Patna High Court: The 3-judge bench of I. A. Ansari ACJ, Chakradhari Sharan Singh and Navaniti Prasad Singh, JJ upheld the validity of Invoking the provisions as contained in Sub-section (3) of Section 197 , the Notification dated 16.05.1980 issued by Bihar Government, invoking the provisions as contained in Sub-section (3) of Section 197 CrPC, which direct which declared that the provisions of sub-section (2) shall apply to no court can take cognizance of the offence committed by “Officers and men” wherever they may serving the State of Bihar or the Bihar Police Force, such class or category of the members of the Forces charged with the maintenance of public order of the Code of Criminal Procedure, while performing his official duty, except by the prior sanction of the State Government. , a notification of Bihar Government, issued in 1980. The bench of three judges I. A. Ansari ACJ, Chakradhari Sharan Singh and Navaniti Prasad Singh, J J upheld the order of Chief Judicial Magistrate.
The petitioner who was posted as Officer-in-charge of Government Rail Road Station, in Muzaffarpur was charged under offences punishable under Sections 147, 323, 353, 342 and 379 of the Penal Code, 1860 by and the Chief Judicial Magistrate took the cognizance of the matter without prior sanction. The petitioner, relying on the impugned Notification, under section 482 of the Cr.PC moved to Patna High Court where the Single Judge referred the matter to the Division Bench which was later transferred to a larger bench. The Court took reliance with of the case of ruling in of Om Prakash and others v. State of Jharkhand, (2012) 12 SCC 72 and held that The notification, dated 16.05.1980, cannot be held to be beyond the scope and/or powers conferred on the State Government under Sub-section (3) of Section 197 CrPC of the Code of Criminal Procedure, the same having been applied by Supreme Court in case of Om Prakash vs. State of Jharkhand (supra) and criminal prosecution having been quashed against police personnel on that ground. We are mindful of the fact that the question of jurisdiction of the State Government to issue notification, granting protection to police personnel in exercise of power under section 197(3) of the CrPC., was neither raised nor decided. The Court further said that in view of the said notification, the previous sanction of the offences alleged to have been committed by the Police Officers, while acting or purporting to act in discharge of his official duty, is a condition precedent.
Hence, the Court held that the Chief Judicial Magistrate erred by taking cognizance of the matter without the prior sanction of the State Government and hence, quashed the impugned order. the Court held that under Section 197 (2) of CrPC that 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 uphold the Bihar Notification and quashed the order of the Chief Judicial Magistrate. [Ram Rekha Pandey vs. State of Bihar, 2016 SCC OnLine Pat 2130, dated on 26th June,26.06. 2016]