The Supreme Court of India has dismissed an appeal by two police officers seeking the protection of Section 197 of the Code of Criminal Procedure (Cr.P.C.), ruling that a government notification extending immunity to subordinate officers cannot nullify a valid cognisance order passed years prior to the notification.
The Division Bench of Justice J.B. Pardiwala and Justice Manoj Misra held that the bar on taking cognisance without government sanction applies at the stage the court first takes notice of the offence. If no such bar existed on the date of cognisance, subsequent administrative notifications cannot retroactively stall the prosecution.
Background of the Case
The case originated from a 2001 complaint filed by Smt. Sadhana Das, alleging that her husband was murdered by three police officials: Sankaran Moitra (Assistant Commissioner of Police), S.M. Kundu (Officer-in-Charge), and Sudhir Sikdar (Constable). The incident occurred on a state assembly election day in West Bengal during a lathi charge.
Initially, the Magistrate took cognisance and summoned the accused under Sections 302, 201, 109, and 120-B of the Indian Penal Code (IPC). Sankaran Moitra, being a high-ranking official, successfully moved the Supreme Court in 2006 (Sankaran Moitra v. Sadhna Das), which quashed the proceedings against him specifically for want of sanction under Section 197(1) Cr.P.C.
Following that 2006 order, the Magistrate extended the same benefit to the subordinate appellants (Kundu and Sikdar) and dropped the proceedings against them in 2007. However, the High Court at Calcutta set aside the Magistrate’s order in 2012, directing the trial to proceed, which led to the present appeal before the Supreme Court.
Arguments by the Parties
The appellants argued that while they were subordinate officers at the time of cognisance (and thus not protected by Section 197(1)), the Government of West Bengal issued a notification on 19 November 2010. This notification, issued under Section 197(3) Cr.P.C., extended the requirement of prior sanction to all subordinate police ranks involved in the maintenance of public order. They contended that in light of this notification, they could no longer be prosecuted without formal state sanction, which the Commissioner of Police had already declined to grant.
Conversely, the complainant argued that the appellants were not protected at the time cognisance was taken in 2001. They further contended that the 2010 notification should only apply to cases where cognisance was taken after the date of the notification.
Court’s Analysis and Observations
The Court addressed two primary issues: whether the appellants could benefit from the 2006 Sankaran Moitra judgment and whether the 2010 notification applied to them.
On the first issue, the Court noted that Section 197(1) only protects public servants who are “not removable from [their] office save by or with the sanction of the Government.” Citing Nagraj v. State of Mysore and Fakhruzamma v. State of Jharkhand, the Bench observed:
“As there is no dispute that when cognizance of the alleged offence was taken, the appellants were subordinate rank officers… there was no requirement of sanction as envisaged under Section 197 (1) of Cr.P.C.”
On the second issue regarding the 2010 notification, the Court emphasised that the legal bar under Section 197 operates at the “stage of cognizance.” The Bench observed:
“A post-cognizance sanction will not save the proceedings. Reason is simple, when cognizance was taken the bar applied. Conversely, if there is no bar on the date when cognizance of the offence is taken, the court can proceed to try the offence.”
The Court further clarified:
“A subsequent bar on the power of the court to take cognizance of an offence is of no consequence to those proceedings where cognizance was taken when there was no such bar. As a sequitur, the notification(s) would not affect those proceedings where cognizance was not barred when taken.”
The Decision
The Supreme Court concluded that since cognisance was validly taken in 2001—nearly nine years before the 2010 notification—the prosecution of the appellants is not barred. The Court dismissed the appeal and discharged any interim orders, while clarifying that it expressed no opinion on the actual merits of the murder allegations.
Case Details:
- Case Title: Samarendra Nath Kundu & Anr. v. Sadhana Das & Anr.
- Case Number: Criminal Appeal No. 654 of 2013
- Bench: Justice J.B. Pardiwala and Justice Manoj Misra
- Date of Judgment: 01 April 2026
