The Madras High Court on Wednesday held that police personnel from the rank of constable to Inspector would not be entitled to the protection of obtaining prior government sanction before initiating criminal prosecution against them, even for acts performed during discharge of their official duty.
A Division Bench of Justices A.D. Jagadish Chandira and K. Rajasekar refused to extend the protection provided under Section 197 of the Code of Criminal Procedure (Cr.P.C.) to officers below the rank of Deputy Superintendent of Police/Assistant Commissioner of Police (DSP/ACP).
Answering a reference made to them by a single judge of the High Court in view of conflicting decisions over granting the protection to police personnel below the rank of DSP/ACP, the Division Bench held that there was no unconstitutionality in denying the protection to a section of police personnel.
The judges agreed with State Public Prosecutor (SPP) Hasan Mohamed Jinnah that Section 197 clearly stated that the necessity of obtaining prior sanction would arise solely with respect to police officers who could be removed from service only by the government and not by anyone else. However, police personnel in the rank of constables to Inspectors could be dismissed/removed from service either by the Superintendents, Deputy Inspectors General or Inspectors General of Police. Therefore, there was no necessity to obtain prior government sanction before prosecuting them, the SPP said.
Accepting his submissions, the Division Bench said a distinction made between two classes of police personnel under Section 197, due to the different nature of duties performed by them and the responsibilities entrusted upon them, could not be said to be in violation of Article 14 of the Constitution.
Authoring the verdict, Justice Chandira wrote: โArticle 14 guarantees the right to equality before law and equal protection of law to all citizens regardless of their caste, creed, religion, gender or any other personal characteristic. However, it cannot be misconstrued to apply against the hierarchy in administrative aspects.โ
He further said: โWhile Article 14 certainly forbids class legislation, it, however, permits reasonable classification of persons, objects and transactions by law and the only restriction could be that such classification should not be arbitrary, artificial, or evasive…. [In the present case], this court feels that it is in the wisdom of legislature, the scope and application of the said provision (Section 197 of Cr.P.C.) has been restricted with a reasonable differentia….โ
Though some of the petitioners had highlighted that prior government sanction had been selectively mandated only for Inspectors serving in the โQโ branch (which monitors terror activities) under a third proviso to the Rule 4 of Tamil Nadu Police (Discipline & Appeal) Rules, 1955, the Bench said this provision had not been challenged by any of the petitioners.
Even otherwise, the Bench said, โWhen Section 197(3) of Cr.P.C. empowers the State government to issue a notification for application of sub section (2) to such class or category of the members of the forces charged with the maintenance of public order, we feel that the proviso under Rule 4 of the Tamil Nadu Police (Discipline & Appeal) Rules granting the benefit under Section 197(3) to the police personnel in the cadre of Inspector of Police โQโ Branch alone must be in consonance with such empowerment…โ
