Bolstering Protection To Police From Prosecution- Has S.197 (1) Cr PC Become Meaningless By Notification U/S 197 (3) Thereof?

INTRODUCTION

Is previous sanction necessary to take cognizance of offence committed, while acting in discharge of their official duty, by the police officers, who are removable from service save not with the sanction of the Government? What is gamut of the notification issued by the State Government of Kerala under section 197 (3) of the Code of Criminal Procedure, 1973 (the Code, for short)?

The trial is the tool to ascertain the complicity of the accused. It is, therefore, telling aye to proceed with the trial will be the approach of the courts of law, when there is allegation that the accused has committed an offence. The exception to this process applies where any prerequisite barring cognizance by the operation of any law, is not properly complied. Procedural law prescribes such preconditions. Some public servants, by virtue of their office, cannot be prosecuted without the previous sanction of the Government. Section 197 of the Code gives such a protective umbrella to them. This part of procedure has ever been a subject to be mulled over by the academics, the bar, the bench and the officials concerned.  Unless the law respecting the protection given to such privileged persons is followed scrupulously the result will be the miscarriage of justice.

THE LAW

Shorn of unnecessary details, suffice it to quote the relevant portion from section 197 of the Code:

“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.”

So it is unequivocal that, primarly, certain class of officers only are protected from criminal prosecution without there being a sanction from the Government concerned as envisaged in section 197(1)(a) and (b). Those are officers not removable from the service without the sanction of the Government. However sub-section (2) protects the Armed Forces of the Union, thereby the courts are fettered to take cogizance of offence committed by any member of such force, if comitted while acting or purporting to act in discharge of their official duty, without the previous sanction of the Central Government. Officers’ rank is irrelavant under section 197 (2). The State Governments are entitled to extent the operation of this special provision to such class or category of members of Forces charged with maintanance of public porder  by way of promulgating a notification to this effect. Then the members of that class come under the catagory of officers covered under section 197 (2) of the Act. Thence, the notification entitle such force to get the same protection available to Armed Force, obviously, the rank of officers doent not matter. In otherwords, the phrase  in section 197 (1) that ‘a public servant not removable from his office save by or with the sanction of the Government’

THE ISSUE

Lately, in Unnikrishnan v. State of Kerala (2014 (1) KLT 903) a Single Bench of the High Court of Kerala held that, a Sub Inspector of Police in the Kerala State Police cannot be prosecuted without previous sanction of the Government of Kerala if his alleged act of offence is attributable to in discharge of his official duty. Relying on selfsame judgment, the learned judge, in Sasi D. and Others vs. State of Kerala and Others (2015 (5) KHC 215), has decided that the constables in the Kerala State Police cannot be prosecuted sans such a sanction. Earlier other Single Benches in Moosa Vallikkadan vs. State of Kerala & Another (2010(3) KLT 437) and in Viswambharan vs. State of Kerala (2010(4) KLT 875) also decided in the same manner, wherein offences were alleged to have been committed by the Sub Inspector or any other subordinate Police Officers. Despite this, in the meantime, another Single Bench in Harikumar vs. Suresh (2014(2) KLT 1028) held that the Sub Inspector of Kerala Police can be prosecuted without such sanction, even if his work is attributable to the discharge of his official duty. The gamut of those decisions in the wake of its conflict and their legality are being attempted to scan here.

THE KERALA NOTIFICATION UNDER SECTION 197 (3)

While exercising its powers under section 197 (3) of the Code the State Government of Kerala have pronounced Notification No. 61155/A2/Home dated 6/12/1977 (the Kerala Notification) and the same is extracted below:

“Home (A) Department, Trivandrum, 6-12-1977

NOTIFICATION

SRO. In exercise of the powers conferred by sub-s. (3) of Sec. 197 of the Code of Criminal Procedure 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of sub-s. (2) of the said section shall apply to all members of the Kerala State Police Force, charged with maintenance of Public Order.

(By Order of the Governor)
S. NARAYANASWAMY
Special Secretary.

EXPLANATORY NOTE

1. 197 of the Criminal Procedure Code affords protection from false, vexatious or mala fide prosecutions to some categories of public servants in the shape of requirement of previous sanction of the Government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in the discharge of their official duties. The members of the Armed Forces of the Union are also protected. Government consider that members of the Kerala Police Force who are charged with the maintenance of public order are also in need of similar protection. The notification is issued to achieve this objective.”

This notification has come to the rescue of the accused involved in cases Viswambharan (supra), Unnikrishnan (supra), Moosa Vallikkadan (supra) and Sasi D. and Ors. (supra). Similar notifications were issued by many a State Government in India. What is discernible from the above notification is that the Government of Kerala have directed that the provisions of sub-s. (2) of section 197 shall apply to all members of the Kerala State Police Force, charged with maintenance of Public Order.

KERALA POLICE FORCE AND ITS VARIOUS WINGS

The Kerala Police Act, 2011 (the Kerala Act) envisages various kinds of Police force and it is not confined to the law and order only. This is clarified under section 14 of the Act, which is reproduced blow:

“14. Kerala Police.- (1) of section 14 of the Act says that There shall be one unified Police Force for the State of Kerala named the Kerala Police and it may be divided into as many Sub-units, Units, Branches or Wings on the basis of geographical convenience or functional efficiency or any special purpose as may be decided by the Government from time to time. (Emphasis added)”

We get the details of many of such wings/categories from the website of the Kerala Police. Kerala Armed Police, Malabar Special Police, Rapid Response and Rescue Force etc. are some of such wings. These forces are formed for special purposes and are governed by the Kerala Police Act, 2011 and are parts of the Kerala State Police. Though the supreme officer of these units is the State Police Chief, these wings are separately governed by other superior police officers. So there cannot be more than one opinion that there are police force in Kerala, whose duties are differently defined, which comes, as far as the nature of work is concerned, within the law order and maintenance of public order. Semantically there are clear difference between the law and order and the maintenance of public order.

EARLIER VIEW

Early in 1985, in K.K.S. Muhammed vs. Sasi (1985 KLJ 403), the Single Bench of the High Court of Kerala has stood upon this difference. The Court was considering do the police constables, against whom some offences are alleged would get the protection based on the above notification? The Court, preliminarily opined that:

“Sec. 197 (1) and (2) are independent of each other. In order to invoke the provisions of Sec. 197 (1), it is necessary that two ingredients must co-exist. In the first place, the person must be a public servant not removable from office save by or with the sanction of the Government, Second condition is that the act must have been committed by such a person acting or purporting to act in the discharge of his official duty. The prohibition against taking cognizance without sanction will operate only if these two conditions are there. The second condition is common to both Sec. 197 (1) and (2).”

Secondly, the Court came to the proposition that the State Governments are authorized to confer the protection under section 197 (2) of the Code to any class or category of forces wherever they are serving and there is the restriction that the member or members of such forces must be charged with maintenance of public order. Finally, the Court came to the finding that the State Government is not entitled to extend the protection to all the members of the Kerala Police Force without any discrimination.

The High Court in K.K.S. Muhammed (supra) further explained the difference between the two. It is thus:

“7. Maintenance of public order is different from maintenance of law and order. Chapter X of the Code of Criminal Procedure deals with "maintenance of public order and tranquility". Chapter XII deals with matters relating to maintenance of law and order, "Public Order" is an expression having vide connotation. It differs from law and order in relation to the reach of an act upon society. Similar acts may have different reactions if committed in different circumstances and contexts. If the act affects only specified individuals, the problem created may only be law and order. But if it affects the tempo of the community life, it is prejudicial to maintenance of public order. Criminal acts affecting individuals alone will come only under law and order. Those who are responsible for national security or public order may have to be the sole judges to decide in any particular instance what national security and public order requires. That may be the reason why protection was intended to be given to them against vexatious prosecutions in preference to others.”

OVERRULING K.K.S. MUHAMMED

It is trite to mention here that the decision in K.K.S. Muhammed (supra) has been overruled in Sarojini v. Prasannan (1996 (2) KLT 859) by the Division Bench of High Court of Kerala, holding the view that ‘maintenance of public order’ is the extension of ‘law and order’ and held that it is unnecessary that there should be anything specific to show that those charged with maintenance of 'law and order' have also been entrusted with the maintenance of 'public order', which is not so different or unrelated to require a specific investiture but is implicit in the former function.

REFERENCE TO THE SUPREME COURT DECISIONS

It is necessary to mention herein that the learned Judges in Moosa Vallikkadan (supra), Viswambharan (supra), Harikumar (supra) and in Unnikrishnan (supra) have relied on/referred to a decision of the Apex Court, which was rendered in Rizwan Ahmed Javed Shaikh & Ors. vs. Jammal Patel and Ors. (2001 Cri LJ 2897) and in Harikumar, reliance was made to Romesh Lal Jain vs. Naginder Singh Rana and Ors. (AIR 2006 SC 336).

It is my humble view that the decisions of the High Court of Kerala excepting K.K.S. Muhammed (supra) and Harikumar (supra) referred herein are not expressing correct views on the implication of the Kerala Notification either in the background of the decision in Rizwan Ahmed Javed Shaikh (supra) or on Romesh Lal Jain (supra).

ANALYSIS

Rizwan Ahmed (supra) is an oft quoted decision on the subject. In that case the Apex Court was dealing with a similar situation where the Government of Maharashtra have issued a Notification (the Maharashtra Notification) under 197 (3) of the Code in respect of Police Force under the Bombay Police Act, 1951 (the Bombay Act).  On reading this decision one may think that it has complete bearing on the Kerala Notification, because of the proposition contained in paragraphs 13and 15. It is reproduced as hereunder:

“13. The notification therefore applies to members of Bombay police force. Once it is held that the members of the Bombay police force are the persons to whom the notification issued under Section 197(3) of the Code applies and if the act which is alleged to be an offence was done in discharge or purported discharge of the duty of the accused persons they will be entitled to the protection extended by sub-section (2) of Section 197 of the Code.”

And

“15. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected.”

From the above, it is discernible that once the notification is issued in respect of a force, it is enough that section 197 (2) applies to them. There is no need to further ponder over it to know if they acted in the maintenance of public order. But, in reality, there is no scope for a blanket branding that the entire body of police personnel comes under the sweep of section 197 (3), for the sole reason that that a notification is issued. The test stated in paragraph 15 applies only when it is found that, the force comes under the notification in question. It is pertinent to note that it is a precondition, as per Rizwan Ahmed’s case to identify that the notification is issued in respect of that particular force. It was observed by the Supreme Court, that the preamble to the Bombay Act provides that it was enacted to consolidate and amend the law relating to the regulation of the police forces and the exercise of powers and performance of functions by the State Government and by the members of the said force for the maintenance of public order. So, it is clear that the force under the Bombay Act is formed for the maintenance of public order. The Kerala Act differs in that respect. The preamble does not say like that, whereas it gives the message that it is formed, primarily, for dealing with the law and order situation. Despite this, as per the scheme of the Kerala Act, there can be several wings/Units under that Act. The functions of these units may differ; some may have the duty to keep the public tranquility and the maintenance of public order, as in the case of State Industrial Security Force or Rapid Response and Rescue Force.  So, in order to extent the protection u/s 197 (3), it is a must to identify the force, whether they are charged with maintenance of public order or concerned with law and order. The truism that the entire police personnel under Kerala Act are charged with maintenance of public order as a Battalion is difficult one to ruminate. So it is clear that the Kerala notification is not issued in respect of the whole body of Kerala Police. Rather it is issued pertaining to the special wings of force comes under the Kerala Act.

Moreover, in paragraph 9, it is clarified by the Apex Court that the person on whom the protection is sought to be conferred by the State Government notification is to be determined by reading the notification. So, the notification must be dealt with individually. All the notifications issued by different State Governments cannot be read together and weighed alike.

In Harikumar (supra), though the learned Judge has referred to Rizwan Ahmed, he did not address properly the issue mentioned above, it seems. Also the said decision explains about the differences between the maintenance of public order and the law and order. This issue has already been settled in Sarojini (supra). In this condition one may think that the decision in Harikumar is a decision per in curium but, actually it does not. In Harikumar, in fact this decision was explaining the differences by referring to various Supreme Court decisions like Ram Manohar Lohia v. The State of Bihar & Another (AIR 1966 SC 740).

It is again a matter to be emphasised that in Romesh Lal Jain (supra) the Apex court, though not adverted to Rizwan Ahmed’s case, differed from the proposition made in Rizwan Ahmed. In this case a Sub Inspector of Punjab Police was sought to be prosecuted under various sections of IPC, with an allegation that, while he was investigating a case under the Essential Commodities Act, committed misappropriation of seized properties. The notification issued by the Punjab Government, connoted similarly to Kerala and Maharashtra notifications was placed seeking immunity from prosecution as there was no sanction. The Supreme Court explained the differences between the public order and law and order and held hereunder.

“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 there from, 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.”

Hence, it is clear that the proposition in Rizwan Ahmed no longer stands, so also the decisions rendered basing it.

CONCLUSION

Section 197 of the Code is an exception to the general rule that one who alleges that another person has committed an offence must get a chance to prosecute him without the mercy of any other. It is already answered by the High Court of Kerala, adverting to the Law Commission Report, in Harikumar’s case why some superior Police Officers only are protected from being prosecuting for their acts which constitute offence while acting in official capacity. Moreover the subordinates also protected from prosecution as per various provisions such as section 113 of the Kerala Act, section 132 and 197 (2) and section 197 (3) of the Code, whose are charged with the maintenance of public order etc.

The Kerala notification never envisages its operation to the entire police personnel in Kerala. It is not uncommon that police personnel used to exert force illegally to import confession or to show their puissance. The option to prosecute such men would not curtail the morale of the police; in fact it would purify the force. Giving unnecessary protection by interpreting that the Kerala Notification applies to the entire police personnel would only defeat the legislative intention and make the first part of section 197 (1) redundant.

It is humbly opined that, by going through all the above referred decisions, the notifications, the nuances of Kerala Act, it is trite to think that the correct law pertaining to the Kerala Notification is not properly explained so far. Moreover, apparently, there are conflicts between the Harikumar’s case and Unnikrishnan’s case, apart from the conflicts with several other decisions. It is high time to address this issue by a larger Bench of the High Court of Kerala and settle it.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].