New Delhi: The Supreme Court has held that government sanction is mandatory for initiating prosecution against police personnel for excesses or killings committed during the maintenance of law and order.

"If it [killing] was done in the performance of duty or in purported performance of duty, Section 197 (1) of the Criminal Procedure Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197 (1) could not be attracted."

A Bench headed by the Chief Justice Y.K. Sabharwal, by a majority of 2:1, held that to ensure protection to security forces personnel, deployed to enforce law and order including during elections, a mandatory provision had been made under Section 197 (1) to obtain prior sanction for launching prosecution against any official of the government or the security forces. In the absence of sanction, no prosecution would stand, the majority judgment said.

Allowing an appeal by a West Bengal police official, charged with the murder of a person by using excessive force during a clash between rival party supporters in Alipore during the May 2001 elections, Chief Justice Sabharwal and Justice P.K. Balasubramanyan said: "We hold that such a sanction was necessary and for want of sanction the prosecution must be quashed."

The police official, Sankaran Moitra, challenged a Calcutta High Court order, which held that if a person died due to use of force by a police personnel while performing his duty, the killing could not be held as having been done in an official capacity and consequently Section 197(1) Cr. PC could not be attracted.

Setting aside the order, the apex court Bench said: "The High Court was in error in holding that sanction under Section 197(1) of the Code was not needed in this case."

Referring to the High Court's observation that if courts started interfering in such matters merely on technicalities such as sanction from the Government the people would lose faith in the judicial process, the Bench said this could not be a ground for dispensing with the requirement of law, under which protection was made available to a public servant for any act done in the performance of his duty.

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