2003 (12) TMI 675 - SC - Indian Laws

Applicability of Section 197 to retired public servants - Scope and ambit of Section 197 of the Code of Criminal Procedure, 1973 - commission of offences punishable u/s 120-B, Section 420 read with Section 511 of the Indian Penal Code, 1860 ('IPC'), Section 5(2) (1)(d) of the Prevention of Corruption Act, 1947 ('Old Act') corresponding to Section 13(1)(d) of the Prevention of Corruption Act, 1988 ('New Act') - HELD THAT - Section 197(1) provides that when any person who is or was 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 on purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) 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 the Union, of the Central Government and (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. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant . It was in pursuance of this observation that, the expression was come to be employed after the expression is to make the sanction applicable even in cases where a retired, public servant is sought to be prosecuted. Both Amrik Singh 1955 (2) TMI 29 - SUPREME COURT and Shreekantiah 1954 (12) TMI 34 - SUPREME COURT were noted in that case. 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 u/s 197 of the Code is, therefore, no bar. Above being the legal position which is fairly well settled, the High Court's view cannot be maintained on the facts of the case. The impugned judgments are set aside. We make it clear that our interference shall not be construed as if we have expressed any opinion on the merits of the case. Appeals are allowed to the extent indicated.

Summary

Issues Involved:
1. Scope and ambit of Section 197 of the Code of Criminal Procedure, 1973.
2. Requirement of sanction for prosecution under Section 197 of the Code.
3. Applicability of Section 197 to retired public servants.
4. Nature of offences requiring sanction under Section 197.

Summary:

Scope and Ambit of Section 197 of the Code of Criminal Procedure, 1973:
The Supreme Court examined the scope and ambit of Section 197 of the Code of Criminal Procedure, 1973, which provides protection to public servants against prosecution for acts done in the discharge of their official duties. The Himachal Pradesh High Court had held that proceedings against the accused could not proceed without the requisite sanction u/s 197 of the Code.

Requirement of Sanction for Prosecution:
The Court emphasized that the protection under Section 197 is to prevent vexatious criminal proceedings against public servants for acts done in the discharge of their official duties. The protection is available only when the alleged act is reasonably connected with the discharge of official duty and is not merely a cloak for doing the objectionable act. The Court cited several precedents, including Shreekantiah Ramayya Munipalli v. The State of Bombay and Amrik Singh v. The State of Pepsu, to highlight the necessity of sanction for acts done in the discharge of official duties.

Applicability of Section 197 to Retired Public Servants:
The Court clarified that the protection under Section 197 extends to retired public servants as well. This was in line with the Law Commission's 41st Report, which suggested that protection is needed as much after retirement as before. The Court referred to Kalicharan Mahapatra v. State of Orissa to affirm that a public servant who committed an offence while in service can be prosecuted with the requisite sanction if he continues to be a public servant when the court takes cognizance of the offence.

Nature of Offences Requiring Sanction:
The Court reiterated that not every offence committed by a public servant requires sanction under Section 197. Offences like criminal conspiracy (Section 120-B IPC) and criminal misconduct (Section 5(2) of the Prevention of Corruption Act) do not fall within the scope of Section 197 as they are not part of the official duties of a public servant. The Court cited Harihar Prasad v. State of Bihar and State of Kerala v. Padmanabhan Nair to support this view.

Conclusion:
The Supreme Court set aside the High Court's judgment, holding that the High Court misconstrued the scope and ambit of Section 197. The Court clarified that the requirement of sanction under Section 197 is not a bar for prosecuting offences like forgery (Sections 467, 468, 471 IPC) and criminal conspiracy (Section 120-B IPC). The appeals were allowed to the extent indicated, without expressing any opinion on the merits of the case.