2000 JTR(SC) 728
2000 4 AICLR 321 ; 2000 41 AllCriC 653 ; 2000 3 EastCrC(SC) 909 ; 2000 8 JT 248 ; 2001 2 MWN(Cri) 38 ; 2000 4 PLJR(SC) 42 ; 2000 8 SCC 498 ; 2001 SCC(Cri) 17 ; 2001 1 SLT 520 ; 2000 KHC 4119
SUPREME COURT OF INDIA
K.T.Thomas : R.P.Sethi
Birendra K.Singh
Versus
State Of Bihar
Case No. : 340 of 2000
Date of Decision : 4/7/00
The objection regarding the requirement of sanction for prosecuting a public servant under Section 197 CrPC should be raised at the stage of arguments under Sections 227 and 228 CrPC, after the case is committed to the Court of Sessions.
Act
Referred
:CRIMINAL PROCEDURE CODE
: S.228, S.197, S.227, S.202(2)
INDIAN PENAL CODE: S.302
(A) Code of Criminal Procedure, 1973 - Sections 197, 202(2), 227 and 228 - Indian Penal Code, 1860 - Sections 302 and 34 - Objection regarding sanction for prosecution of a public servant - Stage of raising such objection - The stage for raising an objection regarding the lack of sanction as contemplated under Section 197 of the Code of Criminal Procedure is when the accused are called upon to address arguments under Sections 227 and 228 of the Code, provided the case is committed to the Court of Sessions - The advantage of waiting until this stage is that the order of committal would be supported by the materials envisaged in Section 202 of the Code, and the question can be considered in the light of such materials. (Para 3)
Facts of the case:
A police official was charged under Section 302 read with Section 34 of the Indian Penal Code following an incident of police firing. The official challenged the cognizance of the offence on the ground that the mandatory sanction under Section 197 of the Code of Criminal Procedure was not obtained. The High Court dismissed the petition, leading to the present appeal.
Findings of Court:
The court held that the objection regarding the lack of sanction under Section 197 of the Code should be raised at the stage of arguments under Sections 227 and 228 of the Code of Criminal Procedure in the Court of Sessions.
Issues: Whether the objection regarding the lack of sanction under Section 197 of the Code of Criminal Procedure is to be raised at the stage of issuing process or at the stage of arguments in the Court of Sessions.
Ratio Decidendi: The court ruled that the appropriate stage to raise the contention relating to sanction under Section 197 is during arguments under Sections 227 and 228 of the Code, because the order of committal would then be supported by materials collected under Section 202 of the Code, allowing for a more informed determination.
Result: Appeal disposed of.
Facts of the case:
A police official was charged under Section 302 read with Section 34 of the Indian Penal Code following an incident of police firing. The official challenged the cognizance of the offence on the ground that the mandatory sanction under Section 197 of the Code of Criminal Procedure was not obtained. The High Court dismissed the petition, leading to the present appeal.
Findings of Court:
The court held that the objection regarding the lack of sanction under Section 197 of the Code should be raised at the stage of arguments under Sections 227 and 228 of the Code of Criminal Procedure in the Court of Sessions.
Issues: Whether the objection regarding the lack of sanction under Section 197 of the Code of Criminal Procedure is to be raised at the stage of issuing process or at the stage of arguments in the Court of Sessions.
Ratio Decidendi: The court ruled that the appropriate stage to raise the contention relating to sanction under Section 197 is during arguments under Sections 227 and 228 of the Code, because the order of committal would then be supported by materials collected under Section 202 of the Code, allowing for a more informed determination.
Result: Appeal disposed of.
Compliance - Cited to explain the mandatory provisions contained in Section 202 (2) of the Code of Criminal Procedure.
(1) LEAVE granted.
(2) THE appellant is a Police Sub-Inspector. Now a complaint has been filed against him and some others for the offence under Section 302 read with Section 34 of the Indian Penal Code on the allegation, inter alia, that the person killed in a police firing was actually murdered by the appellant and his companions. The Magistrate issued process to the appellant and other accused persons. We are not aware whether the said process was issued after complying with the mandatory provision contained in Section 202 (2) of the Code of Criminal Procedure as explained by this Court in Roosy and Another v. State of Kerala and Others [JT 2000 (1) SC 84 = 2000 (2) SCC 230]. But the question now posed by the appellant was that the Magistrate ought not have taken cognizance of the offence without the sanction contemplated in Section 197 of the Criminal Procedure Code. The said objection was not accepted by the High Court and therefore, the petition filed by the appellant was dismissed as per the impugned order.
(3) WE are of the opinion that the stage for raising such objection could be when the accused are called upon to address arguments under Sections 227 and 228 of the Code of Criminal Procedure. Such a stage would reach only if the case is committed to the Court of Sessions. The advantage for the accused and the State as well as for the complainant to wait till then is that the order of committal would be supported by the materials envisaged in Section 202 of the Code and the question can be considered in the light of such materials also. We permit the appellant to raise the contention relating to sanction under Section 197 of the Code before the Sessions Court at the appropriate stage mentioned above. If any such contention is raised, the same shall be dealt with and disposed of by a speaking order by the Sessions Court untramelled by any observations made in the impugned order. It is needless to say that the appellant shall be released on bail if he files an application for the same on such conditions as the Chief Judicial Magistrate, Gaya, deems fit to impose.
(4) THE Appeal is disposed of accordingly.