FAKHRUZAMMAversusSTATE OF JHARKHAND & ANR.

                       [2013] 12 S.C.R. 824


A                        FAKHRUZAMMA
                                 v.
                STATE OF JHARKHAND & ANR.
               (Criminal Appeal No. 2086 of 2013)
                      DECEMBER 12, 2013
B
         [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

        Code of Criminal Procedure, 1973:

c      s. 197 - Previous sanction for prosecution of public
  servant- Held: s.197 clearly indicates that previous sanction
  is required for prosecuting only such public servants who
  could be removed by sanction of the Government - Clauses
  (a) and (b) of r.825 of Jharkhand Police Manual confer power
  on the Inspector General of Police or the Deputy Inspector
0
  General of Police to pass orders for removal of police officers
  up to the rank of Inspector, without obtaining prior approval
  of State Government - High Court has rightly held that since
  the competent authority had removed the appellant from
E service, sanction uls 197 was not warranted - Jharkhand
  Police Manual - rr.825(a) and (b).

       The appellant filed a petition before the High Court
  seeking to quash the proceedings of a complaint case
  before the Judicial Magistrate, filed against him alleging
F offences punishable ulss 456, 323, 504, 506, 342, 386, 201,
  120-B and 304 IPC. His case was that he was a Sub-
  Inspector of Police and the alleged act was committed
  while discharging his official duty and in the absence of
  previous sanction of the State Government uls 197 CrPC,
G the Judicial Magistrate could not have taken cognizance
  of the offences alleged. The High Court dismissed the
  petition holding that since the competent authority had
  removed the appellant from service, sanction uls 197
  CrPC was not warranted.
H                            824
    FAKHRUZAMMA v. STATE OF JHARKHAND                  825

    Dismissing the appeal, the Court                           A
     HELD: 1.1. Section 197 CrPC clearly indicates that
previous sanction is required for prosecuting only such
public servants who could be removed by sanction of the
Government. Clauses (a) and (b) of r.825 of the Jharkhand 8
Police Manual confer 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 C
General of Police need not obtain prior approval of the
State Government. In Nagrafs case a Three-Judge Bench
of this Court has held that an Inspector General of Police
can dismiss a Sub-Inspector and, therefore, no sanction
of the Stat•e Government for prosecution of the appellant
was necessary even if he had committed the offences D
alleged while acting or purporting to act in discharge of
this official duty. [para 7-8] [830-C; 831-B-E]

    Nagraj v. State of Mysore (1964) 3 SCR 671 =AIR 1964
SC 269 - relied on.                                            E
     Sankaran Moitra v. Sadhna Das & Anr. 2006 (3)
SCR 305 = (2006) 4 SCC 584; and Rakesh Kumar Mishra
v. State of Bihar & Ors. 2006 (1) SCR 124 = (2006) 1 SCC
557 - held inapplicable.
                                                               F
    1.2. The High Court was right in applying the ratio laid
down in Nagraj while interpreting the provisions of the
Jharkhand Police Manual and the view of the High Court
is endorsed. [para 9] [831-F-G]
                                                               G
                    Case Law Reference:
    2006 (1) SCR 124         held inapplicable    Para 4
    2006 (3) SCR 305         held inapplicable    Para 4
                                                               H
    826      SUPREME COURT REPORTS               [2013] 12 S.C.R.


A         (1964) 3 SCR 671        relied on             para 5

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2086 of 2013.

        From the Judgment and Order dated 09.09.2011 of the
8   High Court of Jharkhand at Ranchi in CRLMP No. 1669 of
    2006.

       S. K. Katriar, Manoj K. Srivastava, Rameshwar Prasad
    Goyal for the Appellant.
c
       Jayesh Gaurav, Anil K. Jha, Priyanka Tyagi, Mithilesh
    Kumar Singh for the Respondents.

          The Judgment of the Court was delivered by

D         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 befom prosecuting the
E 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
F Sections 456, 323, 504, 506, 342, 386, 201, 1208 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
G 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
H removed the Appellant from service, sanction to prosecute
    FAKHRUZAMMA v. STATE OF JHARKHAND                      827
          [K.S. RADHAKRISHNAN, J.]
under Section 197 Cr.P.C. was not warranted. Aggrieved by          A
the same, this appeal has been preferred.

     4. Shri S.K. Katriar, Senior Advocate, appearing for tile
Appellant, submitted that the High Court has committed an error
in holding that no sanction under Section 197(1) Cr.P.C. was       B
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       C
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             D
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       E
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].
                                                                   F
     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   G
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        H
    828          SUPREME COURT REPORTS              [2013] 12 S.C.R.


A 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
B 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
c 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
D
          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.

E          (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
F
                  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
G 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.
H
FAKHRUZAMMA v. STATE OF JHARKHAND                       829
      [K.S. RADHAKRISHNAN, J.]
(2) No Court shall take cognizance of any offence alleged      A
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.
                                                               B
(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       C
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    D
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     E
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     F
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          G
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
                                                               H
    830         SUPREME COURT REPORTS               [2013] 12 S.C.R.

A         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
B
          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
C 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
D 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
E         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.
F
          (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
G
          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
H
        FAKHRUZAMMA v. STATE OF JHARKHAND                       831
              [K.S. RADHAKRISHNAN, J.]

       information. If required, the file of departmental proceeding   A
       shall also be sent with it.
       (e)   xxx                    )()()(            )()()(


       (f)   )()()(                 )()()(            xxx."
                                                                       B
      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         C
Police need not obtain prior approval of the State Government.
A similar issue came up for consideration before this Court in
Nagrafs 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      D
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          E
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         F
the judgment of this Court in Nagrafs 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          G
and the same stands dismissed.

R.P.                                           Appeal dismissed.