M.J. George Vs. S.i. of Police - Court Judgment

Excerpt:
- orderu.l. bhat. j.1. the complainant in crl. m. p. no. 2360 of 1982 on the file of the judicial magistrate of the second class no. ii trichur, who filed the complaint against sub-inspector of police. anthicad police station alleging offences under sections 379 and 384. ipc. being aggrieved by the order of the magistrate dismissing the complaint for want of sanction under section 197 of the criminal p. c. has filed this criminal revision petition.2. there can be no doubt that sub-inspector of police is a public servant within the meaning of section 21 ipc. the question is whether a complaint against a sub-inspector of police would fall within sub-section (1) of section 197 of the criminal p. c. in which case alone sanction of the state government will be necessary for any prosecution. the.....

Judgment:
ORDER

U.L. Bhat. J.

1. The complainant in Crl. M. P. No. 2360 of 1982 on the file of the Judicial Magistrate of the Second Class No. II Trichur, who filed the complaint against Sub-Inspector of Police. Anthicad Police Station alleging offences under Sections 379 and 384. IPC. being aggrieved by the order of the Magistrate dismissing the complaint for want of sanction under Section 197 of the Criminal P. C. has filed this criminal revision petition.

2. There can be no doubt that Sub-Inspector of Police is a public servant within the meaning of Section 21 IPC. The question is whether a complaint against a Sub-Inspector of police would fall within Sub-section (1) of Section 197 of the Criminal P. C. in which case alone sanction of the State Government will be necessary for any prosecution. The learned Magistrate took the view that Section 197(1) will apply in the case of prosecution of a Sub-Inspector of police and this view is contested by the revision petitioner.

3. The main part of Sub-section (1) of Section 197 reads thus ;

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction....

(Emphasis supplied)

In order that the above provision should apply in the case of a public servant other than a Judge or a Magistrate, the status or position of the public servant should be such that he is not removable from his office save by or with the sanction of the Government. The question therefore is whether a Sub-Inspector of Police in the State is not removable from his office save by or with the sanction of the Government, It is only where this condition applies that sanction can be held necessary. Learned Magistrate did not address himself. to this question at all.

4. It will be useful to advert to some of the provisions of the Kerala Police Act. 1960. Section 2(9) defines 'subordinate police' as meaning all police officers below the rank of an Inspector. There are other provisions in the Act where specific reference is made to rank of a Sub-Inspector. For example. Section 25 refers to a notification being issued by any Magistrate or any police officer not below the rank of a Sub-Inspector. The legislature has maintained a distinction between an Inspector and a Sub-Inspector. Sub-Inspectors of Police are not members of the Kerala Police Service but are members of the Kerala Subordinate Police Service. Obviously therefore Sub-Inspectors of police are members of the Subordinate Service for the purpose of Section 2(9) of the Kerala Police Act. Section 6 of the Kerala Police Act states, inter alia, that subject to Article 311 of the Constitution and rules made by the Government under the Act, the Inspector General. Deputy Inspector General. Asst. Inspector General and Superintendents of police may. at any time, dismiss, remove, suspend or reduce to a lower post ... any officer of the subordinate police whom they shall think remiss or negligent to the discharge of his duty or otherwise unfit for the same ...'. Under this provision, the superior Police Officers holding ranks indicated in the section have power to dismiss or remove an officer of the subordinate service; they have power to dismiss or remove from service a Sub-Inspector of Police.

5. The same conclusion could be arrived at on a consideration of the provisions of the Kerala Police. Departmental Inquiries. Punishment and Appeal Rules. 1958, Rule 15 enumerates various penalties which could be imposed upon members of the Police service. Clauses (k) to (m) of Sub-rule (1) of Rule 15 mention compulsory retirement, removal from service of the State Government and dismissal from service of the State Government. Rule 16 states inter alia, that members of the service on whom the penalties mentioned in Rule 15 may be imposed, the lowest authorities competent to impose such penalties, and the appellate authorities empowered to receive appeals shall be as shown in the annexure appended to the rules. Columns 8 and 9 refer to the power of imposing the punishment of compulsory retirement or removal or dismissal, item. 5 of the annexure deals with Sub-Inspector and certain other officers. Columns 8 and 9 show that Deputy Inspector General of Police concerned is-competent to impose the punishment of compulsory retirement or removal or dismissal. Thus, even going by the rules, it is evident that an officer of the rank of Deputy Inspector General of Police has the power to remove or dismiss a-Sub-Inspector from service of the Government. There is nothing in the provisions of the Kerala Police Act or the rules requiring previous sanction of the Government before a D. I. G. of Police or inspector General of Police could remove from service a Sub-Inspector of Police.

6. It is thus clear that a Sub-Inspector of Police, though a public servant. is not one who is 'not removable from his office save by or with the sanction of the Government.' Therefore, the provision in Sub-section (1) of Section 197 of the Code does not apply in the case of prosecution launched against a Sub-Inspector of Police under the State Government, The learned Magistrate was in error in holding that sanction was necessary for the prosecution. In this view, it is unnecessary for me to consider the second limb of the argument advanced on behalf of the petitioner to the effect that even assuming that sanction is necessary, in. this case. circumstances are such that the offence alleged to have been committed by him was not committed while acting or purporting to act in exercise of his official duty.

7. In the result, the impugned order is set aside. The learned Magistrate will take back the complaint to his file and proceed according to law. The revision petition is allowed in this manner.