Can Public Servants be Prosecuted without Sanction u/s 197 CrPC?


Public Servants be Prosecuted without Sanction u/s 197 CrPC

Relevant constitutional court rulings pertaining Section 197 of Cr.P.C. is quoted as under:-

1. The Hon'ble Apex Court in the case of Bakhshish Singh Brar Vs. Gurmej Kaur and another reported in (1987) 4 SCC 663 has held as under :-

    "6.........It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Section. 196 and 197 of the Criminal Procedure Code. But it is equally important that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit." 

2. That further in another case Prakash Singh Badal Vs. State of Punjab reported in 2007(1) SCC 1 the Hon'ble Apex Court has also held as under:-

    "20..  The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity." 

3. The Hon'ble Apex Court in the Case of Subramanian Swamy Vs. Manmohan Singh and Another reported in (2012) 3 SCC 64 the Hon'ble Apex Court has held as under :-

    "74......................Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption." 

4. That on careful reading of the above cited judgments of the Hon'ble Apex Court it is manifested that Section 197 of the Cr.P.C. intends to protect public servant from harassment. It protects public servant from any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. Further, its operation has to be limited to those duties which are discharged in the course of their duties and once any act or omission found to have been committed by any public servant in the discharge of their duties, then it must only be given liberal and vide construction, so far its official nature is concerned.

5. Further, in the Case of Inspector of Police and Another Vs. Battenapatla Venkata Ratnam and Another reported in (2015) 13 SCC 87 the Hon'ble Apex Court while reiterating the judgment in the case of Sambhoo Nath Mishra Vs. State of U.P. and others reported in (1997) 5 SCC 326 and Rajib Ranjan and others Vs. R. Vijaykumar reported in (2015) 1 SCC 513 in paras 9 and 11 has held as under:-

    "9..  In a recent decision in Rajib Ranjan and others v. R. Vijaykumar (2015) 1 SCC 513, at para 18, this Court has taken the view that "18........ even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted". 

6. That the clearly evident on the very face of record presented to this hon'ble court the alleged indulgence of the police officers in cheating, fabrication of records cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records.

7. That further, the Supreme Court in case of State of Uttar Pradesh Vs. Paras Nath Singh {(2009) 6 SCC 372} has examined the expression discharge of official duty. It further reiterated the case of B. Saha V. M.S. Kochar {(1979) 4 SCC 177} wherein it is held as under:

    "6.. XXX XXX XXX 

    11.. Such being the nature of the provision, the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar (1979 (4) SCC 

    177) it was held: (SCC pp. 184-85 para 17) 

    17.. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."(emphasis in original) Use of the expression 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his official duty." 

15.. The Court further reiterated the view taken in the cases of State of Kerala Vs. V. Padmanabhan Nair {(1999) 5 SCC 690}, Amrik Singh V. State of Pepsu (AIR 1955 SC 309) and Shreekantiah Ramayya Munipalli V. State of Bombay (AIR 1955 SC 287) and has held that the offence under Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar.

8. Further in the case of Prakash Singh Badal (supra) in the context of Section 420, 467, 468, 471& 120-B, the court has laid down the principle about necessity of sanction under section 197 of Cr.P.C.

    "The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." 

9. hat in the case of Devinder Singh & others Vs. State of Punjab {(2016) 12 SCC 87} it has laid down the principle as under:

    "39.. The principles emerging from the aforesaid decisions are summarized hereunder : 

    39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 

    39.2 Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 39.3 Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule. 

    39.4 In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. 

    39.5 In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. 

    39.6 Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 

39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits. 

10. That after reading of the above, it is found that if the allegation against the public servant is for the offence of cheating, fabrication, misappropriation of record and also it allegation of criminal conspiracy are leveled then there is no need of sanction at earlier stage and it could be taken up at the stage of trial. 

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