Sanction; Ram Rekha Pandey Vs. State of Bihar [Patna High Court, 24-06-2016]

Criminal Procedure Code, 1973 – Section 197 (3) – Sanction – Bihar Police Force – Notification – No Court can take cognizance of an offence, alleged to have been committed by a member of Bihar Police Force; charged with maintenance of public order, while acting or purporting to act in discharge of his official duty except with the previous sanction of the State Government.

Sanction u/s. 197 Cr.P.C.


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE ACTING CHIEF JUSTICE and HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

Date: 24/06/2016

Criminal Miscellaneous No.4665 of 1991

Arising Out of Complaint Case No. 256 Year-1990 District- Muzaffarpur

Sri Ram Rekha Pandey, S/o Sri Sukhdeo Pandey, resident of Village-Koeli, P.S.- Nanpur, District-Sitamarhi; Petitioner Versus 1. The State of Bihar 2. Sri Parmeshwar Ram, S/o Late Patiram, Inspector, Custom, Muzaffarpur; Opposite Parties

Appearance : For the Petitioner/s : Mr. T.P. Verma, Advocate For the Opposite Party/s : Mr. Anjani Kumar, AAG6 Mr. Jharkhandi Upadhyay, A.P.P.

JUDGMENT

(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Invoking the provisions as contained in

Sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973

(hereinafter referred to as the Cr.P.C.), the Government of Bihar, by a notification, dated 16.05.1980, published in the official gazette, has declared that the provisions of Sub-section (2) of the said Section shall apply to the “Officers and men” wherever they may be serving the State of Bihar of the Bihar Police Force, charged with maintenance of public order and who have been appointed by the Inspector General of Police, Bihar, or any other Officer specially authorized to appoint any such person of such force under the Police Act, 1961. The effect of the said notification is that no Court can take cognizance of an offence, alleged to have been committed by a member of Bihar Police Force; charged with maintenance of public order, while acting or purporting to act in discharge of his official duty except with the previous sanction of the State Government.

2. Relying on the said notification, the petitioner, who, admittedly, at the relevant point of time, was posted as Officer-in- Charge of Government Rail Police Station, at Muzaffarpur, has sought for quashing of an order, dated 01.04.1991, passed by the learned Chief Judicial Magistrate, Muzaffarpur, whereby the learned Chief Judicial Magistrate, Muzaffarpur has taken cognizance of the offences punishable under Sections 147, 323, 353, 342 and 379 of the Indian Penal Code, through present application made under Section 482 of the Code of Criminal Procedure.

3. When the matter was taken up by a learned single Judge of this Court, on 14.05.1991, in addition to the said notification, the petitioner relied on a Single Bench decision of this Court in the case of

Ram Swarath Yadav and Anr. v. Dr Rajeshwar Prasad Sinha and Ors. reported in 1990 BBCJ 765

and a Division Bench decision of Gujarat High Court in the case of

Bhikhaji Vaghaji v. Barot and others reported in 1992 Crl. LJ 2014

4. Learned single Judge of this Court expressed his inability to accept the view taken by the learned single Judge of this Court in case of Ram Swarath Yadav (supra) and also expressed his disagreement with Division Bench decision of Gujarat High Court in the case of Bhikhaji Vaghaji (supra). Learned single Judge was of the view that the said notification, dated 16.05.1980, was wholly unwarranted, illegal and beyond jurisdiction as the word „force‟ occurring in Sub-section 3 of Section 197 of the Code of Criminal Procedure, should be construed to mean ‘Army’ when deployed in a State or States in the case of emergency including for maintenance of public order.

5. Learned single Judge, accordingly, referred the matter for consideration by a Division Bench in following terms:-

“Thus I understand that the provisions contained in sub-section (3) of section 197 of the Code lays down that the State Government may notify that the provision of sub-section (2) shall apply to such class or category of member of force, i.e., the Army charged with the maintenance of public order, as may be specified in the notification and thus in such a situation State Government will be the competent authority to accord sanction for prosecution of the class of Army as discussed above in place of Central Government as provided under sub-section (2) of section 197 of the Code. If sub-section (3) is interpreted in this way there will be no conflict with the provisions contained in sub-section (1) of section 197 of the Code, since the Army has been treated as a different class of public servants which are not covered by sub-section (1).

For the aforesaid reasons, I am of the view that the notification relied upon by the petitioner in the case of Sri Ram Swarath Yadav (Supra) as well as in this case, issued by the State Government is unwarranted, illegal and without jurisdiction but since there are decisions on this point, which are contrary to my view, and an important question of law, having far reaching consequences, is involved in this case, therefore, this application should be heard by a Division Bench.”

6. When the matter came up for consideration before a Division Bench of this Court, the Division Bench thought it proper to refer the point for consideration to a larger Bench by an order, dated 19.03.1998, recording as follows:-

“In this case, moot question arises for consideration-whether the State Government in exercise of its power conferred by sub-section (3) of Section 197 of the Code of Criminal Procedure (in short „the Code‟), can issue a notification declaring that the provisions of sub-section (2) of the said Section shall apply to the officers and men wherever they may be serving, the State of Bihar in the Bihar Police Force charged with the maintenance of public order and who have been appointed by the Inspector General of Police, Bihar or any other officer specially authorized to appoint any person to such force under the Police Act.

2. As per sub-section (1) of Section 197 of the Code, no previous sanction is required for the class of public servants who do not fall within the category defined in that sub-section. In other words, previous sanction would only be necessary for those class of officers who are removable from service by the Central Government or the State Government as the case may be. No such distinction has been made in sub-section (2) of Section 197 of the Code. As per this provision, previous sanction of the Central Government is required before taking cognizance of any offence alleged to have been committed by any member of the armed force.

3. A learned Single Judge of this Court in the case of Sri Ram Swarath Yadav and anr. v. Dr Rajeshwar Prasad Sinha (1990 BBCJ 765), while placing reliance on a Division Bench decision of the Gujarat High Court in the case of Bhikhaji Vaghaji v. Barot and others (1982 Crl. L.J. 2014), has held that in terms of the notification issued under sub- section (3) of section 197 of the Code, previous sanction would be necessary even in a case of Officer Incharge of the Police Station charged with the maintenance of public order.

4. Having regard to the aforesaid decisions, we feel inclined to refer this case to a larger Bench.

Accordingly, let the records of this case be placed before the Hon‟ble the Chief Justice for necessary orders.”

7. This is the background in which the present matter has been placed before the full bench for consideration.

8. Submissions have been advanced at length on behalf of the petitioner and the State of Bihar justifying the correctness of the notification. However, in view of recent decision of the Supreme Court in case of