Taking Cognizance Of Offences Against Public Servants Without Sanction Under S.197 CrPC Bad In Law: Kerala High Court Reiterates

The Kerala High Court on Wednesday held that it was necessary to obtain sanction under Section 197 of the Code of Criminal Procedure for prosecution against public servants, and that cognizance of the offences taken against them without such sanction was bad in law. 

Justice R Narayana Pisharadi while ruling so, dismissed a couple of revision petitions filed by the Central Bureau of Investigation (CBI) challenging the order of Special CBI Judge allowing applications for discharge filed by two accused in a criminal case. 

Factual Background:

The Directorate of Education of Lakshadweep had directed to supply ready-made uniforms to school children in the academic year 2005-06 free of cost.

A committee, called the Uniform Tender Evaluation, Sample Selection and Procurement Committee consisting of five individuals, was formed for the evaluation and finalisation of the tenders submitted for the supply of readymade uniforms.

However, pursuant to a conspiracy hatched by the members of this committee, sub-standard uniforms were purchased and false and forged entries were made on record, thereby violating the tender conditions.

The committee members conspired with the other private persons doing textile business and a tailoring instructor to obtain wrongful gain for themselves in purchasing sub-standard materials and causing wrongful loss to the Lakshadweep Administration.

Subsequently, one of the conspirators turned to be an approver. 

Thereafter, two of the accused, namely, accused 4 and 8, filed applications for discharge before the Special Court under Section 239 of CrPC. Although these were dismissed initially, after the interference of the High Court, they were considered afresh. 

Accordingly, in the light of the contention raised by the applicants that sanction under Section 197 was necessary to prosecute them, the Special Court held that the prosecution against them was bad for want of such sanction. 

Aggrieved by this Order, the CBI preferred a revision petition before the Bench assailing their discharge.

 Key Findings:

The Court initially analysed the provision of Section 197 of the Code. Then it recalled a few judicial precedents concerning the provision. 

Accordingly, reliance was placed on Amrik Singh v. State of Pepsu [AIR 1955 SC 309] where it was held as follows:

"If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."  

This position was reiterated in several other judgements, particularly in D.Devaraja v. Owais Sabeer Hussain [AIR 2020 SC 3292]. 

In the present case, it was observed that both the accused were members of the impugned committee by virtue of the offices held by them. 

To decide whether sanction under Section 197 as alleged by the accused was warranted in the matter, the Court found it imperative to consider their roles in the commission of offences. 

The primary allegation levelled against both of them was that they blindly accepted the certificate issued without inspecting the uniform materials, consequent to which the sub-standard materials were purchased. 

As per the Order issued by the Special Court, both of them did not have expertise in the matter of quality control or checking the standards of stitching or clothes supplied. 

The Bench observed that the prosecution failed to prove that the accused were experts in the field to assess the quality of dress materials.

"Negligence on the part of these accused, who were not experts in the field, in accepting the certificate issued by the technical member of the committee would not take them out of the protection under Section 197(1) of the Code, which is otherwise available to them." 

Therefore, the Court ruled that it cannot be found that their actions had no reasonable connection with their official duties.

On the aforesaid ground, while finding no merit in the revision petitions, the Single Judge held as follows:

"Therefore, it was necessary to obtain sanction under Section 197 of the Code for prosecution against them. Cognizance of the offences taken against them, without such sanction, was bad in law." 

Case Title: State v. Syed Shaikoya

Click Here To Read/ Download The Order