Law on Sanction to Prosecute Police Officials

8/19/2019 Law on Sanction to Prosecute Police Officials

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Discussion on sanction to prosecute a Delhi Police official: prepared by Rakesh Kumar Singh 1

Discussion on sanction to prosecute a Delhi Police official:

prepared by Rakesh Kumar Singh

************************

We know that if a public servant is to be prosecuted for an offence which has ensued from any

act concerning his official duty, a sanction of appropriate authority would be a pre-requisite. In the present

paper, we are not going to consider as what are the acts/circumstances which may fall within the ambit

of duty. We would be considering only as to what are the protection available to police official once

factum of duty part is accepted. The question arises because several police officials are removable by the

different level of other police officials and not by a state government and therefore someone may say that

they are not protected.

2. For better appreciation, Section- 197 CrPC may be reproduced as under:

“197. Prosecution of Judges and public servants.- (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 save as otherwise provided in the

Lokpal and Lokayuktas Act, 2013-

(a) in the case of a person who is employed or, as the case may be,

was at the time of commission of the alleged offence employed, in

connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be,

was at the time of commission of the alleged offence employed, in

connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person

referred to in clause (b) during the period while a Proclamation

issued under clause (1) of Article 356 of the Constitution was in

force in a State, clause (b) will apply as if for the expression "state

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Government" occurring therein, the expression "Central

Government" were substituted.

Explanation.—For the removal of doubts it is hereby declared that

no sanction shall be required in case of a public servant accused of

any offence alleged to have been committed under section 166A,

section 166B, section 354, section 354A, section 354B, section

354C, section 3540, section 370, section 375, section 376, section

376A, section 376C, section 376D or section 509 of the Indian Penal

Code.

(2) 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.

(3) 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 publicorder 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.

(3A) Notwithstanding anything contained in subsection (3), no court

shall take cognizance of any offence, alleged to have been

committed by any member of the Forces charged with the

maintenance of public order in a State while acting or purporting to

act in the discharge of his official duty during the period while a

Proclamation issued under clause (1) of Article 356 of the

Constitution was in force therein, except with the previous sanction

of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this

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Code or any other law, it is hereby declared that any sanction

accorded by the State Government or any cognizance taken by a

court upon such sanction, during the period commencing on the 20th

day of August, 1991 and ending with the date immediately

preceding the date on which the Code of Criminal Procedure

(Amendment) Act, 1991, receives the assent of the President, with

respect to an offence alleged to have been committed during the

period while a Proclamation issued under clause (1) of Article 356

of the Constitution was in force in the State, shall be invalid and it

shall be competent for the Central Government in such matter to

accord sanction and for the court to take cognizance thereon.

(4) The Central Government or the State Government, as the case

may be, may determine the person by whom, the manner in which,

and the offence or offences for which, the prosecution of such Judge,

Magistrate or public servant is to be conducted, and may specify the

Court before which the trial is to be held.”

3. What is of some interest is the specific stipulation that sanction would be needed only in respect

of those public servant who are removable by the government. Pertinently, the provision does not

contemplate anything about appointing authority. The only important personality is the removing

authority. Meaning thereby that if a public servant is can be removed by any authority which is not a

government, he shall have no protection of the provision.

4. Two provisions of Delhi Police Act are relevant at this juncture and they read as under:

“Section-21. Powers of punishment. (1) Subject to the provisions of

Art. 311 of the Constitution and the rules, the Commissioner of

Police, Additional Commissioner of Police, Deputy Commissioner

of Police, Additional Deputy Commissioner of Police, Principal of

the Police Training College or of the Police Training School or any

other officer of equivalent rank, may award to any police officer of

subordinate rank any of the following punishments, namely: (a)

dismissal; (b) removal from service; ….....”

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“Section-2(s) “subordinate ranks” means members of the police

force of and below the rank of the Inspector;”

5. Meaning thereby that any police official upto the rank of inspector is a subordinate rank official

and is removable from the service even by additional deputy commissioner who obviously cannot be

termed as government. Naturally, therefore, any police official upto the rank of inspector would not have

any protection on the ground of sanction.

6. A three judges bench of Hon'ble Supreme Court in Nagraj v. State of Mysore AIR 1964 SC 269

was dealing with the situation of police and made following observation:

“It follows that the Inspector-General of Police can dismiss a Sub-

Inspector who is a police officer below the grade of Assistant

Superintendent. No sanction therefore, of the State Government for

the prosecution of the appellant was necessary even if he had

committed the offence alleged while acting or purporting to act in

the discharge of his official duty.”

7. Similar line of reasoning was recently adopted by the Ho'ble Supreme Court in Fakhruzamma

vs State of Jharkhand 2013 (15) Scale 159.

8. It is therefore clear that there is hardly any problem till this point of discussion and we may

say with certainty that a delhi police official upto the rank of inspector is not protected by the

provision of sanction.

9. Now comes the sub-section-2 of Section-197 CrPC. It independently of sub-section-1 provides a

protection to officials of union armed forces if the offence ensued from the acts concerning the duties of

such official. There is no co-relation between sub-section-1 & 2. There is nothing to suggest that such

official should be removable by the government unlike sub-section-1. The protection granted by sub-

section-2 applies irrespective of ranks or authorities empowered to remove or appoint and therefore

covers every member of such armed forces. No doubt, Delhi Police is not an armed force of the Union.

Then why the discussion is proceeding in this direction is the natural question. Sub-section-3 has

potential to answer.

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10. Sub-section-3 empowers a state government to extend the benefit of sub-section-2 to any member

of a force which is charged with the maintenance of public order. To be precise, it reads as under:

“Section-197(3) 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.”

11. For proper understanding, we may divide the provision in parts and thereupon the same would

read:

“i) The State Government may,

ii) by notification, direct that the provisions of sub-section (2)

shall apply

iii) to such class or category of the members of

iv) the Forces charged with the maintenance of public orderv) as may be specified therein,

vi) wherever they may be serving,

vii) 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.”

12. Properly understood, it becomes clear at once that the expression “as may be specified therein”

indicates the members who may be specified in the notification for taking the benefit. The other

expression “wherever they may be serving” also indicates the members only. It is expression given in the

fourth line supra which is the real cause of confusion. The expression is “maintenance of public order”.

There may be an argument that the members must be charged with the maintenance of public order to

get the protection. The assumption however on its face is fallacious. Duties of a person in government

service remain in ever changing scenario. It may not be the case that person-A is always charged with a

particular assignment. Police duty is a very dynamic kind of thing. Public order is a situational thing.

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Person-A may not be deputed on public order duty on every occasion. Does the sub-section-3

contemplates that on every occasion when some persons/or some new persons are deputed for

maintaining public order, the state government should issue a notification? I think this would be virtually

impossible. Additionally, this thinking would defeat the expression “wherever they may be serving” as

this interpretation would require specificity of serving. Therefore this kind of interpretation cannot be

given to provision. The correct interpretation would be as indicated in the fourth line supra i.e. “the

Forces charged with the maintenance of public order”. Means, it is the force which has to be charged

with the maintenance of public order and not any specific member thereof. It is then that the class or

category of members may be specified in the notification irrespective of the place wherever they may be

serving.

13. There are two Supreme Court judgments on the point in question. Both are seemingly on

contradictory terms. In the later part of the present discussion, we would be required to ascertain as to

which judgment should be followed in view of the doctrine of precedent.

14. In Romesh Lal Jain vs Naginder Singh Rana (2006) 1 SCC 294, it was observed as under:

“The expression 'public order' has a distinct connotation.

Investigation into the offence under the Essential Commodities Act

may not be equated with the maintenance of public order as is

commonly understood. The activities of a single individual giving

rise to irregularities of maintenance of books of accounts as regard

an essential commodity or resorting to the black marketing, unless a

volatile situation arises therefrom, cannot lead to disturbance of

public peace, safety and tranquility, which are essential requisites of

a 'public order'.

The said notification is, therefore, has no application in the facts and

circumstances of the case and consequently it has to be held that no

sanction by the State in terms of Section 197 Cr. P.C. was necessary

as the Respondent could be removed from service by the Deputy

Inspector General of Police and not by or with the sanction of the

Government.”

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15. In Rizwan Ahmed Javed Shaikh & Ors vs Jammal Patel AIR 2001 SC 2198, it observed as

under:

“In the case of Bhikhaji Vaghaji (supra) the notification dated

15.5.1974 issued by the State Government under Section 197(3) of

the Code of Criminal Procedure provided that the provisions of sub-

section (2) of the said section shall apply to the police officers as

defined by clause (11) of section 2 of the Bombay Police Act,

1951..charged with the maintenance of public order. The Division

Bench held that the phrase charged with the maintenance of public

order occurring in the notification dated 15.5.1974 and also

occurring in sub- section (3) of Section 197 is obviously an

adjectival phrase and it cannot be interpreted to mean a phrase

suggesting the time when such members of the police force are to

avail themselves of the exemption of protection contemplated by

sub-section (2) of Section 197 of the Code. The protection was

extended to a member of the police force charged with the

maintenance of public order though the act in question which was

alleged to be an offence committed by the accused persons was notreferable to his duty to maintain public order.

We find ourselves in agreement with the view taken by the Division

Bench of the Gujarat High Court in the case of Bhikhaji Vaghaji and

therefore, also with the view taken by Division Bench of Bombay

High Court in the order under appeal. The submission made by the

learned counsel for the appellants confuses the issue as to

applicability of notification with the span of protective umbrella or

the purview or compass of such sub- section (2) of Section 197 of

the Code. The person on whom the protection is sought to be

conferred by the State Government notification is to be determined

by reading the notification and once it is found that the State

Government notification applies to the member of the force which

the accused is, the scope, purview or compass of the protection has

to be determined by reading sub-section (2) of Section 197 of the

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Code, i.e., by asking a question whether the act alleged to be an

offence was done or purports to have been done in the discharge of

the official duty of the accused. Such official duty need not

necessarily be one related to the maintenance of public order.

****

The phrase maintenance of public order in the context before us need

not be assigned a narrow meaning as is assigned to in preventive

detention matters. The police officers do discharge duties relating to

maintenance of public order in its wider sense. The notification

therefore applies to members of Bombay police force.”

16. Both the aforesaid judgments are in respect of applicability of Section-197(3) though of different

states' notification. The question therefore is that which judgment is to be followed.

17. A constitution bench of Hon'ble Supreme Court in Union of India vs Raghubir Singh 1989 (2)

SCC 754 has held as under:

“…..the statement of the law by a Division Bench is considered

binding on a Division Bench of the same or lesser number of Judges.

This principle has been followed in India by several generations of

Judges. …”

18. Hon'ble Supreme Court in Sundeep Kumar Bafna vs State of Maharashtra (2014) 16 SCC 623

has held as under:

“If the third sentence of para 48 is discordant to Niranjan Singh, the

view of the coordinate Bench of earlier vintage must prevail, and

this discipline demands and constrains us also to adhere to Niranjan

Singh....

***

It is often encountered in High Courts that two or more mutually

irreconcilable decisions of the Supreme Court are cited at the Bar.

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We think that the inviolable recourse is to apply the earliest view as

the succeeding ones would fall in the category of per incuriam.”

19. On the concept of doctrine of precedent therefore, one would definitely choose the earlier

judgment in time as both the judgments (Rizwan Ahmed and Romesh Lal Jain) are of equal strength.

Therefore, according to Rizwan Ahmed (supra), Section-197(3) will apply to all members of Police

Force once notification says so.

20. On 07.04.1980, Lt. Governor of Delhi issued the following notification No. F. 10/77/78-HP-II:

“In exercise of the powers conferred upon him under sub-section (3)

of Section 197 of the Code of Criminal Procedure 1973 read with

Govt. of India Notification No. S.O. 183(E) dated 20th March 1974,

the Lt. Governor Delhi is hereby pleased to direct that the provisions

of sub-section (2) of the said section shall apply to serving police

officials of all ranks of Delhi police forces charged with the

maintenance of public order.”

21. The aforesaid notification clearly stipulates that protective umbrella of sub-section-2 will be

available to police officials of all rank. The notification read with the judgment in Rizwan Ahmed case

will provide that the protection will be available to every member of delhi police.

22. The aforesaid notification was subject matter of controversy. In Crl.M (Main) No.-551 of 1982

dated 01.12.1982, the Hon'ble High Court of Delhi Declared the aforesaid notification as ultra vires.

However, subsequently, the Hon'ble Supreme Court in Delhi Administration vs D. N. Kadian 1986 (1)

SCC 410 set aside the ultra vires declaration in following manner:

“For the reasons stated hereinbefore the Appeal filed by the Delhi

Administration succeeds and is allowed and the Appeal filed by the

accused is dismissed. The Judgment and Order of the High Court

declaring the impugned notification dated 7th April, 1980 issued by

the Lt. Governor of Delhi to be ultra vires is set aside and the learned

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Magistrate is directed to proceed with the case in accordance with

law.”

23. It would be interesting to note that in the aforesaid judgment, a challenge was also laid by the

police officials of subordinate rank and the Court made following observation:

“This notification was made in exercise of powers conferred upon

the administrator under Sub Section (3) of Sec. 197 of the Code of

Criminal Procedure read with the Government of India Notification

Dated March 20, 1974 mentioned before Reading these two

notifications together, it is crystal clear that to start a proceeding

against the members of all ranks of Delhi Police Officials in a

Criminal Court, previous sanction of the Lt. Governor is imperative,

provided the offence alleged to have been committed by such

members of the Delhi Police Force has been committed while acting

or purporting to act in discharge of their official duty.”

24. Therefore, apart from the reasons earlier cited, we are having a direct authority applicable for

Delhi Police to say that the notification issued under Section-197(3) appllies to all ranks of Delhi Polcie.

25. It would be interesting to know that law has used the expression “the members of the Forces

charged with the maintenance of public order” in one more document i.e. the mother document of all

laws, the Constitution of India. Article-33 to the relevant extent reads as under:

“33. Power of Parliament to modify the rights conferred by this

Part in their application to Forces, etc.—Parliament may, by law,

determine to what extent any of the rights conferred by this Part shall,

in their application to,—

xxxxxxx

(b) the members of the Forces charged with the maintenance of

public order; or

xxxxxxx”

26. This provision empowers the Parliament to put restrictions on fundamental rights of members of

the forces charged with the maintenance of public order. In exercise of the above power, the Parliament

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enacted the police forces (restrictions of rights) act 1966 providing several restirctions including

formation of union, press communication, demonstration.

27. Are we going to say that any law if made under this Article will put restrictions only when such

members are actually deputed on maintenance of public order and on other times they can enjoy all the

fundamental rights without restrictions. Answer is bound to be in negative. Words “maintenance of public

order” connect itself to the “forces” and not to individual members thereof who are actually deputed on

duty on different occasions.

28. In Delhi Police Non-gazetted Karmchari Sangh vs Union of India 1987(1) SCC 115, the

Hon'ble Supreme Court was dealing with a challenge posed by union of non-gazetted delhi police

personnels and observed as under:

“That the Sangh and its members come within the ambit of Article

33 cannot be disputed.**** Here we have an entirely different

situation since we are dealing with a group distinct in its nature and

composition from others. Here we are dealing with a force that is

invested with powers to maintain public order.”

29. There is nothing to show in the aforesaid judgment that the subordinate rank delhi police officials

fall within the ambit of Article-33 only when they are actually deputed for maintenance of public order.

30. From the above referred discussion, it can be said with certainty that it is the force which is to be

considered as charged with maintenance of public order and once it is found so such as the Delhi police

force and a notification under Section-197(3) is issued by the state government covering all the

personnels of Delhi Police, there will remain no doubt that all delhi police personnel will be covered by

protection granted by Section-197(2) irrespective of the rank. In Delhi, a notification issued underSection-197(3) exists and the validity thereof has been upheld by the Hon'ble Supreme Court in 1986

(1) SCC 410 and the notification covers all personnels of Delhi Police. As such, every personnel of Delhi

Police is protected by immunity granted by Section-197(2) irrespective of his rank.

31. Now coming to the another bar in prosecuting a official of Delhi Police for an offence ensuing

due to act concerning his duty. The bar is contained in Section-140 of Delhi Police Act, 1978 which to

the relevant extent reads as under:

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“Section 140: Bar to suits and prosecutions: (1) In any case of

alleged offence by a police officer or other person, or of a wrong

alleged to have been done by such police officer or other person, by

any act done under colour of duty or authority or in excess of any

such duty or authority, or wherein it shall appear to the court that the

offence or wrong if committed or done was of the character aforesaid,

the prosecution or suit shall not be entertained and if entertained

shall be dismissed if it is instituted, more than three months after the

date of the act complained of: Provided that any such prosecution

against a police officer or other person may be entertained by the

court, if instituted with the previous sanction of the Administrator,

within one year from the date of the offence...............”

32. A bare look at the aforesaid provision goes to show that it only relates to the period of limitation.

Primarily, it says that the prosecution needs to be instituted within three months from the activity. And

additionaly, it enlarges the period upto one year if the Administrator (presently known as LG) grants

prior sanction.

33. A division bench of Hon'ble High Court of Delhi in State (Delhi Administration) vs Sube Singh

1985 CriLJ 1190 has held as under:

“Section 140, Delhi Police Act is not applicable as it only lays down

the period of limitation within which the cognizance can be taken by

the court.”

34. Further, Hon'ble High Court of Delhi in Rakesh Kumar vs State ILR (2009) 5 Del 309 has held

that even the sanction of the LG ought to have been obtained within the period of one year. The relevant

observations are as under:

“I find that in the facts of this case, the sanction was not obtained

within the period of limitation, as per the provisions of Section 140

of the Delhi Police Act. The offence herein was admittedly

committed on 3.1.2002, thus limitation for obtaining the previous

sanction of the administrator for institution of the criminal

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prosecution under Section 140 of the Delhi Police Act, expired on

2.1.2003. The challan in this case was filed in the court by the

prosecution on 12-13.5.2003 without obtaining the previous sanction

from the administrator. The sanction for institution of criminal

proceedings was obtained on 23.9.2003. Thus it is crystal clear that

the sanction for prosecution was obtained well after the period of

limitation was over.

****

Having considered the fact that on account of the basic lacunae, the

complaint is not likely to succeed, there would be no useful purpose

in keeping the same pending. In the facts and circumstances of this

case and having regard to the provisions of section 140 of the Delhi

Police Act; taking into consideration that the mandatory requirement

of sanction was not fulfilled; and also the fact that respondents had

filed the sanction but beyond the period of limitation, hence there

exists no sanction in the eyes of law, accordingly, this petition

deserves to be allowed.”

35. It is at this juncture that we have to see if delay of limitation can be condoned or not. We know

that Section-5 of Limitation Act applies only to appeal or application and therefore the same cannot be

made applicable to institution of a criminal case. Now remains the Section-473 of CrPC which basically

talks about condonation of delay in criminal cases.

36. There cannot be any doubt that CrPC is a general law prescribing procedure in respect of criminal

matters. We further know that special enactment overrides general enactments. Delhi Police Act, 1978

was enacted with a view to provide matters related to police in Delhi and it provides some proceduralaspects for a special category of accused i.e. delhi police personnel concerning their duties. Obviously,

the concerned provision of Delhi Police Act has to be treated as special law vis a vis CrPC and

consequently, the same will override the provisions of CrPC.

37. The concerned provision of Delhi Police Act is Section-140 and the same provides for limitation.

It does not contemplate any scope for condonation. Section-140 being special law will override the

general law i.e. Section-473 CrPC. Therefore, there cannot be any scope for condonation of delay.

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38. Hon'ble Supreme Court was once dealing with the period of limitation provided in Limitation Act

and the period provided in Section-140 in the context of civil suit and held that Section-140 being special

one shall override the Limitation Act. Case was titled as Prof.Sumer Chand vs Union Of India 1994

SCC (1) 64 and following observations are relevant:

“This appeal, by special leave, raises the question whether the period

of limitation for filing a suit for malicious prosecution against a

member of the Delhi Police is governed by the provisions of Section

140 of Delhi Police Act, 1978, hereinafter referred to as 'the Act', or

by Article 74 of the Limitation Act, 1963.

***As indicated in the Preamble, the Limitation Act is an enactment

which consolidates and amends the law for the limitation of suits and

other proceedings connected therewith. It is a law which applies

generally to all suits and proceedings. It is, therefore, in the nature

of a general enactment governing the law of limitation. The Delhi

Police Act has been enacted for the purpose of amending and

consolidating the law relating to regulation of police in the Union

Territory of Delhi. The Act is a special enactment in respect of

matters referred to therein. Section 140 of the Act imposes certain

restrictions and limitations in the matter of institution of suits and

prosecutions against police officers in respect of acts done by a

police officer under colour of duty or authority or in excess of such

duty or authority. One such restriction is that such suit or prosecution

shall not be entertained and if entertained shall be dismissed, if it is

instituted more than three months after the date of the act complained

of.

***

It is not disputed that if Section 140(1) is found applicable the suit

filed by the appellant, as against the respondents, was barred by

limitation having been filed after the expiry of three months and it

could not be entertained against them.”

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39. In S.I. Manoj Pant Vs. State of Delhi 1 (1999) CRR 39, the Hon'ble High Court of Delhi has

held as under:

“On the other hand, it is submitted by Ms. Mukta Gupta that sincethe Act does not provide the machinery for filing a charge sheet, the

process of filing a charge sheet has to be under the provisions of the

Code, which include Chapter XXVI, laying down the limitation for

taking cognizance of certain offences and extension of period of

limitation in certain cases and, therefore, the delay in tiling the

challan having been condoned by the Magistrate on 29 October 1992,

the entertainment of the challan cannot be said to be illegal not

withstanding that the requisite sanction under Section 140 of the Act

was obtained after the expiry of one year from 11 August 1991, the

date of offence complained of.

Thus, the first question falling for consideration is whether in the

matter of institution of prosecution against a police officer in respect

of acts done by him under the colour of duty or authority or in excess

of such duty or authority, the period of limitation contained in

Section 140 of the Act would apply or the general provisions in

Chapter XXVI of the Code will apply?

As indicated in the preamble, the Act was enacted to amend and

consolidate the law relating to the regulation of police in the Union

Territory of Delhi. It is axiomatic that it is a special enactment in

respect of matters referred to therein and, thereforee, the provisions

contained in a special law must prevail over the provisions contained

in the general law, like the Code, which generally apply to all the

complaints, challans etc., and other proceedings connected thereto.

Section 140 of the Act, falling in the miscellaneous Chapter XI,

imposes certain restrictions and limitations in the matter of

institution of suits and prosecutions against police officers in respect

of the alleged offences or wrong acts by them. In my view, the Act

being a special law, restrictions and limitations, enumerated therein

should apply to cases falling within the ambit of Section 140 of the

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Act.”

40. From the above, it is clear that on the point of limitation, Section-140 will prevail and no

prosecution can be entertained if filed after 3 months from the date of occurrence or after extended period

of one year in cases where previous sanction of LG obtained within the one year period exits.

41. Next point is a dichotomy. There cannot be any doubt that all police officials are public servant.

Further, all police officials who are not under the category of subordinate rank as per Delhi Police Act

are removable by the government and therefore, such upper rank police officials do fall within the ambit

of Section-197(1) itself. As such, irrespective of any notification being issued under Section-197(3), such

officials are protected in general. Whereas once the notification exists, even such police officials will be

covered additionally by Section-197(2). This will become very relevant when we discuss the Explanation

inserted by Amendment Act of 2013 in Section-197(1).

42. Explanation says that for some offences, sanction would not be required. Most of the offences

mentioned in the explanation may be categorized under sexual offences and therefore they will never fall

within the ambit of act done in discharge of duty and as such, no protection could be even otherwise

available. Two mentioned offences are however distinct. They are Section-166A and 166B IPC. These

two sections can legitimately fall under acts concerning duty. Section-166B does not relate to a policeofficial and therefore, for the present paper we are not required to deal with the same. Then remains

Section-166A which reads as under:

“Whoever, being a public servant,–

(a) knowingly disobeys any direction of the law which prohibits him

from requiring the attendance at any place of any person for the

purpose of investigation into an offence or any other matter, or

(b) knowingly disobeys, to the prejudice of any person, any other

direction of the law regulating the manner in which he shall conduct

such investigation, or

(c) fails to record any information given to him under sub-section (1)

of section 154 of the Code of Criminal Procedure, 1973, in relation

to cognizable offence punishable under section 326A, section 326B,

section 354, section 354B, section 370, section 370A, section 376,

section 376A, section 376B, section 376C, section 376D, section

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376E or section 509, shall be punished with rigorous imprisonment

for a term which shall not be less than six months but which may

extend to two years, and shall also be liable to fine.”

43. Above shows that two clauses relates to investigation and the third relates to registration of FIR.

All these activities fall within the domain of duties to be performed by a police official. This definitely

will be protected. However, the explanation clarifies that no sanction will be required.

44. What is interesting to note is that the explanation has been inserted after sub-section-1 and not

after other sub-sections of Section-197. Meaning thereby that the explanation cannot control the scope

of other sub-sections. So if the offender is a public servant falling within the ambit of Section-197(1), he

cannot have any protection in respect of offence under Section-166A but however, if he falls under

Section-197(2), the explanation will not be applicable leaving the earlier scenario (i.e. what was before

the Amending Act of 2013) to govern the field.

45. Delhi Police officials upper in rank than an Inspector falls under Section-197(1) but due to

explanation, even they will not have any protection for an offence under Section-166A. The officials

upto the rank of Inspector are even otherwise not protected under Section-197(1) as discussed earlier in

this paper. It is clear that in such circumstances, though offence under Section-166A can safely be fallingwithin the act concerning duties, no police official can claim any protection.

46. However, once a notification is issued under Section-197(3), entire scenario will change. In Delhi

a notification exists and covers every police official as discussed earlier in this paper. Due to this

notification, every police official is protected under Section-197(2) and the explanation introduced by

Amending Act of 2013 does not govern this sub-section. As such, every police official will be continued

to be protected under Section-197(2) even for an offence under Section-166A IPC.

47. In the light of above discussion, it is crystal clear that every official of Delhi Police is protected

for offences concerning his duties including offence under Section-166A IPC and the sanction is a

necessity and limitation is of utmost importance.

48. In some other paper, we will be discussing the circumstances which can be treated as requiring

the sanction and the circumstances which cannot be so treated and will also be enlisting them. We may

also consider court initiated offences against police officials and legal validity of such actions.

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Law on Sanction to Prosecute Police Officials

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