminal Revision No. 223 of 1992
R.K.SHANGLU, Sant Saran,
A Sub-Inspector of Police is not entitled to protection under Section 197(1) of the CrPC because he is not removable from office save by or with the sanction of the Government.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 197(1) - PROTECTION FROM PROSECUTION - PUBLIC SERVANT NOT REMOVABLE FROM OFFICE SAVE BY OR WITH THE SANCTION OF THE GOVERNMENT - SUB-INSPECTOR OF POLICE - NOT ENTITLED TO PROTECTION - SANCTION FOR PROSECUTION NOT REQUIRED.
Fact of the Case:
The applicant, a Sub-Inspector of Police, was accused of offenses under Sections 343, 161, 504, 506, and 323 of the Indian Penal Code (IPC) by a private complaint filed by Jamuna Das. The applicant claimed that he was entitled to protection under Section 197(1) of the Code of Criminal Procedure (CrPC) and that the complaint was barred because no sanction for his prosecution had been obtained.
Finding of the Court:
The court held that the applicant was not entitled to protection under Section 197(1) of the CrPC because a Sub-Inspector of Police is not removable from office save by or with the sanction of the Government. The court also held that the question of whether the applicant had arrested Jamuna Das on 8th May 1991 or 14th May 1991 was a disputed question of fact that would have to be decided by the trial court.
Issues: 1. Whether a Sub-Inspector of Police is entitled to protection under Section 197(1) of the CrPC? 2. Whether the complaint against the applicant was barred because no sanction for his prosecution had been obtained?
Ratio Decidendi: 1. Section 197(1) of the CrPC provides protection from prosecution to public servants who are not removable from office save by or with the sanction of the Government. 2. A Sub-Inspector of Police is not removable from office save by or with the sanction of the Government. Therefore, the applicant was not entitled to protection under Section 197(1) of the CrPC.
Final Decision: The court dismissed the applicant's revision petition and held that the trial court had rightly taken cognizance of the complaint against him.
Key Points: - The judgment holds that a Sub-Inspector of Police is not entitled to protection under Section 197(1) CrPC because he is not removable from office save by or with the sanction of the Government (!) (!) . - Section 197(1) CrPC provides protection from prosecution to public servants not removable from office by government sanction; if removable only by government sanction, protection applies, otherwise not (!) . - The question of whether the applicant’s arrest date is 8th May 1991 or 14th May 1991 is a disputed fact to be decided by the trial court (not a decision at this revision stage) (!) . - The application for revision was dismissed, confirming cognizance of the private complaint against the Sub-Inspector (!) (!) . - The burden to prove entitlement to protection lies on the person claiming benefit of Section 197(1) CrPC (!) . - Sanction is required for prosecution of a public servant under Section 197(1) CrPC when applicable; absence of sanction can bar cognizance (!) . - The court notes that a Sub-Inspector can be removed by the Inspector-General or Deputy General of Police, illustrating limits of protection under 197(1) (!) . - The core issue addressed: whether Section 197(1) protection applies to a Sub-Inspector in a case involving allegations under IPC Sections 343, 161, 504, 506, 323 (!) . - Final outcome: revision dismissed; trial court’s cognizance of the complaint was proper (!) .
What is the scope of Section 197(1) CrPC protection for public servants not removable from office by government sanction?
What is the status of sanction for prosecution required for a Sub-Inspector of Police under Section 197(1) CrPC?
What factors determine whether a Sub-Inspector of Police is entitled to protection under Section 197(1) CrPC in a private complaint case?
This is an application for revision against the order dated 14-11-1991 passed by IIIrd Additional Munsif Magistrate, Jhansi in Criminal Case No. 674 of 1991. Jamnna Das v. Radhey Shyam Pushker, under. Sections 161, 506, 343, 504 and 323, I. P. C. , P. S. Babina district Jhansi.
2. The facts of this case are very simple. One Ram Das had lodged an F. I. R. against Jamuna Das in P. S. Babina and Crime No. 34/91 was registered in the Police Station under Section 394, IPC. The case was investigated by the applicant Radhey Shyam Pushker, who was posted as Sub-Inspector in P. S. Babina. During the course of investigation, Jamuna Das was arrested. He was released on bail and thereafter a charge-sheet in the said case was submitted on 8-8-1991 under Sections 452, 323 and 504, I. P. C.
3. After his release from Jail, Jamuna Das filed a private complaint against the applicant Radhey Shyam Pushker on 11-7-1991 in the court of Chief Judicial Magistrate, Jhansi, under Sections 343, 161, 504, 506 and 323, I. P. C.
4. The learned Magistrate took cognizance and after recording state ments of the witnesses under Sections 200 and 202, Cr. P. C. passed an order on 14-11-1991 summoning the applicant Radhey Shyam
Pushker for the offences under Sections 343, 161, 504, 506 and 323,1. P. C. It is against this order dated 14-11-1991 that the present application for revision has been moved.
5. Affidavit and counter affidavit have been exchanged and the applica tion for revision is being finally disposed of at the admission stage.
6. The main contention of the applicants counsel is that the com plaint dated 11-7-1991 filed by Jamuna Das against the applicant was false fictitious and frivolous and the complaint was barred under Section 197, Cr. P. C. because the applicant was acting in his official capacity when Jamuna Das was arrested and no sanction for prosecution of the applicant was obtained by Jamuna Das before the filing of the complaint. On the other hand, the contention of the learned counsel for the Jamuna Das is that there was no need to obtain any sanction because Jamuna Das was arrested on 8-5-1991 while in the Police papers the arrest of Jamuna Das was falsely shown as 14-5-1991. It was also contended that the provisions of Section 197, Cr. P. C. were not attracted to the case of the applicant.
7. Section 197 (1), Cr. P. C. provides that when any person who is 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 of the State Government. The words "a public servant not removable from his office save by or with the sanction of the Government" leave no room for doubt that the provisions of Section 197 (1), Cr. P. C. are available only to that public servant who is removable from service by or with the sanction of the Government.
8. It is not disputed that it may not always be necessary to determine the question of the want of sanction as soon as the complaint is filed. The reason is very simple. The complainant may not disclose the fact which may attract the provisions of Section 197 (1), Cr. P. C. , but it is always desirable that if a person claims the benefit of Section 197 (1), Cr. P. C. then this ques tion must be decided at the earliest opportunity. Of course, the burden to prove that he is entitled to the benefit of Section 197 (1), Cr. P. C. lies upon the person claiming the benefit. In this case, the burden lies upon the appli cant to show that he could not be prosecuted for the alleged offences in the complaint case without the sanction of the State Government.
9. A Sub-Inspector of Police is not removable from office save by or with the sanction of the Government. A Sub-Inspector can be removed from service by the Inspector-General of Police or by the Deputy Gener
