ORDER
S.S. Saron, J.
1. Gurmeet Singh-respondent No. 2 filed a criminal complaint under Section 342/384/392/120B of the IPC against the petitioners Sant Kumar, S.H.O. Police Station Raikot, and Charan Singh, A.S.I. Police Station Raikot and two others. It is stated that the complainant is a Sarpanch of the village and also otherwise enjoyed good reputation and in the performance of his duties as a Sarpanch, he incurred displeasure of Gurnam Singh son of Roor Singh, resident of village Binjal Police Station Rajkot. The said Gurnam Singh in league with Sant Kumar petitioner, who is the S.H.O. and under whose jurisdiction this village fell, illegality detained him and his younger brother. It is stated that Sant Kumar petitioner No. 1 and Charan Singh petitioner No. 2 came to the house of the complainant along with Gurnam Singh aforesaid on 6-12-1987 at about 6 a.m. and took his brother Gursewal Singh from their house without any rhyme or reason. No case was registered against his brother nor were warrants of arrest issued by any Court against him. The complainant asked the petitioner Sant Kumar as to why they were taking him. He was asked to talk to the MHC Ramji Dass, who is turn informed him that Gurnam Singh had paid a good amount and if he wanted his brother released he should pay Rs. 5,000/- to petitioner Sant Kumar, Due to the false detention of his brother, the complainant filed a Criminal Law Petition No. 1877 of 1987 in this Court for issuance of a writ of habeas corpus. A Warrant Officer was appointed who conducted a raid at the police station and found Gursewal Singh, the brother of the complainant, to be illegally detained in the police station. The petitioner Sant Kumar was asked by the Warrant Officer if there was any case registered against said Gursewal Singh who informed him that no case was registered. On these allegations, the complaint was filed in the Court of the learned Judicial Magistrate 1st Class, Jagraon. The learned Magistrate summoned the accused in the case who on their appearance filed an application under Section 197(2) of the Cr.P.C. for their discharge for want of sanction. This application was dismissed by the learned trial Magistrate vide his order dated 31-1-1990. It is against the said order that the present revision petition has been filed by the petitioners accused assailing the same.
2. I have heard learned counsel for the parties and with their assistance gone through the record.
3. Learned counsel for the petitioners has contended that the act done by the petitioners was in discharge of their official duties and, therefore, the cognizance of the alleged offence attributed to them could not be taken without the sanction of the competent authority in compliance with the provisions of Section 197 of the Cr.P.C.
4. On the other hand, learned counsel appearing for the respective respondents contend that the provisions of Section 197 of the Cr.P.C. are inapplicable as the petitioners who are accused in this case are not removable from their office save by or with the sanction of the Government. Besides the illegal detention of Gursewal Singh without any case registered against him is not an act in the discharge of the official duties of the petitioners. In order to appreciate the respective stand of the parties, it is necessary to refer to the provisions of Section 197(1) of the Cr.P.C. which reads as under:–
“197. Prosecution of Judges and public servants — (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
[Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.]”
5. A perusal of the above shows that when any person who is a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance except with the previous sanction in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in question with the affairs of a State, of the State Government.
6. The question that requires to be considered is whether the petitioners who are admittedly working as Sub-Inspector and Assistant Sub-Inspector are removable from their office save by or with the sanction of the Government. In order to appreciate this contention it may be noticed that the authorities empowered to make appointments in respect of Inspector, Sub-Inspector and Assistant Sub-Inspectors is provided for under Rule 12.1 of the Punjab Police Rules, 1934 which reads as under :–
“12.1. Authorities empowered to make appointments. — (1) Assistant Superintendents of Police are appointed by the Secretary of State of India, either in England or in India, according to the rules framed by him from time to time.
Deputy Superintendents of Police are appointed by the Provincial Government according to rules contained in Appendix 12.1.
The following table summarises the directions given by the Provincial Government under Clause (b) of Sub-section (1) of Section 241 of the Government of India Act, 1935, in regard to the authorities competent to make appointments to the non-gazetted ranks.
_______________________________________________________________________
Class of Government Authority to whom power The extent of the
servant of appointment is delegated delegation
1 2 3
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Inspectors Deputy Inspectors-General of Full powers sub-
police, Assistant Inspector ject to rules
general, Government, Railway governing the
police, Assistant Inspector- conditions of
General, Provincial Addit- service as de-
ional Police, (designated as fined in Police
Commandant, provincial Addit- Rules
tional Police), and the Assi-
stant Inspector-General of
Police (Traffic)
Sergeants, Sub- Superintendents of Police and
Inspector and Deputy Superintendent (Admini-
Assistant Sub- strative), Government Railway
Inspectors Police and Assistant Superin-
dent, Government Railway
Police."
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7. The above Rule 12.1 shows that the appointing authority of Sub-Inspectors and Assistant Sub-Inspectors is the Superintendent of Police. Article 311 of the Constitution of India provides for dismissal, removal or reduction in rank of persons employed in Civil posts under the Union or a State. It is provided therein that no person who is a member of a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. In this view of the matter the competent authority to dismiss or remove the petitioners from service who are Sub-Inspector and Assistant Sub-Inspector respectively, is the Superintendent of Police. Therefore, the position that emerges is that the petitioners are not removable from their office save by or with the sanction of the Government and it is the Superintendent of Police who is the appointing authority and consequently the authority competent to remove them from service in terms of Article 311 of the Constitution of India referred to above. As such, in my view, the petitioners were not entitled to the protection under Section 197 of the Cr.P.C.
8. The other contention urged by the learned counsel for the petitioners is equally without force. It is not in dispute that at the time of raid by the Warrant Officer of this Court who was appointed in view of the criminal writ petition filed by the complainant the alleged detenu Gursewal Singh was found in illegal custody. Besides, no case was found to be registered against him. Therefore, it cannot be said that the petitioners were acting in the discharge of their official duties. Therefore, also they are not entitled to the protection under Section 197 of the Cr.P.C.
9. In light of the above discussion, there is no merit in this revision petition and the same is accordingly dismissed.