Sanction for Prosecution ; In my view, George Vs. State of Kerala – 2015(3) KLT 219 does not lay down the correct law

THE  FACTS LEADING TO THE ACQUITTAL

The case which came up for consideration before the Hon’ble High Court of Kerala, was an appeal against the conviction entered and sentence passed against the appellant ( a U.D.Clerk in the Town Employment Exchange, Pala) by the Enquiry Commissioner and Special Judge, Thrissur ( “Special Judge” fort short) for offences under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (“ P.C. Act” for short) and Sections 409, 465, 471 and 477-A of the Indian Penal Code, 1860 (“I.P.C.” for short).

2. The case of the prosecution was that on 23-01-1990 and on 15-01-1991 the accused/appellant while working as a U.D.Clerk in the aforesaid office had misappropriated a total amount of Rs. 4080/- by committing criminal breach of trust, using forged documents and by falsification of accounts.


3. The accused was found guilty of all the offences charged and appropriate sentence was also imposed on him by the Special Judge. It was the said conviction which was assailed by the accused in the appeal filed before the Hon’ble High Court of Kerala.

4. Accepting the arguments of the accused/appellant the learned Judge, as far as I could comprehend, held as follows:-


5. i) The prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences (Section 465 and 471 IPC) and also for the reason that the trial court did not exercise its power of condoning the delay under Section 473 Cr.PC before taking cognizance. (Judgment – para 17).


6. ii) The prosecution should fail for want of prosecution sanction under Section 197 Cr.PC in relation to the offences under the IPC, namely, Sections 409, 465, 471 and 477-A because the power given to the Director of Employment to remove the appellant from his office is only as an agent or delegate of the Government and therefore the appellant must be deemed to be removable only by or with the sanction of the Government. (Judgment – paras 24,25 and 27)

iii)  The prosecution is bad for not obtaining proper prosecution sanction  by the authority competent to grant sanction under Section 19 of the P.C.Act since the authority delegated  as the sanctioning authority by the Governor was the Secretary of Vigilance Department and not the Director of Employment although the said Director is the appointing authority as well as the authority competent  to remove the accused from his office. (Judgment – para 24, 25 and 27)

1. iv) The decision in George Vs. State of Kerala – 2004 (2) KLT 369 in the writ petition filed by the appellant challenging the want of prosecution sanction under Sec 197 Cr.P.C., has been rendered disregarding the legal and constitutional provisions and is without jurisdiction  and a nullity besides being  per incurium and is therefore,  not binding. (Judgment – paras 20,21,24,25 and 26).


2. v) The inordinate delay in the investigation and the illegality in the investigation coupled with the rigmarole of trial have violated the appellants’ fundamental right to get a fair trial guaranteed by Article 21 of the Constitution of India. (Judgment – paras 28 and 29).

The conviction entered and the sentence passed by the Special Judge was accordingly set aside and the appellant/accused was acquitted of all the offences charged against him.

MY COMMENTS

5. The bar of limitation alleged. The bar of limitation and that too only for offences punishable with imprisonment upto 3 years, was introduced for the first time only in the present Cr.PC. None of the earlier Codes of Criminal Procedure contained any such provision.  The general  rule of criminal justice is that   “ a crime never dies”.  This is reflected in the maxim “ nullum tempus aut locus occurrit regi”   (Lapse of time is no bar to the crown in proceeding against offenders).  This is because a criminal offence is considered as a wrong against the State and the society eventhough it has been  committed against an individual.  It is by way of an exception to the above rule that the law of limitation was, for the first time, introduced in the present Cr.PC but only for relatively minor offences.  The justification is that no person should be kept under  continuous apprehension that he can be prosecuted at “any time” for “any crime” irrespective of the nature or seriousness of the offence.  (Vide Japani Sahoo Vs. Chandrasekhar Mohanty (2007) l7 SCC 394 = AIR 2007 SC 2762)   In the case on hand,  the offences with which the accused/appellant was charged, were Section  409 IPC (punishable with imprisonment for life or imprisonment for 10 years and fine); Section 465 IPC (punishable with imprisonment upto 2 years); Section 471 IPC (punishable with imprisonment upto 2 years) and Section 477-A IPC (punishable with imprisonment for 7 years) and Section 13(1)(c) read with Section 13(2) of the P.C. Act (punishable at the relevant time with imprisonment upto 7 years).  By virtue of sub-section (3) of Section 468 Cr.PC, the period of limitation, in relation to offences which may be tried together (as in this case), is to be  determined with reference to the offence which is punishable with the most severe punishment.   In the present case, the offence under Section 409 IPC is the one which is punishable with the most severe punishment which is imprisonment for life or imprisonment for 10 years and fine.  Under Section 468 Cr.PC read with Section 469 Cr.P.C. the maximum period of limitation is only 3 years from the date of commission of the offence for offences punishable with imprisonment not exceeding 3 years.  If so, by virtue of the inclusion of the offence under Section 409 IPC which is punishable with the most severe punishment far exceeding 3 years, there cannot be any limitation for any of the offences which are tried jointly with the offence under Section 409 IPC (Vide State of H.P.  Vs. Tara Dutt – AIR  2000 S.C. 297;  Radhakrishnan P.R. and Another  Vs. State of Kerala and Another – 2012 (3) KLT 88; Rameshwar Vs. Rajeshwar Prasad Sahu – 2010 Crl. LJ 361;  Bhart Lal Vs. Top Singh – 1995 Crl. LJ 3545; Harman Singh Vs. Everest Construction Co-2004 Crl.  L.J. 4178; Sri. Balaji Traders  Vs. State – 1990 Crl. LJ 332; Raman Gowda  Vs. The Registrar (Vigilance), High Court of Karnataka – 2006 Crl. LJ 1839).  What the Court has to examine is the nature of the  offence which the accused was charged with and not the nature of the offence for which the accused is eventually convicted.  (Vide State of H.P.  Vs. Tara Dutt – AIR 2000 SC 297).  This is something analogous to Section 155(4) Cr.PC where a case involving non-cognizable offences along with at least one cognisable offence, is to be treated as a cognizable case for the purpose of investigation.  In fact, it was after observing correctly towards the end of paragraph 8 of the verdict in question to the effect that if the offence alleged against the accused is punishable with imprisonment exceeding  3 years, there is no period of limitation for the prosecution, that the learned Judge fell into an error by concluding in paragraph 17 as under:-

“Therefore, I am of the view that the prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences and also for the reason that the Trial Court did not exercise its power under S. 473 Cr.P.C. before taking cognizance.”

Such a conclusion was legally impermissible.

Absence of prosecution sanction under Section 197 Cr.P.C.

6. With regard to the offences under Sections 409, 465, 471 and 477A IPC, the learned Judge has concluded in paragraph 27 of the verdict in question that absence of a prosecution sanction under Section 197 Cr.PC is fatal.  Admittedly, the accused /appellant is a public servant.  The question of obtaining prosecution sanction will arise only if such public servant of the nature referred to in Section 197(1) Cr.PC committed the offences while acting or purporting to act in the discharge of his official duty.  There is a whole line of precedential authority to the effect that committing the aforementioned  offences cannot constitute acts done in the performance of the official duty of a public servant.  In State of H.P.  Vs. M.P. Gupta – (2004) 2 SCC 349 = AIR 2004 SC 730, it was held by the Apex Court that it was  no part of the official duty of a public servant to commit offences punishable under Section 467, 468 and 471 IPC and, therefore, there was no need for any sanction  to prosecute the public servant.  Again it has been held that sanction for prosecuting a public servant for offences punishable under Sections 409 and 468 IPC is not required since those offences cannot be committed in discharge of official duty. (Vide State of U.P.  Vs. Paras Nath Singh – (2009) 6 SCC  372 – 3 Judges; Prakash Singh Badal Vs. State of Punjab (2007) 1 SCC 1 = AIR 2007 SC 1275; Bholu Ram Vs. State of Punjab (2008) 9 SCC 140).  If so, no prosecution sanction under Section 197 Cr.P.C. is required to be obtained for prosecuting a public servant for the aforementioned offences.  (Here the humble personal view of this author is that it is only when the public servant exceeds his lawful authority and commits an offence that the question of prosecuting  him for such offences will arise and it is only for such prosecution that the sanction of the authority competent to grant sanction, is required.  Vide Padmarajan C.V.  Vs. Government of Kerala  and Others – 2009 (1) KHC  65 = 2009(1) KHC 65 = ILR 2009 (1) Kerala 36 – para 12. But personal views  of mortals like the author should definitely yield to the authority of binding judicial  precedents, particularly of the Apex Court by the force of Article 141 of the Constitution of India).  If so, the absence of sanction to prosecute the accused for the IPC offences, was not fatal.

The accused public servant whether removable from his office by or with the sanction of the Government?

7. If sanction to prosecute the appellant under Section 197 Cr.PC with regard to the IPC offences is not necessary at all, then the further question as to whether he is removable from office by or with the sanction of the Government, is purely academic. But with regard to the offence under Section 13(1)(c) of the P.C. Act, this question is relevant  since clause (b) of Sec. 19(1) P.C. Act is  somewhat pari materia with clause (b) of Section 197(1) Cr.P.C. The verdict in question has devoted much space for evaluating the argument of the accused in this behalf. In paragraph 24 (at page 237 of the KLT) of the judgment, the learned Judge has found that the appointing authority of the appellant who is a Government servant, is the Director of Employment.  The discussion proceeds to hold that as per the delegation made under Rule 9 of the Kerala Civil Services ( Classification, Control and Appeal) Rules falling under  Section 3 of the Public Services Act which in turn is subservient to Article 309 of the Constitution of India, the Director of Employment is the appointing authority of the appellant. It is further found that the accused is removable  from his office also by the said Director.   It was the very same Director who issued Ext. P64 order of sanction under Section 19 of the P.C. Act.  The Director who issued the sanction order was examined as PW 20 also. If so, can it be said that the appellant is removable from office by the Government or with the sanction of the Government?  Who else, other than the Director, is the authority competent to grant the prosecution sanction under Section 19(1)(b) of P.C. Act.?  When the appellant is not removable from office by or with the sanction of the Government, but instead is removable from office only by the Director of Employment, there was no need for prosecution sanction under Section 197 CrPC.  Both Section 197 Cr.PC as well as Section 19 of the P.C. Act, draw a line between public  servants of various classes.  When some lower authority is by law, or rule or order, empowered to remove a public servant, then such public servant cannot be said to be one removable by or with the sanction of the Government.  (Vide Nirendra Natha Sarkar Vs. State of Assam – (1985) Crl. LJ . Noc 21 (Gauhati) ;  Sakuntala Bai  Vs. Venkatakrishna Reddy – 1952 Crl. L.J. 1295 (Madras); Pichai Pillai Vs.  Balasundara Mudaly – AIR 1935 Madras 442= 58 Mad. 787.

The following passage in the judgment in question occurring  towards the bottom of page 236 and the beginning of page 237(of KLT) indicates the reasoning put forward on behalf of the appellant and upheld by the learned Judge:

“The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi judicial acts; provided those rules conform to the principles of judicial procedure.  It is therefore clear that the words “State Government” does not mean the Governor himself, but includes his delegates either under a valid law or under Article 154(1) read with 166(3) of the Constitution of India.  Learned counsel therefore contended that as per the ratio in the above decision (Gullapalli Nageswara Rao & Ors. Vs. A.P.State Road Transport Corporation & Anr. – AIR 1959 SC 308), a Government employee removable by the Governor or his delegates as per the above said provisions will come within the definition of the Government  servant removable by the  Government for the purpose of Section 197(1) Cr.P.C.  The contention raised by the Counsel is legally sound and therefore I am inclined to accept it. “

With due respect, it was precisely  such an identical contention which was repelled by the Federal Court way back in the year 1943 in Afzalur Rahman and Others Vs. Emperor – AIR 1943 F.C. 18 while dealing with the section 197 of the Code of Criminal Procedure, 1898, which corresponds to Sec. 197 Cr.P.C.  The Federal Court, in this connection, took judicial notice of the fact that Section  197, in one form or the other, had appeared in successive Codes of Criminal Procedure for more than 70 years then and hence the provision should be interpreted in the light of certain well known features of the administrative system prevailing in India.  Adverting inter alia to the verdict  of the Madras High Court in Pichai Pillai Vs. Balasuundara Mudali – AIR 1935 Madras 442, the Federal Court observed that rules and regulations had been framed by the provincial Governments dividing the superior and subordinate services into various classes and empowering  different authorities to appoint and dismiss officers of the different classes.  The Federal Court further observed that such rules and regulations had all along provided that certain superior class of officers can be dismissed only by or with the sanction of the local Government and it is to this class of officers that the Legislature intended to limit the protection given by Section 197.  The Federal Court consciously refrained from applying the maxim “ Qui facit per alium facit per se”  ( a person who acts through another acts himself) in such situations. Once this distinction is understood, there will be no warrant for an argument of the type advanced before the learned Judge without adequate research.  In Nagraj Vs. State of Mysore – AIR 1964 S.C. 269 it was argued before a three-Judge Bench of the Supreme Court that the accused Sub Inspector of Police  could be dismissed from service only by the State Government and, therefore, sanction under Section 197 CrPC was necessary for his prosecution for the offences  purported to have been committed in the discharge of his duty.  The said argument did not find favour with the Supreme Court  which held that since an Inspector General of Police could dismiss a Sub Inspector of Police, the latter could not be said to be a public servant not removable from his office save by or with the sanction of the Government so as to insist that sanction  of the State Government was necessary for prosecuting the Sub Inspector even if he had committed the offence alleged while acting or purporting to act in the discharge of his official duty. To the same effect is the decision of the Punjab and Haryana High Court in Sant Kumar  Vs.  State of Punjab  - 2003 Crl. L.J. 2949 .  Such being the legal position, the contention urged and upheld in this behalf, was wholly unsustainable.

Whether the delegated authority competent to grant prosecution sanction is the Director of Employment or the Secretary, Vigilance Department?

8. In paragraph 24 of the judgment in question reference is made to the submission by the appellants’ counsel that the power under Section 197 (1) (b) Cr.PC was delegated to the Secretary, Vigilance Department by the Governor under Article 166 of the Constitution of India. No order to that effect appears to have been produced before the Hon’ble High Court.  From the aforementioned submission, the learned Judge would straightaway conclude that PW20 (the Director of Employment)  was, therefore, not authorised to grant sanction under Section 197 Cr.PC as a delegate of the Governor as on the date of Ext. P64 sanction  order.  The judgment is not clear whether the appellants’ argument was that with the empowerment of the Secretary, Vigilance Department, under Section 197 (1) (b) Cr PC by the Governor, the Director of Employment was stripped of his power to grant prosecution sanction.  It has already been seen that sanction for prosecuting the appellant under Section 197 Cr.P.C. was not necessary. With regard to the offence under Section 13(1)(c) and punishable under Section 13(2) of the P.C. Act, prosecution sanction has been granted by the Director under Section 19 of the P.C. Act.   Since the appellant was not removable from office by or with the sanction of the Government within the meaning of Section 19(1)(b) of the P.C. Act, it was sufficient that the prosecution sanction was granted by the Director as provided under Section 19(1)(c) of P.C. Act.

9. Now, the further question is whether it was the Director of Employment or the Secretary of Vigilance Department, who was competent to grant sanction under Section 19(1) C of the P.C.Act.  The appellant’s argument that it was the Secretary of Vigilance Department who was the authority competent to grant prosecution sanction under Section 19 of P.C. Act, presumably  stems from G.O.(Ms) 169/94/GAD dated 23-4-1994 as per which the Vigilance Department was inter alia invested with the power of issuing orders sanctioning prosecution of a public servant under the Cr.P.C. and the P.C. Act. Corresponding amendment to the duties and functions of the Vigilance Department which is serial No. XXXVI in the First Schedule to the Rules of Business of the Government of Kerala framed by the Governor under Article 166(2) and (3) of the Constitution of India, was incorporated as item 8 at page 69 of the said Rules.  The above investiture is only with regard to those public servants who are removable by or with the sanction of the Government.  In fact, at present it is the Vigilance Secretary and not the Administrative Secretary concerned, who is issuing orders of prosecution sanction both under Section 197 Cr.P.C. and Section 19 of the P.C. Act in relation to public servants who are removable by or with the sanction of the Government. This has nothing to do with the issuance of prosecution sanction under Section 19(1)(c) of the P.C.Act regarding public servants like the appellant who are not liable to be removed from office by or with the sanction of the Government.  Hence  the prosecution sanction given by the Director of Employment is perfectly valid.

The impact of the writ petition and appeal filed by the accused.

10. After the Special Judge took cognizance of the aforementioned offences, the accused/appellant filed a writ petition  (O.P.No. 10181 of 1999) before the Hon’ble High Court of Kerala seeking  to quash the F.I.R. on the ground that since he is a public servant not removable from office save by or with the sanction of the Government, sanction to prosecute him under Section 197 Cr.P.C. was a condition  precedent for prosecuting him. Mr. Justice J.B. Koshy after a detailed analysis of the legal provisions as well as the case law on the point held that the appointing authority of the accused was the Director of Employment and the accused was liable to be removed from his post also by the same officer under the Civil Services (Classification, Control and Appeal) Rules and, therefore,  the accused is not a public servant not removable from his office save by or with the sanction of the Government  within the meaning of Section 197 Cr.P.C.  Consequently, it was held that Section 197 Cr.P.C. was not attracted so as to warrant a sanction to prosecute  the accused under that section.  The writ petition was dismissed on 21-03-2000.  Aggrieved by the decision of the learned Single Judge, the accused/appellant filed a writ appeal (W.A.No. 925 of 2000) before the Hon’ble High Court. The Division Bench speaking through Mr. Justice K.A. Abdul Gafoor affirmed the view taken by the learned Single Judge and dismissed the writ appeal on 13-02-2004.  The decision of the Division Bench has been reported in George Vs. State of Kerala – 2004 (2) KLT 369.  The accused /appellant having assailed the prosecution proceedings against him on the ground of absence of prosecution sanction under Section 197 (1)(b) Cr.P.C. and want of proper sanction under Section 19 (1)(b) of the P.C.Act and having suffered an adverse verdict at the hands of  the Hon’ble Judges who were well versed in service  law as well, was estopped from  turning round and assailing those verdicts as illegal and passed without jurisdiction and rendered per incurium. Strangely enough, with a view to circumvent the above adverse verdicts, the accused/appellant who contended that the principles of res judicata and constructive res judicata are not applicable  to criminal proceedings, placed reliance upon Ashok Leyland’s case to contend that a jurisdictional question, if wrongly decided, would not attract the principles of res judicata.  If, committing the specified offences under the IPC is not part of the official duty of a public servant so as to warrant prosecution sanction under Section 197 Cr.P.C. and if the said provision is not attracted also  for the reason that the accused is not removable from his office by or with the sanction of the Government, where is the question of any jurisdictional error in the adverse verdicts suffered by the accused so as to avoid those verdicts?.  The attempt made by the accused to place reliance upon the decision of the Constitution Bench in Gullapalli Nageshwara Rao’s case to contend for the position that the Governor through  his delegates can also perform such quasi judicial acts, was also wholly misplaced.  Granting or refusing prosecution sanction is an administrative act and not a quasi judicial one.  Hence the order granting or refusing sanction is a mere executive order.  ( Vide State of Maharashtra  Vs. P.P. Sharma – (1992) Supp (1) SCC 222;  A Veeraswamy  Vs. Union of India – (1991) 3 SCC 655;  State of Maharashtra Vs. Ishwar Piraji Kalpatri – (1996) 1 SCC 542;   T.M. Jacob Vs. State of Kerala – 1999 (2) KLT 161.  When the final verdict in the writ petition filed by the accused went against him, he thought it convenient to disown the verdict and collaterally attack the same. 

Delay affecting the constitutional rights of the Appellant

11. One of the contentions  raised and upheld under this head is that as against Section 17(c) of the P.C.Act which mandates that the investigation of the case shall be conducted by a Police Officer of the rank of a DySP, the investigation was conducted by PWS  27 and 28 both of whom were of the rank of Inspector of Police and no order authorising them to conduct the investigation was produced.  According to the appellant besides the above illegality, the long drawn out investigation with unjustifiable delay has affected the right of the appellant to get a fair trial.  The aforesaid illegality alleged by the appellant could not have been countenanced in view of the settled legal position  that any infirmity in the investigation cannot affect the jurisdiction of the Court to take cognizance of the case and proceed to trial unless the objection in that regard was raised at the earliest opportunity. To put it differently, any defect or illegality in the investigation, however serious, has no direct bearing on the cognizance of the case or its trial. (Vide H.N. Rishbud Vs. State of Delhi – AIR 1955 SC 196; Mobarik Ali Ahmed Vs. State of Bombay – AIR 1957 SC 857;  Din Dayal Sharma Vs. State of U.P. – AIR 1959 SC 831; E.G. Barsay Vs. State of Bombay – AIR 1961 SC 1762; Munna Lal Vs. State of U.P. – AIR 1964 SC 28;  State of A.P. Vs. N. Venugopal – AIR 1964 SC 33; M.C. Sulkunte Vs. State of Mysore – AIR 1971 SC 508;  State of A.P. Vs. P.V.Narayana  - AIR 1970 SC 811; Khandu Sonu Dhobi  Vs. State of Maharashtra – AIR 1972 SC 958; A.C.Sharma Vs. Delhi Administration – AIR 1973 SC 913; Durga Dass Vs. State of H.P. – AIR 1973 SC 1379; Nanak Chand Vs. State of H.P – AIR 1974 SC 765).  The appellant not only did not raise any objection in this regard at the earliest opportunity but also did not voice his grievance in this regard in the writ petition  and writ appeal filed by him after the Special Judge had taken cognizance of the offence.


12. The appellant who had moved the High Court in the year 1999 and who was assailing the alleged illegality of absence of prosecution sanction until his writ appeal was dismissed by the High Court on 13-2-2004, cannot be heard to say that the delay in the trial had infringed his fundamental right of fair or speedy trial. He alone  is responsible for the delay, if any.


13. In paragraph 29 of the verdict in question there is an omnibus statement that the oral and documentary evidence do not establish the guilt of the appellant. What exactly is the evidence has not been discussed.  There is no re-appreciation of evidence attempted by the Court of first appeal.  It is further stated that the evidence, if analysed correctly, would show that the appellant cannot be blamed singly for the shortage of cash found out on inspection   The learned Judge dose not appear to have been taken through the oral and documentary evidence for a re-appraisal.  In such circumstances, the following observation of the Apex Court in State of H.P.  Vs. Tara Dutt – AIR 2000 SC  297 -  is most apposite:-

“ It has no doubt been indicated in the penultimate paragraph of the impugned  judgment that even on merits the offence under Sections 417 and 465 IPC has not been established but that was only a causal observation without application of mind and without consideration of the facts on record on the basis of which the learned Special Judge convicted the two respondents of the offence under Sections 417 and 465 of the Indian Penal Code.”

MY CONCLUSION

14. Based on the judicial interpretation given to Section 197 Cr.P.C. and Section 19 of the P.C. Act the following propositions of law can be considered to be well settled:-

• Unlike Section 19 of the P.C. Act, Section 197 Cr.P.C. contemplates prosecution sanction only by the State or Central Governments, as the case may be, if the other conditions of the said section are attracted and that too only in the case of a State or Central Government employee (other than a member of the Forces) answering the definition of “public servant”. Under Section 19(1)(c) prosecution sanction is necessary even in the case of a non-Government public servant and such sanction is to be granted by the authority competent to remove such public servant from his office.


• It is no part of the official duty of a public servant to commit offences such as those punishable under Sections 409,467,468, 471 IPC etc and for those offences no prosecution sanction under Section 197 Cr.P.C. is necessary. The “Explanation” incorporated in Section 197 (1) Cr.P.C. has statutorily added to the above list a few more offences involving sexual inpropriety.

• With regard to the other offences under the IPC, prosecution sanction under Section 197 Cr.P.C. is necessary even if the public servant has ceased to be such public servant provided the other conditions of Section 197 Cr.P.C. are satisfied. But under Section 19 of the P.C. Act, no sanction is necessary if the public servant is no more occupying the post which he allegedly abused. Similarly, if the public servant at the time of the court taking cognizance, is not holding the post which he allegedly abused but is holding another public office where also he may be a public servant, then also sanction under Section 19 of the P.C. Act is not necessary.

• Prosecution sanction by the State Government under Section 197 Cr.P.C. will be required in the case of a State Government servant only if –

• he is a public servant removable from his office either by the State Government or with the sanction of the State Government;   AND

• (i) he is employed in connection with the affairs of the State; OR


• (ii) he was, at the time of commission of the alleged offence, employed in connection with the affairs of the State; AND

• the alleged offences were committed by him while acting or purporting to act in the discharge of his official duty.

If as per the Rules and Regulations governing such Government servant, a lower officer of the Government has been invested with the power to appoint or remove such Government servant from office, then it cannot be said that such Government servant is removable by or with the sanction of the Government so as to necessitate a prosecution sanction by the State Government under Section 197 Cr.P.C.  The said provision does not, in such a case, contemplate a prosecution sanction by the delegated authority competent to remove such Government servant from his office unlike Section 19(1)(c) of the P.C. Act.

Similar criteria with necessary changes, will apply in the case of a Central Government servant.

What Prompted me

It is in my anxiety to see that a wrong judicial precedent does not fatally affect both pending and future cases, that I have strained so much as if I were sitting in appeal against the judgement. Counsel appearing before Courts also have some responsibility.  The Constitution Bench decision in Gullapalli Nageswara Rao’s case ( AIR 1959 SC 308) had been cited and quoted out of context to contend for the position that dismissal from service of a public servant  by a delegate of the Government amounts to dismissal  by the Government itself  requiring sanction under Section 197 Cr.P.C.  Similarly, both the appellant and his counsel had no qualms to disown the High Court verdicts which were invited by the appellant himself.  I consider it my duty to ensure that the subordinate Criminal Courts are not carried away by some of the sweeping observations  in the judgments of superior courts.  But with utmost respect I hasten to add that no sort of ill will is meant towards the learned Judge whom I hold in great esteem and affection.  After all, dispensation of justice by the Judges is a solemn function carried out in utmost good faith and errors may at times occur  quite unintentionally and that is why we have the correctional remedy by way of appeal, revision, review etc.

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act.

Read the Judgment here.