30th April, 2004

We are all familiar with incidents where enforcement authorities carry out a raid or arrest suspected criminals, and then have charges of misdemeanour filed against them by the accused. This demoralises and discourages the officers, for they have to personally bear the costs of their legal defence.

On 24 March 2004, a Bench of the Honourable Supreme Court of India passed a judgement in the State of Orissa vs. Ganesh Chandra Jew case. This landmark judgement will be of great help to enforcement agencies and prevent criminals from abusing the law to harass upright officers.

The Court clarified the interpretation and applicability of Section 197 of the Criminal Procedure Code. This Section states that if a State or Central Government officer is to be prosecuted for any offence allegedly committed during the discharge of official duties, sanction to do so is required from the State or Central government.

The case proved to be an excellent means of clarifying this point. Ganesh Jew had been arrested by the Orissa Forest Department in 1991 for the possession of ivory tusks. He later filed a case against the Forest Department officers, stating he had been assaulted and publicly humiliated during his arrest. The officers appealed against this complaint. The case went through the court of Sub-Divisional Judicial Magistrate, Baripada, and the Orissa High Court before it finally reached the Supreme Court.

The Court categorically stated "the cognisance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty".

The Court went on to say, "very cognisance is barred. That is the complaint, cannot be taken notice of." [Italics added]

The Bench, consisting of Justices Doraiswamy Raju and Arijit Pasayat, opined in clear terms that while prosecuting officials have to exercise restrain when investigating a wildlife matter and arresting suspects, offenders should not be able to stop the due process of law by initiating false and frivolous complaints in order to vitiate the trial.

Lawyers from the Wildlife Protection Society of India, who were closely monitoring this case in the Supreme Court, believe that this judgement will go a long way in creating a safety net for enforcement personnel investigating wildlife cases.