Subsequent Bar On Taking Cognisance Does Not Affect Proceedings Where Cognisance Was Validly Taken Earlier: Supreme Court
The Supreme Court held that the bar under Section 197 CrPC operates at the stage of taking cognisance, and where cognisance was taken when no such bar existed, subsequent extension of protection by notification does not invalidate earlier proceedings.
Justice J.B. Pardiwala, Justice Manoj Misra, Supreme Court
The Supreme Court has held that a subsequent statutory or executive bar on the power of a court to take cognisance of an offence does not affect proceedings where cognisance was validly taken at a time when no such bar existed.
The Court was hearing a criminal appeal arising from a complaint alleging murder against police officials, where the principal issue was whether a subsequent extension of protection under Section 197 CrPC would invalidate proceedings already instituted.
A Bench of Justice J. B. Pardiwala and Justice Manoj Misra observed: “a subsequent bar on the power of the court to take cognisance of an offence is of no consequence to those proceedings where cognizance was taken when there was no such bar.”
Advocate Raj Kamal appeared for the appellants, while Advocate Mangaljit Mukherjee appeared for the respondent complainant.
Background
The case arose from a complaint alleging that police officials had caused the death of the complainant’s husband. The Magistrate had taken cognisance of offences under the Indian Penal Code and summoned the accused.
One of the co-accused, a senior police officer, had earlier approached the Supreme Court, which quashed the proceedings against him on the ground that prior sanction under Section 197 CrPC was required, as the acts were held to be in discharge of official duty. The Court, however, had left it open for the prosecution to proceed upon obtaining a sanction.
Subsequently, the Magistrate extended the benefit of that decision to the present appellants as well. However, the High Court set aside that order, holding that the protection available to the senior officer would not automatically apply to subordinate officers.
Before the Supreme Court, the appellants contended that, by virtue of notifications issued in 2010 under Section 197(3) of the CrPC, protection requiring prior sanction had also been extended to subordinate rank police officers, and therefore, proceedings against them could not continue without sanction.
Court’s Observation
The Court began by examining the scheme of Section 197 CrPC and held that the provision creates a bar on the court’s power to take cognisance of an offence in the absence of prior sanction where such sanction is required.
It was observed that the bar operates at the threshold stage of cognisance, and if applicable, prevents the court from proceeding further with the trial. Referring to precedent, the Court reiterated that if cognisance is taken without sanction in a case where sanction is required, such a defect cannot be cured subsequently, as held in Baijnath v. State of M.P. (1966).
The Court then considered the converse situation where no sanction was required at the time cognisance was taken. It held that in such cases, the proceedings are validly instituted. It observed that where “there is no bar on the date when cognisance of the offence is taken, the court can proceed to try the offence,” as the requirement of sanction must be tested at that stage.
The Court further held that subsequent extension of protection by way of notification under Section 197(3) CrPC cannot retrospectively invalidate proceedings already initiated, stating that “a subsequent bar… is of no consequence” where cognisance was taken earlier without any such requirement. The Court further clarified that there is nothing in the statutory scheme or in the notification that nullifies a valid order of cognisance taken earlier.
Applying these principles, the Court noted that cognisance in the present case had been taken in the year 2001, whereas the notification extending protection to subordinate police officers was issued only in 2010.
"In the instant case, cognisance was taken in the year 2001, that is, much before the notification. Therefore, in our considered view, the benefit of Section 197 is not available to the appellants", the Court concluded.
The Court also rejected the contention that the appellants were entitled to the benefit of the earlier decision in respect of the co-accused, noting that such a benefit would apply only if they satisfied the statutory requirement of being officers not removable without government sanction, which was not the case.
Conclusion
The Supreme Court held that the appellants were not entitled to the protection of Section 197 CrPC on the basis of the subsequent notification and that the proceedings against them were validly instituted.
Accordingly, the appeal was dismissed, and the Court clarified that it had expressed no opinion on the merits of the allegations.
Cause Title: Samarendra Nath Kundu & Anr. v. Sadhana Das & Anr. (Neutral Citation: 2026 INSC 304)
Appearances
Appellants: Raj Kamal, AOR, Pallavi Malhotra, Muskan Sidana, Aseem Atwal, Anurag Chandra, Nupur Kaushik, Stuti, Treoota Bhuniya, Manish Kumar Sharma, Harneet Singh, Advocates
Respondents: Advocates Mangaljit Mukherjee, Ranjan Mukherjee, AOR, Astha Sharma, AOR
