High Court of Punjab and HaryanaCRM-M/44680/2021disposed of

Muniya Devi v. State Of Haryana

2023-12-08Mr. Justice Deepak Gupta6 pages

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,2.( "197 /'1 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. /61 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 provisions of that sub section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted."

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B 0 "In the exercise of the power conferred by subsection (3) of Section 197 of the Code of Criminal Procedure 1973 (Central Act 2 of 1974), the Governor of Haryana hereby directs that the provisions of subsection (2) of the said Section shall apply to serving police officials of all ranks of the Haryana Police force charged with the maintenance of public order." ,-

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$ ) "Thus, on a plain reading of the aforesaid notification, it is abundantly clear that the State Government in exercise of powers conferred by subsection

(3) of Section 197 of the Code of Criminal Procedure 1973 has issued a notification directing that provisions of subsection (2) of the said section shall apply to serving police officials. In another words, before launching any prosecution against any person who is a public servant and discharging his duties, sanction has to be given by the State Government and not by his appointing authority. In 4!5 2.

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it has been held as under:

10. It is thus apparent that the State Government in exercise of powers under subsection (3) of the Code of Section 197 of the Code of Criminal Procedure has issued this notification directing that the provisions of subsection (2) ibid shall apply to serving police officials. In other words, before launching prosecution under Section 197 of the Code of Criminal Procedure against serving police officials, the sanction of the State Government (and not merely of the Superintendent of Police as in the instant case) was required with effect from 5.5.1983, viz., the date of this notification. The learned counsel for the petitioners, therefore argued that the prosecution against the petitioners is liable to be quashed for want of a valid sanction to be accorded by the respondent No. 1, in accordance with the above referred Notification. The learned Assistant Advocate General was unable to show that any valid sanction had been accorded by the State Government for the prosecution of the petitioners under Section 197(2) of the Code of Criminal Procedure having regard to the

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Notification of the Punjab Government dated 5.5.1983 referred to above. The contention of the learned Counsel for the petitioners appears to be well founded that the sanction for the prosecution of the petitioners in this case should have been accorded by the State Government and not by respondent No.2, even though the latter is their appointing authority. The final report under Section 173 of the Code of Criminal Procedure filed against the petitioners is, therefore, also liable to be quashed because of the noncompliance of the provisions of Section 197 (2) of the Code of Criminal Procedure. However, the State Government is not precluded from launching prosecution against the petitioners afresh after valid sanction has been accorded for the prosecution of the petitioners under Section 197 (2) of the Code of Criminal Procedure keeping in view the Notification issued by the State Government on 5.5.1983." ,,

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$ case (supra), D $($ "To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act." ,'

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$ case (supra), ($ $ "It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it has been satisfied that a case for sanction has been made out constituting the offence. The grant of sanction is not an idle formality or an acrimonious but a solemn and sacrosanct act which

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affords a protection to Government servants against frivolous prosecution and must, therefore, be strictly complied with before any prosecution and must, therefore, be strictly complied with before any prosecution can be launched against the public servant concerned."

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