Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-I]

A. I N T R O D U C T I O N

Section 197 Cr.P.C. has been enacted for affording some protection to “public servants” including Judges and Magistrates. In the case of Judges and Magistrates, they have to function without any fear or favour, affection or ill will. As long as they act bona fide, they need protection for fearlessly administering justice and any person dissatisfied with their verdicts cannot straightaway prosecute them for the judgment which may not be either palatable or to their liking. Similarly, a “public servant” may have several enemies most of whom will be those disgruntled elements who were not able to get official favours from the “public servants”. The “public servants” also cannot show illegal favours to whosoever who may approach him. Such disgruntled elements may be waiting for an opportunity to launch frivolous or vexatious prosecutions against such unobliging “public servants”. That explains the protection under Section 197 Cr.P.C. afforded to “public servants” who are amenable to Government control.

2. Section 197 Cr.P.C. reads as follows:

“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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013

(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;

(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:

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.

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, sSection 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376AB, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 509 of the Indian Penal Code (45 of 1860)

(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 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.

(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 under clause (1) 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 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.

(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.

B. The object of prosecution sanction under Section 197 Cr.P.C.

3. The object of prosecution sanction is to save “public servants” from frivolous and vexatious prosecution. (Vide Afzalur Rahman v. King Emperor, AIR 1943 PC 18 – Agarwala, Varma - JJ; R. R. Chari v. State of U.P. 1962 KHC 615 : AIR 1962 SC 1573 - P. B. Gajendragadkar, K. N. Wanchoo -JJ.)

A Constitution Bench of the Supreme Court in para 15 of Matajog Dobey v. H.C. Bahari 1956 KHC 365 : AIR 1956 SC 44 - S. R. Das - Ag. C. J., Vivian Bose, B. Jagannadhadas, S. J. Imam, N. Chandrasekhara Aiyar – JJ, observed as follows :

“...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.………. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction...” (The above observation has been reiterated in paragraph 32 of D. Devaraja v. Owais Sabeer Hussain 2020 KHC 6425 : (2020) 7 SCC 695 - R. Banumathi, Indira Banerjee – JJ.)

In para 4 of Bhagwan Prasad Srivastava v. N. P. Mishra AIR 1970 SC 1661 = (1970) 2 SCC 56 – A. N. Ray, I. D. Dua – JJ, it is observed as follows:-

“The object and purpose underlying this Section is to afford protection to public servants against “frivolous”, “vexatious” or “false” prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The larger interest of efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. This Section is designed to facilitate effective and unhampered performance of their official duty by public servant by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognizance of the cases against them by the Courts. It is neither to be too narrowly construed nor too widely. The narrow and pedantic construction may render it otiose for it is no part of an official duty -- and never can be -- to commit an offence. In our view, it is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional set up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary Courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition, is above the law and every official from the highest down to the lowest is under the same responsibility for every act done without legal justification as any other citizen. In construing S.197, Cr. P. C., therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties.”

(Emphasis supplied by me)

Again in Devaraja the Apex Court extracted the following observation by Pukhraj v. State of Rajasthan and Another 1973 KHC 627 : (1973) 2 SCC 701 - H. R. Khanna, A. Alagiriswami - JJ.)

“2. While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed.” (Emphasis supplied by me)

The object of Section 197 Cr.P.C. is to protect responsible public servants against vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. (Vide para 9 of Centre for Public Interest Litigation v. Union of India 2005 KHC 1851 : (2005) 8 SCC 202 : AIR 2005 SC 4413 - 3 Judges – Ruma Pal, Arijit Pasayat, C. K. Thakker – JJ.)

The underlying object of Section 197 Cr.P.C. is to enable the authorities to scrutinise the allegations made against a “public servant” to shield him/her against “frivolous”, “vexatious” or “false” prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered dehors the duties which a public servant is required to perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned. (Vide Chaudhury Parveen Sultana v. State of W. B. (2009) 3 SCC 398 – Altamas Kabir, Markandey Katju – JJ.)

The provisions in the CrPC and the PC Act regarding the prosecution sanction are designed as a check on “frivolous”, “mischievous” and “unscrupulous” attempts to prosecute an honest public servant (Vide para 4 of State of Bihar v. Rajmangal Ram 2014 KHC 4208 : (2014) 11 SCC 388 : 2014 (2) KHC SN 24 : 2014 (1) KLD 617 - P. Sathasivam - C. J., Ranjan Gogoi - JJ.).

The provision for sanction is to ensure immunity from “irresponsible”, “frivolous” and “vexatious” prosecution (Vide Lakshmansingh Himatsingh Vaghela (Dr.) v. Naresh Kumar Chandrashankar Jah 1990 KHC 541 : (1990) 4 SCC 169 : AIR 1990 SC 1976- 3 Judges – Dr. T. Kochu Thommen, Kuldip Singh, Fathima Beevi - JJ.)

C. The effect of absence of a “prosecution sanction” or an invalid “prosecution sanction”

4. Trial without a valid prosecution sanction is a trial without jurisdiction and is a “nullity” and is non est. (Vide para 9 of Basdeo Agarwalla v. Emperor AIR 1945 FC 16 – Patrick Spens K.T. – CJ; Para 16 of Yusofally Mulla Noorbhoy v. King AIR 1949 PC 264 – Sir John Beaumont, (Basudeo Agarwalla - Supra – AIR 1945 FC 16) approved.)

A trial without a valid sanction where one is necessary, is a “trial without jurisdiction” rendering the proceedings void ab initio. (See R. R. Chari v. State of U.P., (1963 (1) SCR 121 : AIR 1962 SC 1573 – P. B. Gajendragadkar, K. N. Wanchoo – JJ and S. N. Bose v. State of Bihar AIR 1968 SC 1292 - G. K. Mitter, K. S. Hegde - JJ.; Mohd. Iqbal Ahmed v. State of A. P. AIR 1979 SC 677 - S. Murtaza Fazl Ali, A. D. Koshal - JJ; Para 19 of R. S. Nayak v. A. R. Antulay AIR 1984 SC 684 = (1984) 2 SCC 183 - D. A. Desai, R. S. Pathak, O. Chinnappa Reddy, A. P. Sen, V. Balakrishna Eradi - JJ.)

D. Protection under Section 197 CrPC not available to “public servants” who are not employees of either the Central Government or the State Governments

5. The protection under Section 197(1) CrPC is not available to “public servants” who are not employees of either the Central Government or the State Governments.

E. The authorities competent to grant prosecution sanction under Section 197 Cr.P.C.

6. The Central Government and State Government alone are the authorities competent to grant prosecution sanction under Section 197(1) CrPC But, under Section 19(1) of PC Act, 1988, besides the Central Government and State Government, “an authority competent to remove the public servant from his office” is also entitled to grant prosecution sanction.