Read the 2013 Amendment made to General Penal and Procedural laws of India. All amendments made to CrPC are here.
In this amendment, apart from inserting new sections (around women-protection) into prevailing laws, the following helpful sections were brought in.
- Judge or Magistrate or a public servant may be prosecuted as per procedure laid out u/s sec 197 CrPC
- New Cognizable and Bailable offence u/s 166A was inserted into IPC which can be invoke against police if they violate laws.
- Per the new Explanation given to sec 197(1) CrPC, no sanction is required to prosecute the police. Karnataka High Court clearly explains this here.
Section 197 CrPC provides the procedure for, When any person who is or was a Judge or Magistrate or a public servant, (who is) not removable from his office save (meaning except) by or with the sanction (meaning permission) of the Government (meaning Central or State Governments) 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.
So, this mandates that Government permission is must for a Court to take cognizance of such offence by such public servant. Important aspect to note is that, there is no restriction of registering an FIR, only Cognizance needs Government permission to proceed.
Now, the same 2013 Amendment to Criminal laws of India also inserted a new section criminalizing three acts/omissions of public servants. It is as follows.
Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.
The entire procedure of how to make arrest in a cognizable case by police is in CHAPTER V – ARREST OF PERSONS. The various sections under this chapter are few other sections are as follows:
Let’s focus on clauses (a) and (b) alone. I have given meanings for the words used in these two clauses here.
Clause (a) talks about the police disobeys any direction of the law (they are flouting CrPC so let’s consider only judicial decisions) which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter.
So, if a Police office disobeys any of these above CrPC provisions such as
- a male police office arresting female accused,
- a female arrested after sunset and before sunrise-meaning night time) or
- no notice issued u/s 41A CrPC to the accused (even WhatsApp, email is also valid service of notice)
- no notice or communication as mandated u/s 50 CrPC, not given to person being arrested
- violates judgments which prohibit police in doing something in relation to forcing any person to attend before police for investigation, then such police office is liable for punishment under 166A IPC and a competent Court can take cognizance of his case, without permission from State Government.
Some Judgment (of any High Court or Supreme Court) which established a law/principle regd attendance of a person before police
Clause (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation means,
Some Judgments (of any High Court or Supreme Court) which established a law/principle regd investigation
- What is Investigation and what is not? [Rajesh Gutta Judgment]
- No automatic arrests in a any case which has a maximum imprisonment of 7 years (includes 498A IPC, Sec 3 of DP Act etc) [Arnesh Kumar judgment]
Until the 2013 Amendment to Criminal laws of India, the cases involving public servants were taken cognizance, only after/with Government permission.
Now, the 2013 Amendment to Criminal laws of India inserted an Explanation under/after Section 197(1) and before 197(2) [this means that the explanation applies to sec 197(1) only]:
Explanation.—For the removal of doubts, it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).
Out of the many IPC offences listed in this explanation, Legislature, in it’s endless wisdom, also included Sec 166A also, so that means now, the cases involving public servants can be taken cognizance by Competent Court, without Government permission.
So, get FIRs registered (by making good use of Zero FIR, where appropriate) and prosecute the out-of-line public servant (includes a Judge or Magistrate or a Police office)
Check out the relevant case laws here.