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Samarendra Nath Kundu & Anr. v. Sadhana Das & Anr.

Criminal Appeal · 2026 INSC 304Decided 1 Apr 2026
Crl.A. No.-000654-000654 - 2013
Justice J.B. Pardiwala · Justice Manoj Misra · Justice K. Vinod Chandran

Background

The complainant, wife of a man allegedly murdered, filed a complaint against an Assistant Commissioner of Police and two subordinate police officials (the present appellants), alleging that the deceased was murdered at the ACP's instance. In a related earlier round of litigation concerning the ACP, the Supreme Court had held in 2006 that no prosecution sanction was required because beating a person to death could not be an act done in discharge of official duty; that ruling only concerned the ACP, not the two subordinate appellants. The magistrate had summoned all three accused, and the Calcutta High Court, in a revision, directed the magistrate to proceed against the present appellants as well, leading to this appeal in which the appellants argued they too needed prior government sanction under Section 197 CrPC before being prosecuted.

Decision Breakdown

The Supreme Court held that Section 197(1) CrPC's sanction requirement protects only public servants who cannot be removed from service except with the sanction of the government, and since the appellants were subordinate-rank police officers removable without such sanction, that provision did not apply to them. It then examined whether Section 197(2), which protects members of Armed Forces of the Union, extendable by state notification to police forces charged with maintaining public order under Section 197(3): could apply, given that West Bengal had issued such notifications in 2010 extending this protection to subordinate police ranks. The Court held that the bar under Section 197 operates at the stage the court takes cognizance of the offence, and since cognizance in this case was taken back in 2001, well before the 2010 notifications came into existence, those notifications could not retroactively bar or invalidate a cognizance order already validly taken. The appeal was accordingly dismissed, with the Court expressly clarifying it had not commented on the merits of the underlying murder allegations.

Lesson Learnt

Whether a public servant needs government sanction before being prosecuted is judged as of the date the court takes cognizance of the case: a law or notification introduced afterward extending sanction protection cannot be used retrospectively to shield someone from a prosecution that was validly begun before that protection existed.

Official source (sci.gov.in)View Judgment (PDF)

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