This article is written by Bogineni Naga Jyothi. It provides awareness about the prosecution of judges and public servants and discusses the need for Section 197 for the protection of judges and public servants under the Criminal Procedure Code, 1973, which was enacted in 1973.
It has been published by Rachit Garg.
Every Member of Parliament can get immunity from any prosecution against proceedings in any court against anything said or voted upon by any member of the Parliament or committee thereof. Article 105(2) of the Constitution of India, 1950, will authorise the members to get involved courageously in Parliamentary discussions, and the above-mentioned members require an extensive defence against all civil and criminal proceedings that support a consecution to their speech or vote in Parliament. Likewise, judges and public servants who act in good faith while discharging their official duties can get immunity under Section 197 of the Criminal Procedure Code, 1973 (“CrPC”), which ensures that they are not exposed to needless legal disturbance or harassment based on false accusations. Let us now see what exactly Section 197 talks about.
Section 197 : An overview
Section 197 of the CrPC defines that no court is capable of taking cases against public servants and judges in litigation against crimes committed except with prior sanction from the competent authority. This Section gives immunity to public servants who work for the people with good faith and not to those who pretend to be good public servants.
- Under Section 197(1), When any person who is a judge, magistrate, or public servant not removable from his office saved with the sanction of the competent authority of the Government is accused of any offence alleged to have been committed by him while discharging his official duty, no Court shall take cognizance of such offence except with the previous sanction-
- In case of a person who is employed at the time of commission of an offence that is correlated with the affairs of the central government under Section 197(1)(a).
- in case of a person who is employed at the time of commission of an offence that is correlated with the affairs of the state government under Section 197(1)(b), where the offence is committed, look at the clause :
- Under Section 197(2), no court shall take cognizance of any offence alleged to have been committed by any member of armed forces of the union while discharging his official duty, except with the previous sanction of the central government.
- The State Government may direct that the provisions of Section 197(2) shall apply to the provisions of Section 197(2) shall apply to such category of the members of the Forces charged with the preservation of public order as may be mentioned therein, wherever they may be performing, and then the provisions of that sub-section shall apply to the expression “Central Government,” and the expression “State Government” shall be substituted under Section 197(3) by the official notification.
- Under Section 197(3A), despite anything as inscribed in Section 197(3), no court shall take cognizance of any offence alleged to have been committed by any member of the Forces charged with the preservation of public order in a state while discharge of his official duty during the Proclamation issued under Article 356(1) of the Constitution of India was in force therein, except with the previous sanction granted by the Central Government.
- Under Section 197(3B),however, anything against contained in this Code or any other law, it is hereby declared that any sanction granted 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 CrPC,1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period Proclamation issued under Article 356(1) of the Constitution of India 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.
- Under Section 197(4), the State Government or the Central Government, may decide to specify the court before which the trial is to be held, the person by whom, in what manner, and the offences for which the prosecution of such a judge, magistrate, or public servant is to be conducted.
Cognizance means the court has a command to take notice of an offence from the police or by any private aggrieved party to initiate the proceedings against the accused. The court can exercise its power of cognizance after getting the information from the police department through an FIR or from the private aggrieved party through a private complaint. The judge can exercise the power of cognizance under CrPC. In the case of public servants, no court shall take cognizance of the alleged act done by the accused during the course of their official duty, except with the previous sanction of the concerned government.
Bar on jurisdiction means to prohibit entering into the jurisdiction of the court. These are certain situations that impose a bar on the jurisdiction of courts:
- Previous adjudication.
- Lack of territorial jurisdiction.
- Exclusive jurisdiction of higher courts.
According to Section 197(1), while discharging official duty in good faith, any public servant, judge, or magistrate is not removable from his office, and he is protected and accompanied by the sanction of the government, which is given by the President at the central level and the governor at the state level, and no court can take cognizance of such an offence except with the previous sanction. Further, under Section 197(2) of the CrPC, except with the previous sanction, any court shall not take cognizance of any offence allegedly evolved to be committed by any member of the Armed Forces of the Union, while discharged from his official duty.
What is meant by a sanction
Sanction means an official permission or an approval of the competent authority to the institution of prosecution for the public servant. The main objective of the sanction is to protect the public servants from malicious prosecution for the offences that happened during the course of their official duty.
Is sanction essential under Section 197 of CrPC when the sanction is granted under Section 19 of the Prevention of Corruption Act
If the accused got the sanction under Section 19 of the Prevention of Corruption Act, 1988, the accused does not need to get the sanction under Section 197 of the CrPC.
Sanctions for the prosecution of the offences under the Criminal Procedure Code
Invoking Section 197 of the CrPC, the accused should be a government official, and the act should have been committed while discharging his official duty. There should be a reasonable nexus between the official duty and the alleged act.
Who is a Public Servant
Under Section 21 of the Indian Penal Code,1860 (“IPC”), a public servant means a person who is appointed through official notification or by the election process. The person could be a judge or magistrate, a member of the panchayat, an arbitrator and election commissioner, or a military officer.
Here, the competent authority is the government. The President of India is the competent authority at the central level, and the Governor of the State is the competent authority at the state level to grant the sanctions. In cases where the accused is a judicial officer, prior permission is needed from the Chief Justice of the High Court before filing the FIR.
Illustration
The Governor is the competent authority to grant sanction for the prosecution of the Chief Minister of the state for the offences committed under the Prevention of Corruption Act, 1988.
Duty of the sanctioning authority
After the relevant documents and records and all the appropriate materials are sent by the prosecution to the sanctioning authority, the sanctioning authority has to study all the relevant materials given by the prosecution before granting the sanction by paying attention to it. Without any bias, the sanctioning authority should issue the sanction only on the basis of whatever documents are produced by the prosecution. The sanctioning authority can grant the sanction after his satisfaction. Such satisfaction is totally based on the materials produced by the prosecution.
What happens if the sanction is granted by an incompetent authority
If the sanction is granted by an incompetent authority, it becomes null and void.
Duty of the prosecution
The prosecution has to submit all the relevant documents and records, charge sheets, and FIR to the sanctioning authority for granting sanction after the verification of all the documents and records. The records and the documents are different from case to case, so the prosecution has to provide the relevant documents that are related to such a case.
According to Section 21 of the IPC, the list of persons given below are the public servants who are protected under Section 197 of the CrPC.
- A political official,
- An officer of the court,
- Election commissioner,
- Any arbitrator,
- Military officer,
- Officers appointed by the state or Central Government for remuneration,
- Any judge or magistrate,
- An assessor (he could be an evaluator, surveyor, examiner, reviewer, supervisory body, etc.),
- Member of Panchayat,
- Any person who is commissioned under the Armed Forces, etc.
Difference between a public servant and a government servant
A government servant is an employee of a specific government organisation or department. They are responsible for carrying out the policies and programmes of the government. A public servant is someone who serves the public; these include government employees, non-profit organisations, and charities that provide services to the public. To be a government servant, you need qualifications and experience. But, for the public servant, there is no need for qualification or professional experience.
Sanction is not required under Section 197 of the CrPC to prosecute the accused, a person who is a public servant, for various offences punishable under the IPC. The court can take cognizance without previous sanction to prosecute the accused for the offences punishable under the IPC.
Illustration
- Sanctions are not required for the prosecution of a minister after his resignation.
- Sanction for the prosecution of a public servant is not required for the offences under Sections 409, 420, 467, 468, and 471 of IPC.
- Under the Prevention of Corruption Act, 1988, the Special Judge can take cognizance of a complaint by a private person.
- Sanctions against the retired public servant are not required.
D T Virupakshappa v. C Subash (2015)
Facts of the case
The appellant in the present case is a police officer who is accused of an offence under the private complaint given by the respondent before the civil judge in Chikkanayakanahalli, Karnataka. The learned Magistrate took cognizance, registered the case under Sections 114, 120, 323, 324, 326, 341, and 506 read with Section 149 of the IPC, and issued summons to the appellant by complaint given by the complainant.
The appellant went to the Karnataka High Court under Section 482 of the CrPC, which was dismissed and challenged by the High Court. The facts and reasons for the impugned order are that, after reviewing the accusations made under the complaint, the sworn statement of the complainant and his witnesses go to show that the complainant was taken away from his garden at 10 a.m. on 06-06-2006 and further accusations made by the complainant were that he went to the police station on the next day evening and was detained until 10 p.m., and the accused ordered that he should not be let out until the complainant confesses his involvement in Sannamma’s murder. These accusations in the complaint are further confirmed in the affidavit to the statement of the complainant and his two witnesses.
At this stage, the High Court of Karnataka considered the sworn statements given by the complainant and the witness. The sworn statement given by the complainant and his two witnesses clearly outlines the offences alleged against the accused.
Issues
- Whether the appellant can get immunity under Section 197 of the CrPC?
- Whether the merits of the case can be discussed before the Supreme Court or not?
Contentions of the appellant
According to the accused, the statements made by the complainant are false and fatuous. The main argument of the accused is that the Magistrate could not have taken cognizance of the offence, registered the case, and issued proceedings against the appellant without sanction from the State Government under Section 197 of the CrPC. Because of that reason, the High Court dismissed the appeal. Aggrieved by it, the appellant went to the Supreme Court to seek justice.
Contentions of the respondent
According to the complainant, the statements made by them are true and accurate, and they want the accused to be penalised.
Judgement
Here, the accused assaulted the complainant to get some valuable information relating to the criminal case. The alleged behaviour of the accused has a relation to the discharging of the public duty.
The judgement is in the favour of the appellant, and the Honourable Supreme Court set aside the High Court’s impugned order and the proceedings instituted by the civil judge at Chikkanayakanahalli, Karnataka. Here the issue is about the sanction, so there is no discussion about the merits of the case, and the accused applied for the sanction before the state government, and that was produced before the Magistrate, and the Magistrate may proceed with the case in accordance with the law. Section 197 of the CrPC is to protect the sincere public servant who works for society and not for corrupt officials.
Inspector of Police & Anr. v. Battenapatla Venkata Ratnam & Anr.
Facts of the case
In this case, the District Registrar of Vijayawada lodged a complaint to the Police, CBCID Vijayawada, on July 7, 1999, against the respondents. The cause of action arose while the respondents were working as sub-registrars in the various offices of the state of Andhra Pradesh. The respondents conspired with the stamp vendors and the document writers for their own financial benefit and manipulated the registers, which are under their control, to obtain the registration of the documents with the old values of the respected properties. They have cheated the government and the public. On the complaint of the appellant, the complaint was filed under Section 173(2) of the CrPC against the respondents, and the report of the complaint was submitted before the Chief Metropolitan Magistrate, Vijayawada. The respondents objected that there was no sanction under Section 197 of the CrPC.
Issues
Whether the respondents can get immunity under Section 197 of the Criminal Procedure Code?
Contentions of the appellant
The misappropriation and fabrication of records do not fall under the discharging of official duty and the respondents are not eligible for immunity under Section 197. The fabrication of records leads to a loss of revenue for the government.
Contentions of the respondent
The respondent’s plea is to quash the petition filed by the appellant and they want to get immunity from the accusations made by the appellant.
Judgement
After the proceeding, the learned Magistrate gave an order on 03-07-2007 which is favourable to the appellant and the accused, and stated that the respondent has performed illegal acts beyond discharge of his official duty; there is no correlation between the acts committed and their official duties at this stage. Aggrieved by it, the respondent went to the Honourable High Court and filed a quash petition under Section 482 of the CrPC. Unfortunately, the High Court missed the important aspects of the given case and has given the judgement in favour of the respondents.
Aggrieved by it, the complainant approached the Supreme Court for justice. The appeal was allowed by the Supreme Court of India. The Honourable Supreme Court held that the cheating and creation of illegal records and misappropriation of the records cannot be discharged of their official duty as public servants. Their official duty is not to fabricate records or escape payment of taxes, and that leads to a loss to the Department of Revenue. Public servants who work honestly and in good faith to protect the welfare of the people are protected under this Section, the same cannot be preserved as a shield to protect corrupt public servants.
Sambhoo Nath Misra v. State of U.P. and Ors. (1997)
Facts of the case
The facts giving rise to the revision petition are that Shamboo Nath Mishra, here the applicant, has filed a complaint under Section 409, 420, 465, 477-A, 109 of the IPC against R.D. Thripati, the then chief medical officer, before the Chief Judicial Magistrate of Ballia. As per the accusations of the complaint, the complainant has been working as a class III employee, i.e., a vaccinator, since 1963, while Thripati has been working there from 1986 to 1988. On 08-11-1988, an application was made to the Chief Medical Officer for the disbursement of the salary arrears. A reply was received on the perusal of the records; it appears that the arrears were disbursed to the complainant, but those were not disbursed to the complainant. The records of the salary were under the control of the Thripati. He has forged the signature of the complainant along with the stamp of the amount received and collected for the arrears of the complainant’s salary, and the date of the disbursement is not mentioned in the record. As per the averments of the complaint, the accused has committed the offences of cheating, forgery, and misappropriating the amount due to the complainant. The 1st Additional Chief Judicial Magistrate granted the application despite the accused’s objections under Section 197 of the CrPC and dismissed the complainant’s complaint. Aggrieved by it, the complainant filed a revision petition before the hon’ble High Court of Allahabad.
Issues of the case
Whether fabrication of records and misappropriation with the records of the public done during the course of employment by the public servant would come under the discharge of the official duty of the public servant?
Contentions of the appellant’s counsel
The second respondent and the cashier fabricated and forged the salary records and forgery does not come under the discharging of the official duty of the public servant.
Contentions of the respondent’s counsel
The maintenance of the records is only the official duty of the respondent, and the preparation and payment are not the respondent’s duty. That is done only by the cashier, and the respondent has committed no offence.
Judgement
This does not fall under official duty. The performance of official duty under camouflage of public authority cannot be concealed to commit crime. If he is acquitted under Section 197 of the CrPC, the public duty may provide him with the possibility of committing a crime. The appeal was allowed by the Hon’ble Supreme Court, which dismissed the order given by the mMagistrate and directed the Magistrate to proceed with the case in accordance with the law and deal with the case on its merits.
Indra Devi v. State of Rajasthan and Another (2021)
Facts of the case
In this case, an FIR was filed against the public servants for alleged imperfections and irregularities at their command. This process was done without the prior sanction of the competent authority. A total of three members are alleged in this case. But, out of the three accused, two were given immunity under Section 197 of the CrPC. The remaining accused kept an application under Section 197 of the CrPC and that was dismissed by the trial court. The grounds for the dismissal are that the accused failed in his duties in describing the asymmetry to his superiors.
Aggrieved by the order, the respondent has filed the Crl. Misc. Petition before the Honourable High Court of Judicature at Jodhpur and that was allowed by the High Court. Aggrieved by the judgement of the High Court, the appeal is filed before the Supreme Court of India.
The examination of the Court in the given case is as follows:
- Section 197 of the CrPC is to shield the public officers who are executing their duties with good faith, not the corrupted public servants.
- Whether the acts of the accused come under the scope of discharge of official duty.
- The other public servants are shielded under Section 197 of the CrPC, so why was his application dismissed by the trial court?
Issues of the case
- Does the accused have a chance to get protected under Section 197 of the CrPC?
- Do the acts done by the accused fall under the purview of the discharging of the official duty?
Contentions of the appellant
The fabrication of records does not come under the purview of the discharging of official duty and respondent no. 2 is in collusion with the executive officer and Megharam in the fabrication of records. Fabrication of records is not discharging official duty and the respondent does not get immunity under Section 197 of the CrPC.
Contentions of the respondent
The name of respondent no. 2 was not mentioned in the FIR and was mentioned as the concerned clerk and respondent no. 2 has done his duty by obeying official orders so he can get immunity under Section 197 of the CrPC.
Judgement
After observing the facts and situations of the case, the Honourable Supreme Court held that sanction is required before initiating the proceedings against the public servants.
The public servants and the judges work for the welfare of the public and society, and such people should work properly, which means they should be given similar security while discharging their official duty with good faith. Other than this clause, it amounts to the implementation of the prosecution. Under Section 197 of the Criminal Procedure Code, public servants are protected from the intentional false accusations and dishonour of a public servant, and they are treated as a special category to protect from hostile or frustrated prosecution; the same cannot be treated as a shield to protect corrupt officials.
What is the time limit for the sanction under Section 197 of the CrPC?
The Karnataka High Court has said that the competent authorities shall decide the case within six months after receiving the request from the investigating agencies under Section 197 of the CrPC for the prosecution of public servants.
Do Public Sector Undertakings come under the purview of Section 197 of the CrPC?
The public sector undertakings do not come under the purview of Section 197 of the CrPC, according to the verdict in BSNL v. Pramod Samant (2019).
What is the difference between Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act, 1988?
Section 197 of the CrPC defines the prosecution of judges and public servants, whereas Section 19 of the Prevention of Corruption Act, 1988 defines that the sanction is required only when the offence is punishable under Sections 7, 10, 11, 13, and 15 of the PC Act, 1988.
Is sanction mandatory for Public Servants?
It is not mandatory for the offences committed in cases of crime under the Indian Penal Code. But the sanction is mandatory to obtain for the prosecution of a public servant for the offences committed under the PC Act, 1988.
Is a sanction required for the prosecution of the minister after his resignation?
Sanction is required for the prosecution of a minister under Section 19 of the Prevention of Corruption Act, 1988, as long as he continues as a minister. But, after his resignation, no need for sanction was required, according to the judgement of M.P. Special Police Establishment v. State of M.P. & Other (2004).
Is sanction required against retired public servants?
No sanction is required for the prosecution of the retired public servants because their public official duties have expired. So, he can’t get the benefit under Section 197 of the CrPC.
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