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Criminal Appeal No. 654 of 2013

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 654 OF 2013

SAMARENDRA NATH KUNDU & ANR. …APPELLANT (S)

VERSUS

SADHANA DAS & ANR. …RESPONDENT (S)

J U D G M E N T

MANOJ MISRA, J.

1. This appeal impugns the judgment and order of the High

Court at Calcutta

1 dated 02.05.2012 in Criminal Revision No. 874

of 2008, by which the revision application of the first-respondent

Smt. Sadhna Das (hereinafter referred to as the complainant)

against the order of Chief Judicial Magistrate, Alipore, South 24-

Parganas

2 dated 28.12.2007 in Case No. C-1107 of 2001 was

1

The High Court

2

The learned Magistrate

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Criminal Appeal No. 654 of 2013

allowed and the learned Magistrate was directed to proceed against

the accused (the appellants herein).

FACTS

2. The relevant facts are as under:

(i) The complainant i.e., the wife of the deceased made a

complaint against three police officials namely,

Sankaran Moitra (an Assistant Commissioner of Police),

S.M. Kundu (the first-appellant), Officer-in-Charge of

Phoolbagan Police Station, Calcutta and Sudhir Sikdar

alias Sudhangshu Kumar Sikdar (the second-appellant),

a Police Constable attached to the Phoolbagan Police

Station, Calcutta. In the complaint it was, inter alia,

alleged that at the instance of Sankaran Moitra, the

other two accused, namely, the appellants herein,

murdered complainant’s husband.

(ii) The learned Magistrate took cognizance on the

complaint and, after following complaint case procedure

as contemplated under the Code of Criminal Procedure,

1973

3, summoned the accused under Section s

3

Cr.P.C.

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Criminal Appeal No. 654 of 2013

302/201/109 read with Section 120 -B of the Indian

Penal Code, 1860

4.

(iii) Sankaran Moitra filed a petition under Section 482 of

Cr.P.C. for quashing the proceedings on the aforesaid

complaint, inter alia, on the ground that no cognizance

could have been taken without a proper sanction as

contemplated in Section 197 of Cr.P.C.

(iv) The High Court vide order dated 11.07.2003 dismissed

the aforesaid petition holding that beating a person to

death cannot be regarded as an act in the discharge of

official duties.

(v) Aggrieved by High Court’s order, Sankaran Moitra filed

Criminal Appeal No. 330 of 2006 before this Court,

which was allowed vide order dated 24.03.2006

5. While

allowing the appeal, this Court noticed/ observed that

the incident occurred on the day of elections to the State

Assembly; the accused applicant was in uniform; the

counter affidavit filed on behalf of the State revealed that

on the election day, information was received at the

4

IPC

5

Reported as Sankaran Moitra v. Sadhna Das & Another, (2006) 4 SCC 584

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Criminal Appeal No. 654 of 2013

police station regarding violent clashes between

supporters of two political parties upon which the

applicant had arrived at the spot in his official vehicle

and, thereafter, a lathi charge took place; and husband

of the complainant may have received injuries in that

lathi charge, resulting in his death. After noticing/

observing as above, this Court held that as maintenance

of law and order and prevention of breach of public order

on the polling day was part of the officers’ duty, the act

was done in the performance of duty or in purported

performance of duty, therefore protection of Section

197(1) would be available. The operative portion of the

order reads thus:

“25. … We are therefore satisfied that the High

Court was in error in holding that sanction

under Section 197(1) was not needed in this

case. We hold that such sanction was necessary

and for want of sanction the prosecution must

be quashed at this stage. It is not for us now to

answer the submission of learned counsel for

the complainant that this is an eminently fit

case for grant of such sanction.

26. We thus allow this appeal and set aside the

order of the High Court quash the complaint

only on the ground of want of sanction under

Section 197(1) of the Code of Criminal

Procedure. The observations herein, however,

shall not prejudice the rights of the

complainant in any prosecution after the

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Criminal Appeal No. 654 of 2013

requirements of Section 197(1) of the Code of

Criminal Procedure are complied with.”

(vi) The learned Magistrate upon receiving the aforesaid

order of this Court, vide order dated 28.12.2007,

extended the benefit of this Court’s order to the

appellants as well.

(vii) Aggrieved by the order of the learned Magistrate dated

28.12.2007, the complainant ( i.e., the first-respondent)

filed a criminal revision before the High Court.

(viii) By the impugned order, the criminal revision was

allowed, inter alia, on the ground that this Court’s order

in Sankaran Moitra was qua Sankaran Moitra alone,

and it did not apply to other accused against whom no

sanction was required.

3. We have heard learned counsel for the parties.

SUBMISSIONS ON BEHALF OF APPELLANTS

4. The submission of the learned counsel for the appellant, inter

alia, is that the Government of West Bengal

6, vide notification

dated 19.11.2010, under sub-section (3) of Section 197 of Cr.P.C.,

6

The Government

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Criminal Appeal No. 654 of 2013

has extended the benefit of the provisions of sub-section (2) of

Section 197 to all subordinate rank police officers enrolled or

appointed under the Police Act, 1861 charged with the

maintenance of public order. As a result, vide letter dated

06.12.2010, the Government sought opinion from the

Commissioner of Police, Calcutta

7 qua grant of sanction to

prosecute the appellants. In response thereof, the Commissioner

wrote letter dated 15.12.2010 stating that it is not a fit case for

according sanction as police officer(s) had discharged their duties

in the capacity of public servant on the day of elections to the State

Legislative Assembly. Relying on the said letter, on behalf of the

appellants, it was contended that the incident occurred while the

appellants were discharging their duties pursuant to direction of

their superiors and as, by notification dated 19.11.2010,

requirement of sanction is essential even for police officers in the

subordinate ranks, there exists no justification to prosecute the

appellants in absence of the sanction. Therefore, the appeal be

allowed, the order of the High Court be set aside and the order of

the learned Magistrate be restored.

7

The Commissioner

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Criminal Appeal No. 654 of 2013

SUBMISSIONS ON BEHALF OF COMPLAINANT

5. Per contra, on behalf of the complainant (i.e., the first-

respondent) it was submitted that the deceased had received

multiple injuries as could be evinced from paragraphs 71, 72 and

73

8 of this Court’s judgment in Sankaran Moitra (supra) which

8

71. "Dr. Rabindra Basu, who performed post-mortem examination, state that he found the

following injuries on the person of Topi Das:

1. One abrasion with a reddish crust 1.4 inches x .3 inch more or less transversely

placed across left side of forehead lower part being placed 1 inch above lateral 1/3rd

left eye brow.

2. One abrasion .4 inch x .3 inch with reddish crust placed 1 inch above medial end

of left eyebrow and ½ inch lateral to midline.

3. One linear abrasion .6 inch x .1 inch with reddish crust over lateral aspect of

uppermost part of left forearm.

4. One abrasion = x .1 inch with reddish crust over postern lateral aspect of upper

1/3rd of left forearm.

5. One abrasion ½ x .1 inch over dorsum of left hand.

6. One linear abrasion .4 inch x .1 inch with reddish rust over dorsal aspect of web

between index and middle finger."

72. On internal examination, he noticed the following injuries:

1. One haematoma in the scalp tissue 3 ½ inches x 2 inches over right temporal

region.

2. One haematoma in the scalp tissue over vault of the skull 4 inches x .4 inch over

parieto-occipital region of scalp.

3. One haematoma in the scalp tissue over vault of the skull 4 inches x 3 inches

involving left parieto topper (sic) region.

4. One haematoma 2 ½ inches x 1 ½ inches over left frontal region (forehead).

5. Extradural Haemorrhage over vault of the brain involving posterior aspects of both

parietal lobes.

6. Thin layscror (sic) sub-aural haemorrhage all over both the cerebral hemisphere

inching under surfaced.

73. He then stated:

"All the internal organs were congested. Larynx and trachea were found congested

and the lumen was filled up with shaving lathery froth with and sand seen even below

bifunction of trachea. Lungs were voluminous, doughy filled and on section and

squeezing copious amount of frothy blood mixed fluid came out. Heart showed Grade-

II atteroma (sic) at the root of aorta.

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Criminal Appeal No. 654 of 2013

clearly indicate that it was a case of brutal murder. Moreover, the

judgment in Sankaran Moitra (supra) would not apply to the

appellants as on the date of cognizance, the appellants were not

protected by Section 197 of Cr.P.C. Further, the notification dated

19.11.2010 applies only to those cases where cognizance is taken

after 19.11.2010. Thus, the appeal is liable to be dismissed.

DISCUSSION

6. Upon consideration of the rival submissions and perusal of

the materials available on record, in our view, following issues fall

for our consideration:

(1) Whether the appellants, who are co-accused, are

entitled to the benefit of this Court’s decision in the

matter of co-accused Sankaran` Moitra?

(2) Whether the benefit of notification dated 19.11.2010

would be available to the appellants?

ISSUE No. 1:

On the basis of my findings I have the following opinion: "Death was due to the effects

of head injuries associated with drowning ante-mortem and homicidal in nature.

The injuries which I found are consistent with a trauma caused by blunt weapon such

as Lathi."

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Criminal Appeal No. 654 of 2013

7. In so far as the first issue is concerned, it is important to note

that this Court had quashed the proceedings against Sankaran

Moitra not on the ground that no offence has been committed by

him or that no offence at all was committed, but for want of

sanction. The proceedings were quashed as he was a public

servant (i.e., Assistant Commissioner of Police) not removable from

his office save by or with the sanction of the Government and the

offence alleged was committed by him while acting or purporting

to act in the discharge of his official duty. In those circumstances,

this Court took the view that he was entitled to the protection of

sub-section (1) of Section 197 and, therefore, in absence of

sanction, the complaint and the proceedings were liable to be

quashed. What is important to note is that in the case of Sankaran

Moitra there was no dispute that he was not removable from office

save by or with the sanction of the Government. What is also

important is that it was left open to proceed against Sankaran

Moitra after obtaining the sanction. In such circumstances, the

benefit of decision in Sankaran Moitra (supra) would be available

to the appellants only if they were not removable from office save

by or with the sanction of the Government.

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Criminal Appeal No. 654 of 2013

8. ‘Government’ is not defined in Cr.P.C. therefore, by virtue of

Section 2 (y) of Cr.P.C., we would have to refer to the definition of

‘Government’ as provided in IPC. Section 17 of IPC defines

‘Government’ as follows:

“The word Government denotes the Central

Government or the Government of a State.”

9. In Nagraj v. State of Mysore

9, this Court held that if the

Inspector General of Police can dismiss a Sub -Inspector, no

sanction of the State Government would be necessary for such an

officer even if he had committed the alleged offence while acting or

purporting to act in the discharge of his official duty. Following the

above decision, in Fakhruzamma v. State of Jharkhand

10 it was

held that previous sanction is required for prosecuting only such

public servants who could be removed by sanction of the

Government.

10. As there is no dispute that when cognizance of the alleged

offence was taken, the appellants were subordinate rank officers

not falling in the category of those officers who could be removed

from service only with the sanction of the Government, in our view,

9

AIR 1964 SC 269 : (1964) 3 SCR 671: 1963 SCC OnLine SC 249

10

(2013) 15 SCC 552, paragraph 6

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Criminal Appeal No. 654 of 2013

there was no requirement of sanction as envisaged under Section

197 (1) of Cr.P.C. Hence, the benefit of the decision in Sankaran

Moitra (supra) is not available to the appellants. Issue No.(1) is

answered accordingly.

ISSUE No. (2)

11. Sub-sections (1) and (2) of Section 197 of Cr.P.C. provides

protection to different categories of persons. We have already held

above that protection of sub-section (1) was not available to the

appellants. Now, we shall consider whether protection of sub-

section (2) of Section 197 is available. According to sub-section (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. Sub-

section (3) of Section 197 of Cr.P.C. empowers the State

Government to direct, by notification, that the protection

envisaged under sub-section (2) shall apply to such class or

category of members of the Forces charged with the maintenance

of public order as may be specified therein. In light of the

provisions of sub-section (3), even though the appellants do not

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Criminal Appeal No. 654 of 2013

fall in the category of officers not removable from service save by

or with the sanction of the Government, they seek protection under

sub-section (2) on the basis of the notification dated 19.11.2010

issued by the Government under sub-section (3) of Section 197 of

Cr.P.C.

12. In fact, twin notifications dated 19.11.2010 have been placed

on record. The first relates to subordinate ranks in police force

constituted under the Calcutta Police Act, 1866 and Calcutta Sub-

Urban Police Act, 1866 whereas the second relates to subordinate

ranks in police force, enrolled or appointed under the Police Act,

1861. These twin notifications are reproduced below:

Part I

Order by the Governor of West Bengal

2149

GOVERNMENT OF WEST BENGAL

Home (Political) Department

Secret Section

NOTIFICATION

No. 2103-P.S.

Dated Kolkata, the 19

th

November, 2010

In exercise of the power conferred by sub-section (3) of

Section 197 of the Code of Criminal Procedure, 1973 (2 of

1974) (hereinafter referred to as the Code), the Governor is

pleased hereby to direct that the provisions of sub-section

(2) of Section 197 of the Code shall apply to all sub-ordinate

ranks of Police force, appointed constituted and

administered under the Calcutta Police Act, 1866 (Ben. Act

IV of 1866) and Calcutta Suburban Police Act, 1866 (Ben.

Act. II of 1866) charged with the maintenance of public

order.

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Criminal Appeal No. 654 of 2013

By order of the Governor,

Sd/- A.G. GHOSH

OSD & Ex-officio

Spl. Secy. to the Govt. of West Bengal

No. 2103/1(1)-P.S.

Copy forwarded to the Commissioner of Police, Kolkata for

information and necessary action.

Sd/-

OSD & Ex-officio

Jt. Secy. to the Govt. of West Bengal

2150

GOVERNMENT OF WEST BENGAL

Home (Political) Department

Secret Section

NOTIFICATION

No. 2104-P.S.

Dated Kolkata, the 19

th

November, 2010

In exercise of the power conferred by sub-section (3) of

Section 197 of the Code of Criminal Procedure, 1973 (2 of

1974) (hereinafter referred to as the Code), the Governor is

pleased hereby to direct that the provisions of sub-section

(2) of Section 197 of the Code shall apply to all sub-ordinate

ranks of Police force, enrolled or appointed under the Police

Act, 1861 (5 of 1861) charged with the maintenance of

public order.

By order of the Governor,

Sd/- A.G. GHOSH

OSD & Ex-officio

Spl. Secy. to the Govt. of

West Bengal

13. Apparently the aforesaid notifications were issued in exercise

of the power conferred upon the State Government by sub-section

(3) of Section 197. As a result, we will have to examine whether the

appellants’ case would come under the protective umbrella of sub-

section (2) of Section 197 in view of the notification issued under

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sub-section (3). Before we dwell on the applicability of the

provisions of sub-section (2), we must understand the stage at

which the bar envisaged under Section 197 applies.

14. The bar of sub-sections (1) and (2) of Section 197 is on Court’s

power to take cognizance of an offence allegedly committed by a

public servant or member of a Force while acting or purporting to

act in the discharge of official duty save with the previous sanction

of the Government. If the bar applies, the Court cannot take

cognizance of the offence and therefore, it cannot proceed to try the

same. In other words, the court cannot try an offence of which it

cannot take cognizance. In Baijnath v. State of M.P.

11 it was held

that a post-cognizance sanction will not save the proceedings.

Reason is simple, when cognizance was taken the bar applied.

Conversely, if there is no bar on the date when cognizance of the

offence is taken, the court can proceed to try the offence. This is

so, because the bar applies at the stage of cognizance. Therefore,

in our view, a subsequent bar on the power of the court to take

cognizance of an offence is of no consequence to those proceedings

where cognizance was taken when there was no such bar. As a

sequitur, the notification(s) would not affect those proceedings

11

AIR 1966 SC 220: (1966) 1 SCR 210: 1965 SCC OnLine SC 294

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Criminal Appeal No. 654 of 2013

where cognizance was not barred when taken. Besides, there is

nothing in the notification(s) or Cr.P.C. which may nullify a valid

cognizance order.

15. In the instant case, cognizance was taken in the year 2001,

that is, much before the notification. Therefore, in our considered

view, the benefit of Section 197 is not available to the appellants.

As a result, the appeal lacks merit and is, accordingly, dismissed.

The interim order, if any, stands discharged. Pending

application(s), if any, shall also stand disposed of.

16. We, however, clarify that we have not expressed any opinion

on the merits of the allegations made against the appellants.

….......................................J.

(J.B. Pardiwala)

...........................................J.

(Manoj Misra)

New Delhi;

April 01, 2026