The Supreme Court on Wednesday dismissed an appeal filed by two subordinate rank police officers of the Calcutta Police challenging the Calcutta High Court’s order directing the Magistrate to proceed against them in a murder case. A bench comprising Justice JB Pardiwala and Justice Manoj Misra held that a subsequent notification issued by the State Government in 2010 extending the benefit of sanction protection under Section 197 CrPC to subordinate police officers cannot be invoked to quash criminal proceedings that were validly initiated in 2001 when no such protection existed.

The case arose from a criminal complaint filed in 2001 by Sadhana Das alleging that three police officials, including the present appellants, were involved in the custodial killing of her husband. The Magistrate took cognizance of the offence under Sections 302, 201, 109 read with Section 120-B IPC and summoned the accused without requiring prior sanction under Section 197 CrPC, as the appellants were subordinate rank officers not removable from service save by or with the sanction of the Government.

In 2006, the Supreme Court quashed the proceedings against the senior officer, Sankaran Moitra, on the ground that he was entitled to protection under Section 197(1) CrPC. The Magistrate thereafter extended the benefit of that order to the present appellants as well. However, the complainant challenged the Magistrate’s order before the High Court. In 2012, the High Court set aside the Magistrate’s order and directed that proceedings continue against the appellants, holding that the Supreme Court’s order in Sankaran Moitra’s case was specific to him and did not apply to the other accused.

Before the Supreme Court, the appellants relied on a notification dated 19 November 2010 issued by the Government of West Bengal under Section 197(3) CrPC, which extended the protection of Section 197(2) to all subordinate rank police officers charged with the maintenance of public order. They contended that in view of this notification, no cognizance could have been taken or proceedings continued without prior sanction.

Rejecting the contention, the judgment authored by Justice Misra clarified that the bar under Section 197 CrPC operates at the stage of taking cognizance. Once cognizance is validly taken when no such bar existed, a subsequent notification cannot retroactively invalidate the proceedings. The Court observed that the crucial date for determining the applicability of Section 197 is the date on which cognizance is taken and not any later development in law.

The bench emphasised that the 2010 notification would not affect proceedings where cognizance was not barred when it was taken. It further noted that the appellants, being subordinate rank officers, were not removable from service save by or with the sanction of the Government at the relevant time, and therefore the protection under Section 197(1) was not available to them when proceedings were initiated.

Accordingly, the appeal was dismissed. The Court, however, clarified that it had not expressed any opinion on the merits of the allegations made against the appellants.

Case Title: Samarendra Nath Kundu & Anr. v. Sadhana Das & Anr.
Case No.: Criminal Appeal No. 654 of 2013
Date of Judgment: 01 April 2026

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