S. 197 CrPC | Subsequent Extension Of Sanction Requirement Won't Invalidate Cognizance Taken When There Was No Bar : Supreme Court

The Supreme Court on Wednesday (April 1) observed that a later extension of sanction protection under Section 197 of the Code of Criminal Procedure cannot be invoked to defeat proceedings that were initiated at a time when no such bar existed.

A bench comprising Justice JB Pardiwala and Justice Manoj Misra upheld the criminal proceedings against a subordinate rank officer of the Calcutta Police force, against whom cognizance of an offence was taken before the extension of the benefit of Section 197 CrPC to all subordinate rank officers of the Calcutta Police.

The bench upheld the Calcutta High Court's ruling, noting that since on the date of commission of an alleged offence (in the year 2000), no sanction was required to prosecute the Appellant, a subsequent notification (issue in 2010) extending the benefit of Section 197 CrPC to the Appellant cannot nullify the proceedings already commenced.

“…a subsequent bar on taking a cognizance of an offence against a public servant, would not invalidate the proceedings already commenced upon taking a cognizance of an offence against a public servant when there was no requirement of sanction for prosecution.”, the court observed.

As per Fakhruzamma v. State of Jharkhand, (2013) 15 SCC 552, a previous sanction is required for prosecuting only such public servants who could be removed by the Government. Since the Appellant, being a officer-in-charge of a police station was not directly removable by the government, the Court said the benefit of Section 197 CrPC couldn't have been availed by him. He cannot rely on a subsequent notification issued in 2010 extending the benefit of Section 197 CrPC to all sub-ordinate police personnel of the Calcutta Police.

The case arose from a criminal complaint filed in 2001 alleging that three police officials were involved in the custodial killing of the complainant's husband. At the time the Magistrate took cognizance of the offence, subordinate police officials such as constables and station-level officers did not enjoy protection under Section 197 Cr.P.C., which requires prior government sanction for prosecution of certain public servants.

Nearly a decade later, on November 19, 2010, the West Bengal Government issued a notification under Section 197(3), extending sanction protection to subordinate police ranks involved in maintaining public order. Relying on this notification, the accused officers argued that the proceedings against them could not continue without prior sanction and sought quashing of the case.

Affirming the High Court's decision, the judgment authored by Justice Misra observed that the crucial point for determining the applicability of Section 197 is the date on which cognizance is taken, not subsequent developments in law.

According to the Court, once cognizance is validly taken in the absence of such a bar, later legal changes cannot undo the proceedings.

“…the notification(s) would not affect those proceedings where cognizance was not barred when taken.”, the court said, reiterating that “the benefit of Section 197 is not available to the appellants.”

Accordingly, the appeal was dismissed.

Headnote

Code of Criminal Procedure, 1973 – Section 197 – Sanction for Prosecution – Applicability of subsequent notification to prior cognizance – Held that the bar under Section 197 of Cr.P.C. applies at the stage of taking cognizance - A notification issued under Section 197(3) extending protection to subordinate police officers does not have a retrospective effect on proceedings where cognizance was already validly taken before the issuance of such notification - A post-cognizance sanction or a subsequent bar cannot nullify a validly passed cognizance order.

Code of Criminal Procedure, 1973 – Section 197(1) – Protection of Public Servants – Protection under Section 197(1) is only available to public servants who are "not removable from his office save by or with the sanction of the Government." - Subordinate rank police officers who can be dismissed by an Inspector General of Police or other departmental heads without State Government sanction do not fall under this category.

Code of Criminal Procedure, 1973 – Section 197(3) – State Government Notification – While the State Government has the power to extend Section 197(2) protection to members of forces charged with maintaining public order via notification, such protection only applies to the act of "taking cognizance." - If no bar existed on the date the court took cognizance, the trial can proceed despite a later notification. [Relied on Nagraj v. State of Mysore (AIR 1964 SC 269); Fakhruzamma v. State of Jharkhand (2013 15 SCC 552); Paras 10-15]

Cause Title: SAMARENDRA NATH KUNDU & ANR. VERSUS SADHANA DAS & ANR.

Citation : 2026 LiveLaw (SC) 314

Click here to download judgment

Appearance:

For Appellant(s) Mr. Raj Kamal, AOR Ms. Pallavi Malhotra, Adv. Ms. Muskan Sidana, Adv. Mr. Aseem Atwal, Adv. Mr. Anurag Chandra, Adv. Ms. Nupur Kaushik, Adv.

For Respondent(s) Mr. Mangaljit Mukherjee, Adv. Mr. Ranjan Mukherjee, AOR Ms. Astha Sharma, AOR Mr. Sanjeev Kaushik, Adv. Mr. Simranjeet Singh Rekhi, Adv. Ms. Muskan Surana, Adv.