SANKARAN MOITRA versus SADHNA DAS AND ANR.

Citation: [2006] 3 S.C.R. 305 · Decided: 24-03-2006 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

SANKARAN MOITRA 
v. 
SADHNA DAS AND ANR. 
MARCH 24, 2006 
[Y.K. SABHARWAL, CJ., P.K. BALASUBRAMANY AN AND 
C.K. THAKKER, JJ.] 
A 
B 
Code of Criminal Procedure, 1973-Section 197(1)-Death due to 
police lathi charge on day of election to State Assembly-Prosecution of C 
accused police officer-Sanction as required under Section 197(1) not 
obtained-Held: If a person is killed by· use of excessive force by police 
officer in performance of duty or purported performance of duty, Section 
197(1) cannot be by-passed by reasoning that killing a man could never be 
done in an official capacity-Requirement of sanction prescribed in Section 
197(1) was a condition precedent for a successful prosecution though question D 
may have arisen not at inception, but at a subsequent stage-Jn the facts of 
case, act of police officer found to be done in performance of his duty to 
prevent breach of law and maintain order on polling day-It was so since 
he was in uniform and had travelled to spot near polling booth in official 
jeep subsequent to receipt of information in Police Station suggesting imminent E 
clashes between supporters of two political parties there-Prosecution 
quashed for want of requisite sanction. 
On the day of election to a State Assembly, appellant, Assistant 
Commissioner of Police, reached a polling booth. On reaching there, he 
had a discussion with officer-in-charge of a police station. Thereafter a F 
lathi charge by police constables took place wherein husband of respondent 
no. 1 died. On her complaint to Deputy Commissioner of Police, cases were 
registered in police station against unknown police officials. About two 
weeks thereafter, she filed a private complaint in the Chief Judicial 
Magistrate (CJM), accusing appellant, amongst others, ofvarious offences 
under IPC. Cognisance was taken on this complaint, and after recording G 
statements of witnesses, warrant for arrest of appellant was issued. 
Appellant filed application before CJM under Section 210 Cr. PC. seeking 
stay of proceedings on the complaint on the ground that investigation of 
cases registered by police was pending. Before passing of any order on 
305 
H 
306 
SUPREME COCRT REPORTS 
[2006] 3 S.C.R. 
A this application, appellant filed a petition before High Court under Section 
482 Cr PC seeking quashing of the complaint on the ground that CJM did 
not have the jurisdiction to entertain the complaint as sanction required under 
Section 197(1) Cr PC had not been obtained. High Court dismissed this 
petition after considering the post mortem report and evidence of witnesses, 
B holding that it was a case of merciless beating by police officer causing death 
of a person, which could not be said to be an act in discharge of official duty, 
and for this reason no sanction was required under Section 197(1) Cr. PC. 
Hence the present appeal. 
Appellant contended that (i) he was a police officer on duty, and had 
C gone to the polling booth in his police uniform and in the official jeep pursuant 
to receipt of a message about rioting and law and order problem there; hence 
the act was done in discharge of his duty, and his prosecution could not be 
proceeded with without sanction as required under Section 197(1) Cr PC (ii) 
the case was covered by Section 210 of the Code and proceedings in the private 
complaint filed by the respondent were required to be stayed. 
D 
Respondent contended that as the Magistrate did not have occasion to 
consider the applicability of Section 197 Cr. PC, contentions of appellant based 
on this provision should not be decided by the Court, especially as they could 
be raised on his appearance before Magistratt. 
E 
Allowing the appeal, the Court 
HEID. 
Per P. K. Balasubramanyan J., (for himself and Y.K. Sabharwal, CJ!) 
I.I. The High Court has stated that killing of a person by use of 
F excessive force could never be performance of duty. It may be correct so far 
as it goes. But the question is whether that act was done in the performance 
of duty or in purported performance of duty. If it was done in performance of 
duty or purported performance of duty Section 197(1) of the Code cannot be 
by-passed by reasoning that killing a man could never be done in an official 
G capacity and consequently Section 197(1) of the Code could not be attracted. 
1316-B-DI 
1.2. That it was the day of election of the State Assembly, that the 
appellant was in uniform; that the appellant travelled in an official jeep to the 
spot
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