|This query is : Resolved
Posted On 14 June 2013 at 16:50
BACKGROUND MY LAST QUERY & Ld. MEMBERS’ REPLY, FOR REFERENCE.
From V N K Menon querist
In a case, ‘X’ filed a case u/s 405, 420 IPC against employer ‘Y’ for p.f. deducted but not deposited by Y – analogous case is of Kingfisher Airlines. (It is pertinent to mention that Y is entangled in anther graft case and in a number of environmental violations). Police Investigation was ordered by Magistrate in the p.f. matter.
There are a’fortiori reasons to believe that that I.O. has been bribed by Y and he stated that no cognizable offence has been committed. Magistrate asked the IO to produce on what basis he has arrived at the Status report.
IO submitted some documents and on careful scrutiny it was found that the documents do not support his version and mislead the court. X filed protest petition to reject /dismiss status report and summon accused. The matter was listed for arguments. IO abstained.
In the meantime new Magistrate came and he hurriedly dismissed the complaint without arguments the very first day of his in the court for implied reasons.
Revision petition was filed by X making IO and Y as parties. Notice was sent to Y to appear by sessions. This means Status Report was rejected.
Now the question is how IO can be prosecuted u/s 218 and 167 IPC and /or any other provisions ? Whether permission is required from Police to prosecute the IO under the Delhi Police Act and who is the authority who gives permission?
Shall be grateful for members’ valuable views.
Thanks and regards,
LD. MEMBERS’ VALUABLE OPINION / GUIDANCE
From: Mr. Devajyoti Barman
“You have to separately lodge complaint for prosecuting the IO.
No sanctioning is needed to take cognizance of this charges. However before commencement of trial the sanction should come.”
Mr. Raj Kumar Makkad
“As IO has done offence beyond his duty, no sanction is required and he can definitely be taken in a separate complaint under the sections you propose.”
From: VNK Menon
Thanks from the depth of heart to all members for valuable guidance/opinion,
Shall appreciate valuable opinion from experts/members.
Since the IO has not followed proper protocol of investigation, whether filing fresh case either with Magistrate will be sustainable or in Sessions; which is the proper way. If so what can be the limitation.
Thanks and regards,
Nadeem Qureshi 9953809956
Posted On 14 June 2013 at 23:21
as per section 197 of Cr.PC previous sanction from State/center Govt is mandatory if the case is against Judges or Public servant. because in your query The IO has committed alleged act, in the discharge of his official duty.
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save 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-
3["Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code.".]
(a) In the case of it person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
1[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, whenever they may be serving, and thereupon the provisions of that sub-section will apply as if lot the expression "Central Government" occurring therein, the expression "State Government were substituted.
2[(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued trader clause (I) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is here by declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the court before which the trial is to be held.
1. Added by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)
2. Ins. by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)
3. Inserted by Section 18 of “The Criminal Law (Amendment) Act, 2013″
For sub-section (3) of section 197, the following subsection shall be submitted, namely.
“(3) The State Government may, by notification, direct that the provisions of’ subsection (2) shall apply.
(a) To such class or category of the members of’ the Forces charged with the maintenance of’ public order, or
(b) To such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or subsection (2) apply] charged with the maintenance of public order.
As may be specified in the notification wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if’ for the expression Central Government occurring therein, the expression State Government were substituted.”
[Vide President's Act 3 of 1980. (w.e.f. 5-6-1980)].
After section 197, the following section shall be inserted namely.
“197A. Prosecution of commissioner of Receiver appointed by civil court.- When any person who is a Commissioner or Receiver appointed by a court under the provisions of the Code of Civil Procedure, 1908, is accused of any offence alleged to have committed by him while acting or purporting to act in the discharge of his functions as Commissioner or Receiver, no court shall take cognizance of such offence except with the previous sanction of the court, which appointed such person as Commissioner or Receiver, as the case may, be.”
[Vide Maharashtra act 60 of 1981, sec. 2 (w.e.f 5-10-1981)]
Nadeem Qureshi 9953809956
Posted On 14 June 2013 at 23:23
The Supreme court held in a Judgement
SC: Accused public servants not protected by section 197 CrPC
The Supreme Court has ruled that a public servant cannot be given the protection of sanction under Section 197 CrPC if he is facing allegations of indulging in criminal offences.
A bench comprising Justices Arijit Pasayat (since retired), D K Jain and Mukundakam Sharma, while allowing the appeal of the state of Uttar Pradesh against the acquittal of an officer, Paras Nath Singh, by the trial court as well as by Allahabad High Court, noted in its 12-page judgment that forgery, criminal conspiracy, cheating and taking gratification cannot form part of official discharge of duty by a public servant.
Speaking for the Bench, Justice Pasayat noted in the judgment, ‘If on the facts therefore, it is prima facie found that the act or omission, for which the accused was charged, had reasonable connection with discharge of his duty, then the act must be held as official in which applicability of Section 197 of the Code cannot be disputed.’ ‘A public servant, however, is not entitled to indulge in criminal activities,’ he said.
He added, ‘That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B IPC sanctioned under Section 197 of the code is a condition precedent for launching the prosecution, is equally fallacious.’ The apex court also noted, ‘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.’ However, another bench of the SC headed by Justice Altamas Kabir has held the prosecution of some senior police officers of Maharashtra under the Maharashtra Control of Organised Crime Act (MCOCA), on the ground that the accused cannot be prosecuted without prior sanction from the police officer in the rank of Additional Director General of Police.
The eight accused police officers were part of a raiding party that allegedly caught one Himmat Nanda accepting a bribe of Rs three lakhs on behalf of Singh.
The special investigating team was set up by the special judge under JCP (Crime) Meera Borvankar.
After the SC verdict, no proceedings can be continued against the persons named by Singh under MCOCA despite their alleged involvement in organised crime.
The Bombay High Court had directed the special MCOCA judge to consider the complaint made by Mumbai ASI Nitindra Singh on August 19 2004 against 14 persons including eight senior police and government officials and members of the Anti-Corruption Bureau.
Allowing the appeal of Maharashtra government, the apex court bench headed by Justice Kabir ruled that both in case of a private complaint and a police report, sanction from ADGP was a must in view of the provisions of MCOCA which would have an overriding affect over the provisions of the CrPC.
Nadeem Qureshi 9953809956
Posted On 14 June 2013 at 23:27
JUSTICE B.S. Chauhan, JUSTICE Swatanter Kumar of The Supreme Court of India in the case of General Officer Commanding vs Cbi & Anr. Decided on 1 May, 2012
WHEN SANCTION REQUIRED:-The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. 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 done 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 official duty.
QUOTED CASE LAWS:-
If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Section 197 Cr.P.C. cannot be disputed. (See: R. Balakrishna Pillai v. State of Kerala & Anr., AIR 1996 SC 901; S.K. Zutshi & Anr. v. Bimal Debnath & Anr., AIR 2004 SC 4174; Center for Public Interest Litigation & Anr. v. Union of India & Anr., AIR 2005 SC 4413; Rakesh Kumar Mishra v. State of Bihar & Ors., AIR 2006 SC 820; Anjani Kumar v. State of Bihar & Ors., AIR 2008 SC 1992; and State of Madhya Pradesh v. Sheetla Sahai & Ors., (2009) 8 SCC 617).
WHEN SANCTION NOT REQUIRED:- The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. However, performance of public duty under colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. It is quite possible that the official capacity may enable the pubic servant to fabricate the record or mis- appropriate public funds etc. Such activities definitely cannot be integrally connected or inseparably inter-linked with the crime committed in the course of the same transaction.
QUOTED CASE LAWS:-
Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction. (Vide: Bhanuprasad Hariprasad Dave & Anr. v. The State of Gujarat, AIR 1968 SC 1323; Hareram Satpathy v. Tikaram Agarwala & Ors., AIR 1978 SC 1568; State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339; Anil Saran v. State of Bihar & Anr., AIR 1996 SC 204; Shambhoo Nath Misra v State of U.P. & Ors., AIR 1997 SC 2102; and Choudhury Parveen Sultana v. State of West Bengal & Anr., AIR 2009 SC 1404).
FURTHER CASE LAWS
In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative. It is so, for the reason that the power of the State is performed by an executive authority authorised in this behalf in terms of the Rules of Executive Business framed under Article 166 of the Constitution of India insofar as such a power has to be exercised in terms of Article 162 thereof. (See : State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009) 17 SCC 92).
In Satyavir Singh Rathi, ((2011) 6 SCC 1.), supreme Court considered the provisions of Section 140 of the Delhi Police Act 1978 which bars the suit and prosecution in any alleged offence by a police officer in respect of the act done under colour of duty or authority in exercise of any such duty or authority without the sanction and the same shall not be entertained if it is instituted more than 3 months after the date of the act complained of. A complaint may be entertained in this regard by the court if instituted with the previous sanction of the administrator within one year from the date of the offence. This Court after considering its earlier judgments including Jamuna Singh (AIR 1964 SC 1541); The State of Andhra Pradesh v. N. Venugopal & Ors., AIR 1964 SC 33; State of Maharashtra v. Narhar Rao, AIR 1966 SC 1783; State of Maharashtra v. Atma Ram & Ors., AIR 1966 SC 1786; and Prof. Sumer Chand v. Union of India & Ors., (1994) 1 SCC 64, came to the conclusion that the prosecution has been initiated on the basis of the FIR and it was the duty of the police officer to investigate the matter and to file a chargesheet, if necessary. If there is a discernible connection between the act complained of by the accused and his powers and duties as police officer, the act complained of may fall within the description of colour of duty. However, in a case where the act complained of does not fall within the description of colour of duty, the provisions of Section 140 of the Delhi Police Act 1978 would not be attracted.
This Court in State of Orissa & Ors. v. Ganesh Chandra Jew, AIR 2004 SC 2179, while dealing with the issue held as under: “….. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.” See also: P. Arulswami v. State of Madras, AIR 1967 SC 776
This Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors., AIR 1998 SC 1524, held as under: “……The legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the concerned Government in a case where the acts complained of are alleged to have been committed by public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings.”
In Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, the Constitution Bench of this Court held that requirement of sanction may arise at any stage of the proceedings as the complaint may not disclose all the facts to decide the question of immunity, but facts subsequently coming either to notice of the police or in judicial inquiry or even in the course of prosecution evidence may establish the necessity for sanction. The necessity for sanction may surface during the course of trial and it would be open to the accused to place the material on record for showing what his duty was and also the acts complained of were so inter-related or inseparably connected with his official duty so as to attract the protection accorded by law. The court further observed that difference between “acting or purporting to act” in the discharge of his official duty is merely of a language and not of substance. On the issue as to whether the court or the competent authority under the statute has to decide the requirement of sanction, the court held: “Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the Court, which is the ascertainment of the true nature of the act……There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter- related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.”
In Sankaran Moitra v. Sadhna Das & Anr., AIR 2006 SC 1599, this Court held as under “The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted.” See also: Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors., AIR 2001 SC 2198
In S.B. Saha & Ors. v. M.S. Kochar, AIR 1979 SC 1841, this Court dealt with the issue elaborately and explained the meaning of “official” as contained in the provisions of Section 197 Cr.P.C., observing: In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged…….. 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 under the said provision.”
In Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274, this Court reiterated the same view while interpreting the phrase “official duty”, as under: “…Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned……”
In P.K. Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC 229, this Court dealt with the issue wherein an Army officer had allegedly indulged in the offence punishable under Section 166 IPC - public servant disobeying law, with intent to cause injury to any person and Section 167 IPC - public servant framing incorrect document with intention to cause injury, and as to whether in such an eventuality sanction under Section 197 Cr.P.C. was required. The Court held as under: “As the offences under Sections 166 and 167 of the Penal Code have a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was prerequisite before the learned Judicial Magistrate could issue summons upon the appellant.”
This Court in Nagraj v. State of Mysore, AIR 1964 SC 269, held that: “ The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of S. 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If S. 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected.”
In Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431, the Constitution Bench of this Court while dealing with the issue involved herein under the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958, held as under: “Under Section 6 protection has been given to the persons acting under the Central Act and it has been prescribed that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by the said Act except with the previous sanction of the Central Government. The conferment of such a protection has been assailed on the ground that it virtually provides immunity to persons exercising the powers conferred under Section 4 inasmuch as it extends the protection also to “anything purported to be done in exercise of the powers conferred by this Act”. It has been submitted that adequate protection for members of armed forces from arrest and prosecution is contained in Sections 45 and 197 CrPC and that a separate provision giving further protection is not called for. It has also been submitted that even if sanction for prosecution is granted, the person in question would be able to plead a statutory defence in criminal proceedings under Sections 76 and 79 of the Indian Penal Code. The protection given under Section 6 cannot, in our opinion, be regarded as conferment of an immunity on the persons exercising the powers under the Central Act. Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution or a suit or other civil proceeding is instituted against such person. Insofar as such protection against prosecution is concerned, the provision is similar to that contained in Section 197 CrPC which covers an offence alleged to have been committed by a public servant “while acting or purporting to act in the discharge of his official duty”. Section 6 only extends this protection in the matter of institution of a suit or other legal proceeding. In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the State and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation.”
In State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, this Court while dealing with the issue held as under: “Use of the words “no” and “shall” makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of.”
In Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr., AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word ‘cognizance’ as under: “In legal parlance cognizance is ‘taking judicial notice by the court of law’, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially.” See also: Bhushan Kumar v. State (NCT of Delhi), (2012) 4 SCALE 191
In State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, this Court explained the meaning of the term ‘the very cognizance is barred’ as that the complaint cannot be taken notice of or jurisdiction or exercise of jurisdiction or power to try and determine causes. In common parlance, it means taking notice of. The court, therefore, is precluded from entertaining a complaint or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.
Nadeem Qureshi 9953809956
Posted On 14 June 2013 at 23:31
as per manupatra Article
Sanctions for Prosecution of Public Servants: A Necessary Evil
Biplab Kumar Lenin*
This article is an attempt to explain the sanctions contained in the respective pieces of
legislations for the purpose of removal of public servants, its validity under the Indian
Constitution and when the provisions can be considered thereto.
Sanction, when required under Section 19 Prevention of Corruption Act and when under
Sec. 197 of Code of Criminal procedure(Cr.P.C.):
Central or a State Government is necessary for the prosecution of a public servant not removable
from his office save with the permission of the Government1. No sanction is required under this
section to prosecute a public servant removable by an authority lower than the Government.
Sanction is required of the competent authority whether the public servant2 is removable by the
Government or by an authority lower than the Government3. Sanction is not required under
Section 19 of the P.C. Act, if the public servant is no longer in service at the time the Court takes
cognizance of the offence, but is required under Section 197 Cr.P.C. even where the public servant
is no longer in service at the time the Court takes cognizance of the offence. Under Section 19 of
the P.C. Act, sanction for prosecution is required for an offence punishable under Sections 7, 10,
11, 13, 15 of the Act, while under Section 197(1) Cr.P.C. sanction is required for an offence
committed while acting or purporting to act in the discharge of his official duty, and not otherwise.
Validity of provision :
Article 14 of the Constitution does not render Section 197, ultra vires as the discrimination
is based upon a rational classification. Public servants have to be protected from
harassment in the discharge of official duties, while ordinary citizens not so engaged do not
require this safeguard4. Section 197(1) does not create any arbitrary discrimination; on the
other hand, it makes a reasonable differentia: public servants not removable from their
respective offices save by or with the sanction of a State Government or the Central
Government, are put in one class and the public servants who are removable from their
respective offices even without such sanction are put in another class. The reason for this
classification quite obviously is that the public servants who hold responsible positions and
who discharge important functions shall alone be afforded certain amount of protection from
the harassment resulting from vexatious prosecutions, while those who discharge
comparatively unimportant functions or hold less responsible positions would not be
accorded such protection. Such a classification can in no sense be regarded as arbitrary or
unreasonable and the section is not, therefore, inconsistent with article 14 of the
Need for sanction when to be considered?
In Matajog Dobey v. H.C. Bhari6, It is now authoritatively laid down by the Supreme Court that it is
not always necessary that the need for sanction under section 197 is to be considered as soon as
the complaint is lodged and on the allegations therein contained. The question may arise at any
stage of the proceedings. The complaint may not disclose that the act constituting the offence was
done or purported to be done in the discharge of official duty; but facts subsequently coming to
light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial,
may establish the necessity for sanction. Whether sanction is necessary or not may have to be
determined from stage to stage. The necessity may reveal itself in the course of the progress of
No form of sanction but application of mind necessary :
Under Section 197(1), no set form of sanction is necessary8. In a case under Section 6 of
the Prevention of Corruption Act, it is stated by the Supreme Court that it should be clear
from the form of the sanction that the sanctioning authority considered the evidence before
it and after a consideration of all the circumstances of the case sanctioned the prosecution,
and, therefore, unless the matter can be proved by other evidence, in the sanction itself the
facts should be referred to indicate that the sanctioning authority had applied its mind to
the facts and circumstances of the case9.
As laid down by the Supreme Court, a public servant can be said to act or purport to act in the
discharge of his official duty, if his act is such as to lie within the scope of his official duty. A judge
neither acts nor purports to act as a Judge in receiving a bribe though the judgment which he
delivers may be such an act; nor does a Government Medical Officer act or purport to act as a
public servant in picking the pocket of a patient whom he is examining though the examination
itself may be such an act10. The acid test is as to whether the public servant can reasonably be
inferred to have acted by virtue of his office. What is important is the quality of the act. The
question whether an Offence was committed in the course of official duty or under colour of office
depends on the facts of each case11. The Supreme Court held, where the accused, Minister of
Electricity, Government of Kerala, is alleged to have supplied certain Units of electricity without the
consent of the Government, that the alleged criminal conspiracy has direct nexus with discharge of
his official duties and that as such sanction is required for his prosecution under Section 197
The disciplinary proceedings against government servants are taken under Service rules framed by
Government under Article 309 of Constitution. Besides, a public servant can also be prosecuted for
bribery and corruption in a criminal court. With a view to expedite such trials, the prevention of
Corruption act, 1947 (now replaced with P.C. Act) makes certain provisions. As it is in the interest
of public that corruption be eradicated, so also it is in the public interest that honest public
servants should be able to discharge their duties free from false, frivolous, and malicious
accusations. PCA thus seeks to balance both objectives. One hand, it seeks to provide for certain
safeguards against frivolous trials, other hand it seeks to provide for expeditious trial of corruption
cases. One such safeguard contained in Section 17 of PCA is that before a public servant can be
prosecuted for any specific offence13, sanction of State Government is necessary in case of a
person who is employed in connection with the affairs of a state and is not removable from his
office save by or with the sanction of the State Government Grant of sanction is only an
administrative function. Facts collected during the course of investigation have to be brought
before the sanctioning authority and the sanctioning authority has to consider the material. The
grant of sanction being an administrative act, the need to provide an opportunity of hearing to the
accused, does not arise14. Similar is in case of central Government. Explaining the provision
Supreme Court has said that sanction of that competent authority alone is necessary which is
competent to remove the public servant from the office which he is alleged to have misused or
abused for corrupt motive. Further the authority, entitled to grant sanction must apply its mind to
the facts of the case, evidence collected and other material before according sanction.
In Mohd. Iqbal Ahmed v. state of Andra pradesh15 SC has emphasised on two significant aspects of
of sanction for prosecution. First, any case instituted without a proper sanction must fail as the
entire proceedings are rendered void abinitio. Therefore the prosecution must prove that valid
sanction has been granted by the sanctioning authority. Secondly, the sanctioning authority must
be satisfied that a case for sanction has been made out constituting the offence. the sanctioning
authority at the time of giving sanction must be aware of the facts constituting the offence and
must apply its mind. The grant of sanction is not an idle formality. It is a sacrosanct act which
affords protection to the Government Servants against frivolous prosecution.
In State of Maharastra v. R.S. Nayak16 it was held that protection under Section 197 is available
only when alleged act done by public servant is reasonably connected with discharge of his official
duty17. For the interest of democratic government and its functioning, the Governor must act in
such a case on his own.
Difference between sanction under Section 195 and sanction under Sections 96 and 197: A court
granting sanction under Section 195(1)(b) in connection with offences in a judicial proceeding in
such court, acts in its judicial capacity in granting the sanction upon legal evidence, whereas the
Government granting sanctions under Sections 196 and 197 acts purely in its executive capacity,
and the sanction need not be based on legal evidence18.
Acts to fall within scope and range of official duty for availing of protection :
This section requires that the concerned public servant is not removable from his office
except by the Central Government or State Government or with the sanction of the
concerned Governments; he has committed the alleged offence while he was performing his
official duty or purporting to act in the discharge of the official duty. Then if the public
servant is employed in connection with the affairs of the union sanction from the Central
Government and if employed in connection with the affairs of the State sanction from the
State Government is needed19. The connection between the complained act and the official
duty must be such that accused can say that the act was done in the course of the
performance of his duty, but such claim must not be a pretended or fanciful claim20.
Sanction not necessary for bribery :
It has been settled by the Privy Council that sanction under Section 197, is not necessary
before a public servant could be prosecuted for an offence under Section 161, I.P.C. A
public servant can only be said to act or to purport to act in the discharge of his official
duty, if his act is such as to be within the scope of his official duty21. The test as to the
necessity for sanction is whether the public servant, if challenged, can reasonably claim that
what he does; he does in virtue of his office. A public servant charged with an offence under
Section 120-B read with Section 161, I.P.C., cannot justify his act of receiving bribe as an
act done by him by virtue of the office that he held22. However, it was held by Karnataka
High Court that where the investigating officer had called an accused for interrogation and
the accused alleged that the investigating officer had demanded money, the act complained
of having been done while discharging official duties, this provision will apply23.
Discretionary powers of the Governor in relation to granting sanction for the prosecution
of Public Servants :
For the prosecution of public servants for offences which are fundamentally criminal in
nature, a grant of sanction under Section 197 of the Code of Criminal Procedure is
necessary. This grant of sanction has been accorded to Judges, Magistrates, and Public
servants, so that they can be prevented from frivolous prosecution and in cases where the
prosecution of these persons is not in public interest24.
Supreme Court in some cases have considered it to be the Council of Ministers and that even in
cases in which the Statutes use the expression 'Governor' , by way of process of interpretation the
Apex Court has held the expression to be interpreted as the 'State Government25.
"The power to sanction is nothing but an executive action of the Government. This is not a matter
with respect to which the Governor is required under the Constitution to act in his discretion26.
Also, it was held that even though Article 243(g) of the Constitution uses the word 'Governor', it
was interpreted to be the State Government27.
"Where functions entrusted to a Minister are performed by an official employed in the Minister's
Department there is in law no delegation because constitutionally the act or decision of the official
is that of the, Minister. The official is merely the machinery for the discharge of the functions
entrusted to a Minister"28.
It is very necessary to mention the relevant Articles in order to determine whether the Governor
would have discretion in such matters. Executive power of the State shall be vested in the
Governor and shall be exercised by him either directly or through officer's sub-ordinate to him in
accordance to the Constitution29.
Wherever the Constitution requires the satisfaction of the Governor for the exercise of any power
vested upon him by the mandate of the Constitution, the satisfaction required by the Constitution
is not to be construed as the personal satisfaction of the Governor but is the satisfaction of the
Governor in the constitutional sense under the Cabinet system of Government30. This essentially
implies that it is the satisfaction of the Council of Ministers as conveyed to the Governor, on the
basis of which the Governor acts. The legal position has been unambiguously expostulated in this
regard by the apex Court 31. "It is an elementary principle of democratic Government prevailing in
England and adopted in our Constitution that the Rajpramukh or the Governor as head of the State
is in such matters merely a constitutional head and is bound to accept the advice of his Ministers".
Issue in Kashmir:
Indian troops and agencies are killing innocent Kashmiri people with impunity .Killing of Villagers in
fake encounter, teenager Tufail Ahmad Matoo was killed allegedly by police. The killings have again
put Kashmir on boil and could trigger widespread protests across the Muslim majority region where
rebel violence is waning but anti-Indian sentiment still runs deep32.
Armed Forces (Special Powers) Act (AFSPA) :
Act was passed on September 11, 1958 by the Parliament of India. Due to following
1. Failure of the administration and the local police to tackle local issues.
2. Maintenance of Peace and Tranquility.
It gives Army officers legal immunity for their actions. There can be no prosecution, suit or
any other legal proceeding against anyone acting under that law. Nor is the government's
judgment on why an area is found to be "disturbed" subject to judicial review. Enforced in
Jammu and Kashmir in 1990, the law provides army officers legal immunity for their
actions. The law also gives security forces the power to arrest people and search their
homes without any warrant, as well as to use deadly force against people.
Questions that arise, In Case of fake encounter of 17-year-old Tufail Mattoo, was killed by a tear
gas canister which struck his head during a protest in Srinagar in June, 201033. Tear gas, rubber
bullets and water cannon are used all over the world in situations where protests turn violent but in
India, live ammunition seems to be the first and only line of defence. Even tear gas canisters are
so poorly designed here that they lead to fatalities.
Though the Army has arrested the soldiers responsible for the fake encounter, the only reason they
had the nerve to commit such a heinous crime was because they were confident they would get
away with it. The army officers involved in the kidnapping and murder of five Kashmiri civilians
there continue to be at liberty despite being charge-sheeted by the CBI. The Ministry of Defence
has refused to grant sanction for their prosecution and has taken the matter all the way to the
Supreme Court in an effort to ensure its men do not face trial. Even a non-commissioned officer
can shoot to kill based on themere suspicionthat it is necessary to do so to" maintain public
order"34. Question that is pertinent is What was the message that went out as a result? Probably
we need to think to get a proper answer.
On 13th September 2010, Cabinet Committee on Security is set to decide on the J&K government's
demand for partial withdrawal of the Armed Forces Special Powers Act. But still J&K is facing the
problem till date. We at times wonder what could be done in order to avoid such things in future
and Hope Peace return backs to Jammu & Kashmir. This is one such instance among the number of
instances which is happening on day to day basic in different parts of our country. We must always
remember and use the power given by the statute or Acts by our legislation judiciously in order to
make this place a wonderful place in the world to live in.
Globalisation has brought many changes, which has also positively affected our country. We
possess extraordinary resources as well as talent pools to bring changes in our system. i.e. the
system which is corrupt. Every citizen of our country now takes interest in playing vitals roles for
better governance of our country. They have become more vigilant and more protective about
themselves as well as our country. Now they ask question, they criticise, they protest against any
unhealthy activity which prevail in our system. Apart from doing these, they also make sure that
the Government is taking steps or measures in order to improve the situation of our country in
every perspective. When we speak about our government and system, a public servant plays a
very pivotal role in governing our country, because they are one most important organ of our
system, i.e. Executive. So the burden of executing every act of the system depends upon them. So
considering the importance of the role they play in our system, it is very much necessary that
public servant should inculcate the spirit of commitment within them and do excellence at the
grass-roots level, without which it will be impossible to create an environment of positive growth
and development in true sense. Although as a citizen of our country, even though I understand the
difficulty, which they undergo while performing their duty, but it should be always remembered
that, being such an important part of out system and governance, each and every public servant
should make sure that utmost quality of our administration is maintained. They should be
innovative enough to look for new opportunities. They must be sensitive enough to contribute to
creating a just and humane society. They must be in a position to accept challenges in every step
and should take every idealistic step in order to make our country India, free from fear of war,
want and exploitation and make our country a better place in this world to live in.
raj kumar makkad
Posted On 15 June 2013 at 14:27
You were required to confine your query in the same thread and no new thread was required to be initiated as no fresh issue has been raised by you. As already replied, there is no requirement to obtain the previous sanction.
Posted On 16 June 2013 at 12:56
Ld. Mr. Makkad,
my query was w.r. to which court the petition will be sustainable - whether Sessons or Magistrate's court - and it limitation. Hope I am able to deliver the goods.
Can you please look into.
Thanks & regards
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