March 27, 2006
A policeman cannot be prosecuted without sanction of the state under section 197 of the Criminal Procedure Code, even if he facing allegations of murder, the Supreme Court has ruled.
A three judge bench, comprising Chief Justice Y K Sabharwal, Mr Justice C K Thakker and Mr Justice P K Balasubramaniam handed down the ruling by a majority of 2:1, while quashing criminal proceedings against an Assistant Commissioner of Police in West Bengal, in their judgment of March 22,2006.
The appellant, ACP Sankaran Moitra along with Phoolbagan police station SHO S K Kundu and constable Sudhir Sikdar were charged with severely beating Robindronath Das, a worker of a political party on May 10, 2001 during the state assembly elections in West Bengal, leading to his death later.
His widow, Sadhna Das, filed a criminal complaint against the three policemen in the court of the Chief Judicial Magistrate, Alipore, under section 302 of the IPC. The magistrate issued summons to the accused persons.
Meanwhile, Moitra filed a petition in the High Court, seeking to quash the criminal proceedings against him but it rejected the plea in an order dated July 11, 2003. He then filed an appeal in the Supreme Court.
The majority judgment of the SC overruled the High Court findings that killing of a person by use of excessive force could never be construed as performance of duty, and also disagreed with its view that interference by the High Court on the grounds of want of sanction would lead to erosion of the faith of people in the judicial system.
The apex court ruled that is was "therefore satisfied that the High Court was in error in holding that sanction under section 197(1) CrPC was not needed in this case. We, thus, allow this appeal and set aside the order of the High Court only on the ground of want of sanction under section 197(1) CrPC." It however clarified that the observations herein would not prejudice the rights of the complainant in any prosecution after the requirements of section 197(1) CrPC were complied with.
However, Mr Justice Thakker, in his dissenting judgment, upheld the High Court's order and dismissed the appeal, holding that the HC order was in consonance with the well-settled principles of law and did not deserve interference under Article 136 of the Constitution.
The dissenting judge also took note of the partisan attitude of the police who did not arrest the culprit for three years ever after rejection of his anticipatory bail application by the High Court and the Supreme Court and held that no state sanction under section 197(1) CrPC was needed in the present case.