MOHD AMIN SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is an officer of Indian Police service against whom a case under sections 409/201 Ranbir Penal Code was registered in police station Bahu Fort, Jammu. The investigation of the case revealed that while posted as Commandant of 13 Batallion, Jammu and Kashmir Armed Police from January to July. 1991, he had misappropriated an amount of Rs. 6, 31,576/ -. Since the petitioner is an officer of the Indian Police Service, sanction to prosecute him under section 197of the Code of Criminal Procedure has been accorded by the Government of India.

(2.) THE petitioner challenges the order of sanction dated 13.06.1995 on the ground: (i) that the Indian Penal Code is not being applicable to the State of J&K, so the sanction is bad, and secondly, Code of Criminal Procedure 1898 Act 5 of 1998) having been repealed by the Code of Criminal Procedure, 1973 Central), a reference to the repealed Code speaks of non -application of mind by the sanctioning authority. Moreover, even the Code of Criminal Procedure, 1973 is not applicable to the State of J&K and as such the sanction is bad it could be issued only under section 197 of the Code of Criminal Procedure, 1999 (Act 12 of 1933 AD).

(3.) THE contention of Mr. Raina is that: (i) the order impugned is in -valid because the petitioner cannot be prosecuted under the Indian Penal Code; (ii) the prosecution has been sanctioned under the repealed Code of Criminal Procedure; and (iii) at the time of commission of alleged offence the petitioner was removable by the State Government which alone could accord sanction. Mr. Pant, on the other hand, argued that the petitioner being a member of Indian Police Service is removable from office only by the Government of India and, therefore, his prosecution could be sanctioned only by the Government of India. Regarding the offence committed by the petitioner, his contention is that it is the substance of the charge and not the wrong mention of the Penal Code which is germane.