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Supreme Court of India1 April 20262026 INSC 304

Samarendra Nath Kundu v. Sadhana Das

Bench of 2 · Justice J.B. Pardiwala, Justice Manoj Misra

Why it matters

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Advocates defending subordinate police personnel in criminal proceedings cannot invoke a co-accused senior officer's Section 197(1) quashing order unless their client falls in the same "removable only by Government sanction" category; equally, State notifications issued under Section 197(3) after cognizance is taken will not rescue pending prosecutions — making the date of cognizance the critical threshold in all Section 197 sanction challenges.

Summary

Two police officers — S.M. Kundu (Officer-in-Charge, Phoolbagan Police Station) and Sudhir Sikdar (Police Constable) — were summoned by a Magistrate in 2001 under Sections 302/201/109 r/w Section 120-B IPC on a complaint by the widow of a man allegedly murdered at the instance of their superior, Assistant Commissioner of Police Sankaran Moitra, during election duty. This Criminal Appeal before the Supreme Court arose from the Calcutta High Court's order (02.05.2012) allowing the complainant's criminal revision and directing the Magistrate to proceed against the appellants, after the Magistrate had extended to them the benefit of this Court's earlier order in Sankaran Moitra v. Sadhna Das & Another, (2006) 4 SCC 584, which had quashed proceedings against Moitra for want of sanction under Section 197(1) CrPC.

Dismissed. The Court held on Issue No. 1 that the benefit of Sankaran Moitra (supra) was not available to the appellants. Moitra's proceedings were quashed solely for want of sanction because he, as an Assistant Commissioner of Police, was not removable from office save by or with the sanction of the Government. The appellants, being subordinate rank officers, did not fall in that category; following Fakhruzamma v. State of Jharkhand, (2013) 15 SCC 552 and Nagraj v. State of Mysore, AIR 1964 SC 269, previous sanction under Section 197(1) is required only for public servants removable by sanction of the Government. No such requirement existed for the appellants when cognizance was taken.

On Issue No. 2, the appellants sought shelter under twin notifications dated 19.11.2010 issued by the Government of West Bengal under Section 197(3) CrPC, extending the protection of Section 197(2) to all subordinate ranks of the police force charged with maintenance of public order. The Court rejected this argument, holding that the bar under Sections 197(1) and (2) operates at the stage of cognizance. Since cognizance was validly taken in 2001 — well before the 2010 notifications — a subsequent bar cannot nullify a valid cognizance order, and there is nothing in the notifications or CrPC that could have that effect. The Court expressly declined to express any opinion on the merits of the allegations against the appellants.

Key principle

The bar under Sections 197(1) and (2) CrPC operates at the stage of cognizance; a subsequent notification extending sanction-protection to a class of public servants cannot affect proceedings in which cognizance was validly taken before the notification, nor can it nullify a valid cognizance order. Further, the benefit of a co-accused's quashing order under Section 197(1) is available to another accused only if that other accused also belongs to the category of public servants not removable from office save by or with the sanction of the Government.

Holding

Dismissed — subordinate rank police officers who were removable without Government sanction are not entitled to the protection of Section 197(1) CrPC, and a State Government notification issued under Section 197(3) after cognizance was taken cannot retrospectively bar proceedings that were validly initiated.

Statutes invoked

  • CrPC · 197(1)
  • CrPC · 197(2)
  • CrPC · 197(3)
  • IPC · 302
  • IPC · 201
  • IPC · 109
  • IPC · 120-B

Practice areas

criminal
AI-generated summary, written by Claude Sonnet 4.6 from the court's published judgment. Always verify the original before relying on the summary in court. Generated on 21 May 2026.