PROSECUTION OF PUBLIC SERVANTS

[Mr. M. GOVINDARAJAN]

Section 197 of Cr.PC

Section 197 of Cr.PC provides the procedure of prosecution of Judges and public servants.  Section 197 (1) of the code provides that 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-

• 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;
• 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 proviso to this section provides 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.

Section 197 (2) provides that no Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

Section 197 (3) provides that the State Government may, by notification, direct that the provisions of sub- section (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, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

Section 197 (3A) provides that 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 under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

Section 197 (3B) notwithstanding anything to the contrary contained in this Code or any other law, it is hereby 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.

Section 197 (4) provides that 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.

Public servants

The term ‘public servant’ has not been defined in Criminal Procedure Code but defined in Indian Penal Code.   Section 21 of IPC defines the term ‘public servant’ as denoting a person falling under any of the descriptions hereinafter following; namely:-

• Every Commissioned Officer in the Military,Naval or Air ForcesofIndia;
• Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
• Every officer of a Court of Justice(including a liquidator, receiver or commissioner) whose duty it is as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
• Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;
• Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
• Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
• Every officer ofthe Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
• Every officer whose duty it is, as such officer, to take, receive, keep or. expend any property on behalf ofthe Government, or to make any survey, assessment or contract on behalf ofthe Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests ofthe Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;
• Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district
• Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
• Every person-

• in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
• in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).

Illustration

A Municipal Commissioner is a public servant.

Explanation 1 to this section provides that Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

Explanation 2 to this section provides that wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

Explanation 3 to this section provides that the word "election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.

In ‘Subramanian Swamy V. Manmohan Singh and another’ -  2012 (2) TMI 140 - SUPREME COURT OF INDIA  the Supreme Court held that public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favor 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 the 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.

Scope of the Section 197

In ‘K. Satwant Singh V. State of Punjab’- 1959 (10) TMI 32 - SUPREME COURT OF INDIA a Constitution Bench while examining the scope of Section 197 CrPC, observed that it appears to the Court to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty.  For instance, acceptance of a bribe, an offence punishable under Section 161 IPC, is one of them and the offence of cheating of abetment thereof is another.  Where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of the public servant, the official status finishing only the occasion or opportunity for the commission of the offences.  The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

In ‘R.R. Chari V. State of UP’ – 1951 (3) TMI 26 - SUPREME COURT OF INDIA the Supreme Court, while examining the scope of Section 197 held that it is clear that first part of Section 197 (1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities.   In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences.  The object of Section 197(1) is clearly to save public servants from frivolous prosecution.

Whether every act requires sanction?

In ‘Baijnath V. State of MP’ – 1965 (5) TMI 41 - SUPREME COURT the Supreme Court held that it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of the CrPC; nor even every act done by him while he is actually engaged in the performance of his official duties so that, if questioned it could be claimed to have been done by virtue of his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary.  It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of CrPC will be attracted.  An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty.  Where it is unconnected with the official duty there can be no protection.  It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.

Reasonable connection

In ‘Matajog Dobey V. H.C. Bhari’ – 1955 (10) TMI 3 - SUPREME Court it was alleged by the appellant that while conducting a search, the officials of the Income Tax Department had forcibly broke open the entrance door of the house and interfered with the boxes and drawers of the table.  It was alleged by the appellant therein that the officials tied him and beat him up.  Upon an enquiry of the said complaint, the Magistrate came to the conclusion that a prima facie case had been made out and issued process.  During the course of trial the issue pertaining to want of sanction was urged.  The Supreme Court held that the public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.  The Supreme Court further held that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of the performance of his duty.

Grant of sanction is not an idle formality

In ‘R.S. Nayak V. A.R. Antulay’ – 1984 (2) TMI 351 - SUPREME COURT the Supreme Court held that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider.  By a catena of decisions, it had been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction.    A grant of sanction is not an idle formality but a solemn and sacrosanct which removes the umbrella of protection of government servants against  frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before prosecution could be launched against public servants.  The legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority would alone be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative.

Latest case law

In ‘N.K. Ganguly V. CBI, New Delhi’ – 2016 (8) TMI 501 - SUPREME COURT a criminal case was filed against the appellant and other officers under Section 120 B of IPC read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 in the matter relating to the alleged unauthorized and illegal transfer of plot No. 119, Noida from the Institute of Cytology and Preventive Oncology (ICPO) to ICPO – ICMR (India Council of Medical Research) Cooperative Group Housing Limited, Noida by that transactions they have been benefited to the tune of ₹ 4.34 crores.  It was alleged that officers were had entered into a criminal conspiracy by abusing their position as public servants and had unauthorizedly and illegally transferred the plot.   The membership of the society was granted to such persons who were otherwise not eligible for granting membership as per the bye laws of the Society.  The Officers of the New Okhla Industrial Development Authority allowed the transfer of the said plot unauthorizedly and illegally from ICPO to ICPO-ICMR Housing Society, despite the fact that they were not competent to pass such order of transfer.

After the completion of the investigation, a charge sheet was filed against the appellants for the alleged offences committed by them on account of unauthorized and illegal transfer of the plot in question.  The competent authorities declined to grant sanction for prosecuting the appellants.   After considering the charge sheet and other materials available on record the Special Judge came to the conclusion that there is a prima facie case appeared to have been made out by CBI against the appellants.  Accordingly the Special Judge has taken cognizance and summons was issued against the appellants to face the trial for the said offences.

Aggrieved of the order the appellants filed applications before the High Court urging various grounds and prayed that the entire proceedings on the file of the Special Judge be quashed.  The High Court found no merit in the applications and refused to interfere with the order of the Special Judge and dismissed the same.  Hence the present appeal.

The appellants submitted the following before the Supreme Court-

• The entire transaction of transferring the plot in question in favor of ICPO-ICMR Housing Society was handled in a transparent manner and it was done keeping in view the dire need of the housing of the employees of ICPO –ICMR;
• The transfer of the said plot from ICPO to ICPO-ICMR Housing society was done after obtaining legal opinions and necessary sanctions from the competent authority of Noida;
• CBI withheld the report of CAG while submitting the charge sheet before the Special Judge,which is not tenable in law;
• No prior sanction was obtained from the Central Government, which was mandatorily required under Section 197 CrPC as the appellants were employed as public servants at the time of commission of alleged offences;
• The transfer of the plot in question occurred when the appellants were holding public officeand the alleged offences committed by them, if at all, in discharge of their official duty;
• The Special Judge erred in taking cognizance of the offences alleged against the appellants without prior sanction of the Central Government having obtained by the respondent;

The following are the submissions on the part of the Government authorities-

• The appellants entered into a conspiracy to illegally transfer the plot in question in favor of the said society without obtaining the permission of the competent authority of Noida with an ulterior motive to make unlawful gain for themselves;
• The appellants became members of the society even they were not eligible to members of the society and thereafter proceeded to transfer the plot be enrolled as members of the society, and thereafter proceeded to transfer the plot at a value which was much lesser than the prevailing market value at the time, thus making an unlawful gain for themselves, which is an offence;
• The High Court has rightly dismissed the applications filed by the appellants by passing a valid judgment and order which does not call for interference by the Supreme Court in exercise of its appellate jurisdiction;
• Therefore no previous sanction is required to be obtained from the competent authority under Section 197 of CrPC.

On consideration of the arguments of both sides, the Supreme Court considered the following points-

• Whether an offence under Section 120 B IPC is made out against the appellants, and if so, whether previous sanction of the Central Government is required to prosecute them for the same?
• Whether the order passed by the Special Judge taking cognizance of the offence against the appellant is legal and valid?

The Supreme Court observed that a perusal of the charge sheet reveals that there is sufficient material on record to indicate the existence of the alleged conspiracy.  In view of the same Section 197 CrPC is squarely applicable to the facts of the present case. Prior sanction of the Central Government was required to be taken by the respondent before the Special Judge took cognizance of offence once the final report was filed under Section 173 (2).  The Supreme Court analyzed the case laws relied on both sides.  The Supreme Court held that it becomes clear that for the purpose of obtaining previous sanction from the appropriate Government under Section 197 CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused.  It is also important for the court to examine the allegations contained in the final report against the appellants, to decide whether previous sanction is required to be obtained by the respondent from appropriate Government before taking cognizance of the alleged offence by the Special Judge against the accused.  In the instant case, since the allegations made against the appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it is essential for the Special Judge to correctly decide as to whether the previous sanction of the Central Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.

The Supreme Court set aside the impugned judgment and order of the High Court and quashed the proceedings taking cognizance and issuing summons to the appellants by the Special Judge, Anti Corruption (CBI) in absence of previous sanction obtained from the Central Government to prosecute the appellants as required under Section 197 of Cr.PC.

Discussions to this article

[abhi panic]

Sir,

Your articles are thought provoking and erudite. Thanks.

I wish to bring to your notice that there is a spelling mistake in the caption "PROSECTUION" - It should be "PROSECUTION".

I request that you get the same corrected.