The privilege of immunity from prosecution without sanction extends to acts done or shown to be done by them in discharge of their official duty but at the same time, the rights of the citizens also need to be protected against capricious officials who may indulge into excesses in the garb of their official duty.
Therefore, in order to maintain a balance free and fearless functioning of the public servants on the one hand and protection of the rights of citizen against the excesses of government officials on the other hand, Section 197 provides privilege of immunity from prosecution only after securing sanction of a superior authority.
This protection extends even after retirement of the public servant otherwise a private person harbouring a grievance against the public official may wait till his retirement and then launch prosecution against him.
The sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office or position held by him.
The words ‘Public Servant’ do not include a civil servant working on deputation with a co-operative society and, therefore, the sanction for his prosecution under Section 197 is not necessary.
Since the expression ‘Public Servant’ had not been defined in the Code, therefore the definition as given in Section 21, IPC will be applicable for determining the meaning of the term ‘public servant’ used in this section.
The Patna High in Shri Laxmi Roy v. State of Bihar has observed that the authority competent to remove the employee from office is competent to grant sanction for prosecution. In the instant case, the petitioner, Principal RIT, Jamshedpur, was appointed by the Board of Governors, therefore, it was held that the appointing authority i.e. the Board of Governors, approved by Central and State Government was competent to remove him and as such Board was competent to grant sanction for prosecution.
The provisions contained in Section 197 should neither be too narrowly construed nor too widely. It is not the ‘duty’ which requires examination so much as ‘act’ because the official act can be performed both in discharges of the official duty as well as in dereliction of it.
There must be a coherent nexus between the act complained of as an offence and the discharge of official duty. The act must fall within the scope and range of official duties of the public servant concerned.
In Rajkumar Anandilal v. State of Maharashtra, a member of Railway Police Force had fired at and killed a person trying to steal railway property. The limitations regarding classes of public servants covered under Section 197 (1) would govern all the categories of public servants including those covered by Section 197 (2) and Section 197 (3) of the Code.
As the accused was not a person who was removable from his office save by or with the sanction of Government, therefore, Section 197 was not attracted and sanction to prosecute was not necessary in this case.
The question whether a particular act done by a public servant is in discharge of his official duty or not, substantially depends on the facts and circumstances of each case. Thus in a case involving fabrication of false records, the official capacity only enabled the public servant (accused) to fabricate the record or misappropriate the public funds etc., but it does not mean that it is integrally connected or inter-linked with the criminal act committed in course of the same transaction.
The Supreme Court in State of U. P. v. Paras Nath Singh held that sanction for prosecution under Section 197, Cr. P. C. restricts its scope of operation to only official duty. The use of the expression, ‘official duty’ implies that the act or omission was done by the public servant in the course of his service and that it should have been in the discharge of his duty.
The sanction required under the section does not extend its protective cover to every act or omission done by the public servant in service. Thus in State of M. P. v. Sheetla Sahai, the Engineers of the PWD Deptt. were charged for corruption in making payments to the contractors for construction of a dam. Held, each one of the respondents including retirees were found to be performing his official duties and therefore sanction for their prosecution under Section 197, Cr. P. C. was necessary.
Where an act is totally unconnected with the official duty of the public servant, there can be no protection under Section 197. It is only when it is either within the scope of official duty or in excess of the official duty, that the protection under Section 197 can be claimed.
Absence of sanction to prosecute as required by Section 197 vitiates the trial. Again, a complaint against a public servant cannot be entertained without such a sanction.
The Supreme Court in Shankaran Moitra v. Sadhna Das and another has ruled that sanction for prosecution in terms of Section 197, Cr. P.C. is a condition precedent launching prosecution against a public servant for an offence committed in discharge of his public duty.
In the instant case the complainant, wife of deceased filed a complaint that her husband was in-charge of providing food packets to polling agents at an election booth in an election held in West Bengal.
While performing his duty, the accused i.e., the Supdt. Police in collusion with other police personnel caused death of her husband by beating him mercilessly and thus committed an offence under Sections 302, 120-B 109 read with Section 34,I.P.C.
The police version was that the deceased was killed because of police action (lathi charge) which was necessary to avoid clashes and disturbance by rival political parties on the polling booth. Obviously, it was the part of duty of the appellant to any breach of law and maintain order on the polling booth and to prevent booth capturing. Held, sanction under Section 197 (1) was necessary for his prosecution.
The Apex Court in Prakash Singh Badal v. State of Punjab and others observed that use of the expression “official duty” in Section 197 implies that the act or omission must have been done by the public servant in the course of his service in discharge of his duty.
The section does not extend a 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 the public servant in discharge of his official duty.
The offences with which the accused (appellant) was charged related to Sections 420, 468,471 and 120-B, I.P.C. by their very nature cannot be regarded as having been committed by public servant while acting or purporting to act in discharge of his official duty.
Hence sanction in regard to these offences was not necessary. Moreover the question of need of sanction under Section 197, Cr. P.C. is not necessarily to be considered as soon as complaint is lodged and on allegations contained therein.
Where a public servant commits an offence while working as such, sanction would be necessary only when the act complained of as constituting the offence Is an integral part of his duties as public servants.
Where there was a complaint against police officer that he had falsely implicated the complainant and had also falsely showed that illegal weapon was recovered from him, The Supreme Court held that quashing the order taking cognizance of such complaint for absence of sanction to prosecute was improper. In such cases question whether accused officer had acted in official course of duty or not and whether therefore, sanction was necessary or not, should have been left open to be decided in the main judgment which could have been delivered upon conclusion of trial.
In Romesh Lai Jain v. Nagender Singh Rana, respondent Sub-Inspector of Police was alleged to have misappropriated 24 cylinders and had accepted bribe of Rs. 20,000/- from the complainant for avoiding maltreatment. Sanction for prosecution in terms of Section 197, Cr. P.C. was not necessary as the respondent could be removed from service by Deputy Inspector-General of Police and not by or with the sanction of Government.
Therefore, the decision of High Court quashing order taking cognizance and summoning respondent for want of sanction was not proper, particularly due to the fact that a valid order of sanction was granted in relation to offence committed by the respondent under the Prevention of Corruption Act, 1988.
Where there is no necessary nexus between the act of the public servant complained of and performance of his official duties, no sanction is necessary to launch prosecution against him Thus sanction is not necessary before a public servant could be prosecuted for an offence of bribery, or the offence of cheating, the reason being that these offences by their very nature cannot be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. Their official status may only furnish them opportunity for commission of such offences.
In the case of State of Maharashtra v. Atma Ram, accused, the investigating police officers assaulted four persons and used third degree methods to extract confession in course of investigation in a murder case. As a result of this ill-treatment two of the persons made false confessional statements.
When the police officers were charge sheeted under Sections 330, 342, 343, 348 IPC, they contended that the acts (of torture) were done under colour or in exercise of their duty hence their prosecution without a proper sanction under 197, Cr. P. C. was illegal. Overruling their contention, the Supreme Court observed that “in view of the statutory prohibition under Sections 161 and 163, Cr. P.C., it cannot be said that the acts complained of in this case are acts done by the respondent police officers under the colour of their duty or authority”, and there was no connection between the acts complained of and the office of the respondents. In fact, the alleged acts fell completely outside the scope of the duties of the respondent police officers; hence there was no necessity for a sanction to prosecute them under Section 197 of Cr.P.C.
Launching prosecution against a public servant without obtaining valid Sanction is an irregularity curable under Section 465 of Cr.P.C. but as provided in this section, it shall not be ground for reversing the order of conviction by the appellate Court unless failure of justice has been shown.
In Rakesh Kumar Mishra v. State of Bihar appellant Police Officer gave instructions to arrest suspects in dacoity case and conduct search. Consequently, search was conducted in respondent’s house but no material or any article was seized.
The respondent filed complaint that the search was mala fide and meant for the purpose of humiliating and harassing him and that concerned officials had no search warrant. It was pleaded on behalf of the appellant that criminal proceedings could not be initiated or conducted against him without sanction under Section 197, Cr. P.C.
The High Court dismissed the petition on the ground that since search was conducted without warrant, Section 197, Cr. P.C. would not be applicable in the case and the criminal proceedings which were conducted against the appellant (accused) did not suffer from any infirmity.
In appeal against the order of the High Court the Supreme Court held that High Court’s judgment was not proper as these circumstances had determinative role in the issue. The order of the High Court was, therefore, set aside.
Where the accused (appellant) had removed tea-stall of the complainant in pursuance of the policy decision of the State Government and order passed by the Executive Engineer. The statement of the Executive Engineer on the basis of which the accused was charge sheeted did not disclose offence.
No allegation was made in the complaint that the accused had transgressed his authority or committed the alleged offence. The Apex Court held that even if statement of Executive Engineer was taken as correct, presentation should have obtained sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure.
No sanction is necessary for the prosecution of employees of a national bank, or officers of the State Electricity Board, or the Sarpanch and secretary of the gram panchayat for misappropriation of funds in course of employment. Similarly, no sanction is required for prosecution of a police officer for causing death of a person in custody because of the use of third degree methods.
So also, for prosecuting a public servant for the offence of conspiracy and bribery, there is no necessity for a sanction under Section 197, Cr.P.C. But where the complainant resisted the police action and consequently the police took away some property of the complainant, it was an act done in discharge of their police duty and therefore, prior sanction would be required for launching prosecution against them.
In M. Gopalkrishnan v. State (through CBI, Banglore,) accused was the Chairman of Indian Bank who was charged under Section 420, IPC and Section 13 (1) (d) of the Prevention of Corruption Act, 1988. The prosecution version was that the accused was appointed by Reserve Bank of India and therefore he was not removable by the Central Government and thus he was not a ‘public servant’.
However, it was yet to be established that impugned acts were done by the accused in position of his official duty. Held, that the claim of the accused that he should be discharged for want of sanction under Section 197 was not acceptable at that stage and the matter should be left open to be decided later on.
It must be stated that where prosecution against public servant has already been launched without obtaining prior sanction and the sanction was obtained subsequently, it will not validate the proceedings
In the case of B.P. Shrivastava v. Dr. N.P. Mishra, an Assistant Civil Surgeon had filed a complaint against the Civil Surgeon, that while in operation theatre the Civil Surgeon abused the complainant before patients and hospital staff and ordered the hospital cook to turn out this ‘badmash’, meaning the complainant.
The Supreme Court held that there was nothing to show that this act was a part of the official duty of the Civil Surgeon and therefore no sanction was required under Section 197 for his prosecution.
Likewise, where a Post Master General during his inspection kicked the complainant, a post office clerk and abused him when the latter submitted his representation for cancellation of his transfer, the act of the Post Master General could not be said to have been done in purported exercise of his official duty, hence no sanction was required to launch prosecution against him.
Reiterating the same view the Supreme Court in Choudhary Parveen Sultana v. State of West Bengal, that the ‘acts done in discharge of official duty’ as contemplated under Section 197, Cr. P. C. do not include cases of abuse of power.
In the instant case, Deputy Superintendent of Police had committed acts of extortion and criminal intimidation while conducting investigation of case. It was held that he was not entitled to protection under Section 197, Cr. P. C. as the alleged acts could not be said to be part of the duties of the Investigation Officer while investigating an offence.
In Matajog Dobey v. H.C. Bhari, the Supreme Court held that the provisions of Section 197, Cr. P.C. are not violative of Article 14 of the Constitution of India as the discrimination is based on a rational classification and the public servants have to be protected against false, vexatious or mala fide prosecutions in the discharge of their official duties while the private citizens not so engaged do not need such protection.
The Supreme Court in State of Andhra Pradesh v. Narsinghachary made it clear that it is not necessary for prosecution that competent Authority granted sanction as required in terms of Section 197, Cr. P.C. as a witness if the sanctioning order (or letter) is unambiguous and does not suffer from any lacuna or defect. Thus summoning of sanctioning authority as a prosecution witness is deemed unnecessary under Section 197, Cr. P.C.
Sub-sections (3) and (3-A) extend similar protection of the members of the Armed forces: Section 132 (3) (a) of Cr.P.C. defines ‘Armed forces’ as meaning the Military, Naval and Air Force. But Section 3 of the Central Reserve Police Force Act, 1949 provides that the CRPF squarely falls within the expression “Armed Forces” for the purpose of Section 197(2). Therefore, qualified privilege is given to them by requiring previous sanction for taking cognizance against such personnel.