Attorney General GE Vahanvati’s opinion came on Friday, a day after the CBI charged former IB special director Rajinder Kumar with murder in the Ishrat Jahan encounter case while accusing three other serving officers of criminal conspiracy and other offences.
The Attorney General said in his legal opinion that prior sanction for prosecution is a must under Section 197 of the CrPC without which the serving IB officials cannot be put to trial. He said prior sanction is also required for Kumar notwithstanding his retirement.
Vahanvati has cited at least two recent Supreme Court verdicts stating that IB men were acting or purporting to act in the discharge of their official duty, therefore, they would be covered under section 197 of the CrPC.
Section 197 states that when any person who is or was a Judge or Magistrate or a public servant not removable from his office by or with the sanction of the government 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.
Nearly a decade after Ishrat was murdered along with her friend Javed Sheikh alias Parnesh Pillai in Gujarat and two others believed to be Pakistani nationals, the CBI filed a supplementary chargesheet in a Gujarat court naming Kumar, who was the then Joint Director of IB and posted in Gujarat.
He was charged with 120-B for criminal conspiracy and 302 for murder and other Sections of Indian Penal Code besides various provisions of the Arms Act. Besides Kumar, those named in the chargesheet are serving officers P Mittal, MK Sinha and Rajiv Wankhede who have been booked for criminal conspiracy, wrongful confinement, kidnapping and wrongful concealment and various Sections of the Arms Act.


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