101. Civil suits or criminal prosecutions by or against police officers. [§ 3, Act V, 1861].
- In the case of a civil suit or a criminal prosecution by or against a police officer in connection with the discharge of his official functions, the following course shall be followed :-(i)Previous sanction necessary before any action, civil or criminal, is taken by a police officer. - A police officer wanting redress for some wrong which he has suffered in connection with the discharge of his official functions shall, whether he proposes to institute a civil suit or criminal prosecution on his own responsibility and at his own cost or whether he desires that the suit or prosecution should be instituted in his name under the orders and at the cost of the Provincial Government, submit through his official superiors a full report on the whole case to the Legal Remembrancer before taking any steps in the matter. On receipt of such report, the Legal Remembrancer will submit the case with his remarks for the orders of the Provincial Government.(ii)Procedure in civil suits against a police officer. - If any suit is instituted against a police officer for anything done in his official capacity without the notice required by section 80 of the Code of Civil Procedure, 1908, having been duly served on him he shall, as a rule, move the Court to dismiss .it on the ground that it has been instituted contrary to the provisions of that section. An alleged extortion of money for an officer's own benefit, and not for the benefit or supposed benefit of the case he is investigating does not come within the wording of section 80 and no notice is necessary in such cases.If, however, such notice is given, he shall at once report to his superior officers all the circumstances necessary to the forming of an opinion on the case, stating whether he proposes to deal with the matter on his own responsibility and at his own cost or whether he desires that the suit should be taken up in his name under the orders and at the cost of the Provincial Government. The superior officer receiving such report shall without delay, after making any enquiry that may be necessary; submit a full report with a statement of the action proposed to be taken for the orders of the Provincial Government through the Legal Remembrancer, and before the receipt of such orders all steps in the matter shall, if possible, be avoided. But, subject to the sanction of the Provincial Government nothing herein shall prevent the police officer concerned formed entering into an agreement for the amicable settlement of the case.(iii)An officer preparing a report under the above rule on moving the Court to dismiss the suit shall be entitled to the assistance of the Government Pleader.(iv)Procedure in criminal cases against a police officer. - Section 197 of the Code of Criminal Procedure lays down a special procedure in regard to criminal prosecutions against certain classes of officers, while section 42 of the Police Act, 1861, sets a limit within which action against a police officer is to be taken and indicates the procedure in regard to this. In those cases there will always be ample time to obtain the orders of the Provincial Government as to the defence of the officer, and this shall be done. In the case of criminal prosecutions against other classes of police officers it may frequently be impossible to obtain the orders of the Provincial Government before the commencement of the proceedings in Court. In that case it would rest with the District Magistrate after consulting the Superintendent, to decide whether the defence shall be undertaken by the Provincial Government or not. In the event of disagreement between the District Magistrate and the Superintendent concerning the defence of the accused police officer, the District Magistrate shall instruct the Public Prosecutor to appear for the accused officer in the initial proceedings and request the Court to postpone the case pending a decision by the Provincial Government as to whether he should be defended at the cost of the Provincial Government or not. In such cases a full report shall be sent to the Provincial Government as early as possible stating the course the District Magistrate has decided to adopt.(v)Procedure in civil suits or criminal cases before a Union Court or Union Bench. - Immediately upon the institution before a Union Court or Union Bench of a suit or case against a police officer, the officer-in-charge of the police-station concerned shall send the necessary intimation to the Superintendent. If at any time it is necessary to obtain copies of the record of the case, the Superintendent shall apply for copies as prescribed in rule 7 of the rules framed by the Provincial Government under the Bengal Village Self-Government Act, 1919 (Bengal Act V of 1919), and issued with Judicial Department notification No. 5649J., dated the 13th August, 1926, and payment according to the scale therein laid down shall be made from contingencies.(vi)Conduct of cases. - When the Provincial Government undertakes the conduct of a case, civil or criminal, instituted by or against a police officer, the head of the department in respect of a civil suit of the Magistrate in respect of a criminal case may deal with it in consultation with the officer concerned in accordance with the regulations herein laid down or he may, with the sanction of the Legal Remembrancer, delegate his duties to the officer concerned on condition that the said regulations are strictly observed. In the latter case, the officer concerned shall conduct the case at a reasonable cost which must not exceed Rs. 250/- without the previous sanction of the Legal Remembrancer. The Provincial Government will not be bound to pay any expenses unless these rules are complied with.If in a case in which the Provincial Government has undertaken the defence of an officer the decision of the first Court is against him, the question whether an appeal should be filed at the cost of the Provincial Government or whether the damages awarded to the plaintiff or the fine imposed should be paid by the Provincial Government shall be decided by the Provincial Government either on the application of the officer concerned who should move his immediate superior in the matter or on the representation of his superior officer.(vii)All applications for the defence of police officers at the cost of the Provincial Government in civil suits and criminal cases shall be submitted to the Inspector-General through the District Magistrate and the Deputy Inspector-General by the Superintendent concerned. A similar procedure should be followed in the case of applications for expenses in cases and suits in which police officers are complainants.(viii)In cases against officers of the Criminal Investigation Department or the Railway Police, the Magistrate of the district in which the case is instituted shall be considered the District Magistrate for the purposes of this regulation.
