Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-4]

O. Authorities competent to accord sanction under Section 19 (1) of the Prevention of Corruption Act, 1988

16. The authorities competent to grant prosecution sanction under the P. C. Act, 1988 are –

(i) The Central Government in the case of a person who is employed in connection with the affairs of the Union and not removable from his office except by or with the sanction of the Central Government.

(ii) The State Government in the case of a person who is employed in connection with the affairs of a State and is not removable from his office except by or with the sanction of the State Government.

(iii) In the case of any other person, the authority competent to remove him from his office.

Governor of the State is the appropriate authority competent to grant sanction to prosecute the Chief Minister of a State. (vide J. Jayalalitha v. M. Chenna Reddy (1998) 8 SCC 601 – 3 Judges).

Minister of a State is a public servant entitled to the protection of Section 197 (1) Cr.P.C. and the word “Government” used in Section 197 (1) Cr.P.C. means “Governor” in the case of a Chief Minister or a Minister. (Vide R. Balakrishna Pillai v. State of Kerala (1996) 1 SCC 478 = AIR 1996 SC 901 - A. M. Ahmadi - CJI , S. C. Sen - J.)

While granting prosecution sanction the Governor has to act independently of or contrary to the advice of the Council of Ministers. (Vide M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788 -5 Judges - N. Santosh Hegde, S. N. Variava, B. P. Singh, H. K. Sema, S. B. Sinha - JJ.).

Until the Parliament makes suitable amendment to the P.C. Act, 1988, the Chairman of the Rajya Sabha or Speaker of the Lok Sabha, as the case may be, shall be the authority competent to grant sanction to prosecute an M.P. (vide paras 96 and 97 of P.V. Narasimha Rao v. State (CBI/SPE) (1998) 4 SCC 626 = AIR 1998 SC 2120 – 5 Judges- S. C. Agrawal, G. N. Ray, Dr. A. S. Anand, S. P. Bharucha, S. Rajendra Babu - JJ.)

The President of India is the authority competent to grant sanction for the prosecution of a Judge of the High Court of a State or the Supreme Court of India. (Vide paras 45, 48 and 61 of K. Veeraswamy v. Union of India (1991) 3 SCC 655 = 1991 KHC 1162 – 5 Judges – B. C. Ray, K. Jagannatha Shetty, L. M. Sharma, M. N. Venkatachaliah, J. S. Verma – JJ.)

P. Who is the sanctioning authority under Section 197 Cr.P.C. when the services of the employee public servant have been lent by the State Government either to another Government or to a non-Government body ?

17. Where the services of the employee public servant have been lent by the State Government to the Central Government and the offence has been committed while on deputation, it is the Central Government which alone can grant sanction under Section 197 Cr.P.C to prosecute the public servant. The question to be asked in this context is where is the public servant employed at the relevant time. If the offence is committed during his service under the borrowing Government, then that Government alone is competent to grant prosecution sanction under Section 197(1) Cr.P.C. (Vide para 19 of R.R Chari v. State of U.P AIR 1962 SC 1573 – P. B. Gajendragadkar, K. N. Wanchoo – JJ). But the position is different under Section 19 (1) of the P.C. Act, 1988 where the words “public servant not removable from his office save by or with the sanction of the Government” are separately provided in each of clauses (a) and (b) unlike Section 197 (1) Cr.P.C. were those words are common for both clauses (a) and (b) thereof. Since the words “employed in connection with the affairs of the Union or the State Government” occurring in clauses (a) and (b) of Section 19 (1) of P. C. Act, 1988 are separately provided, those words should be understood as “permanently employed” so as to comprehend that if the services of a person permanently employed with the State Government are lent to the Central Government temporarily, the sanction for prosecution is to be given by the State Government and vice versa, unlike Section 197 (1) Cr.P.C. were those words are common for both clauses (a) and (b) thereof. (Vide para 21 of R.R Chari v. State of U.P AIR 1962 SC 1573 – P. B. Gajendragadkar, K. N. Wanchoo – JJ; Para 19 of Gurbachan Singh v. State 1970 Cri.L.J. 674 = 1970 KHC 882 (Delhi) – Hardayal Hardy – J), where also it was held that if the services of the “Public Servant” permanently employed by the State Government have been loaned to the Central Government, the authority competent to remove the public servant from office would be the loaning Government and not the borrowing Government for any offence committed by him during his tenure with the borrowing Government.

In Lakshmansingh Himatsingh Vaghela (Dr.) v. Naresh Kumar Chandrashankar Jah (1990) 4 SCC 169 = AIR 1990 SC 1976 – 3 Judges - Dr. T. Kochu Thommen, Kuldip Singh, Fathima Beevi – JJ, the accused was employed as a Laboratory Officer by the Municipal Corporation. While holding that post, he was appointed as the Public Analyst under Section 8 of the Prevention of Food Adulteration Act, 1954 by the Government. The offences under Sections 465, 468 and 201 IPC were allegedly committed by him in his capacity as a Public Analyst. It was held that he is removable from the Office of the Laboratory Officer only by the Local Authority and not by the Government, that even if the Government removed him from the Office of the Public Analyst, that would not affect his office as Laboratory Officer which post was not a public post and, therefore, that he was not a public servant removable only by the State Government so as to insist on prosecution sanction. (Vide Lakshmansingh Himatsingh Vaghela (Dr.) v. Naresh Kumar Chandrashankar Jah (1990) 4 SCC 169 = AIR 1990 SC 1976 – 3 Judges - Dr. T. Kochu Thommen, Kuldip Singh, Fathima Beevi – JJ.)

Q. The necessity for sanction under Section 197 Cr.P.C. to prosecute a “civil servant” who commits an offence while on deputation to a co-operative society in which the Central Government holds 95 % shares

18. Prosecution sanction is not necessary since he is not an officer in the service or pay of the Government or of a local authority etc falling under Clause Twelve of Section 21 IPC and cannot be said to be employed in connection with the affairs of the State or the Union within the meaning of Section 197 Cr.P.C. (Vide S.S. Dhanoa v. Municipal Corporation, Delhi (1981) 3 SCC 431 = AIR 1981 SC 1395 - O. Chinnappa Reddy, A. P. Sen, Baharul Islam - JJ.)

R. The meaning of “independent application of mind by the sanctioning authority”

19. Order of sanction must be preceded by application of mind on the part of the appropriate sanctioning authority to the facts constituting the offence. If the complainant or the accused is able to demonstrate that the sanction order is suffering from non-application of mind, the same may be called in question before a competent Court of law. (Vide –

• Para 14 of Romesh Lal Jain v. Naginder Singh Rana -(2006) 1 SCC 294 = AIR 2006 SC 336 - S. B. Sinha, R. V. Raveendran - JJ;
• State of Karnataka v. Ameerjan - (2007) 11 SCC 273 - S. B. Sinha, Harjit Singh Bedi - JJ;
• para 3 of Mohd. Iqbal Ahmed v. State of Andhra Pradesh - AIR 1979 SC 677 - S. Murtaza Fazl Ali, A. D. Koshal - JJ;
• Para 13 of Ram Sagar Pandit (1964) 2 Cri.L.J. 65 (SC) – 4 Judges - S. Jafer Imam, K. Subba Rao, N. Rajagopala Ayyangar, J. R. Mudholkar - JJ.)

The application of mind by the appropriate Sanctioning Authority should be to the facts constituting the offence on which the proposed prosecution is to be based. What the Court has to examine is whether or not the Sanctioning Authority, at the time of giving sanction was aware of the facts constituting the offence and had applied its mind to the same. This could be proved in the Court by the prosecution in two ways, either

i) by producing the original sanction order which itself may contain the facts constituting the offence and the ground of satisfaction, or

ii) by producing evidence aliunde (from another source or from elsewhere) to show that the facts constituting the offence were placed before the sanctioning authority and the requisite satisfaction was arrived at with reference to those facts (Vide –

• Gokulchand Dwarakadas v. The King AIR 1948 PC 82 – John Beaumont – J;
• Paras 5 and 6 of Biswabhusan Naik v. State of Orissa AIR 1954 SC 359 – 3 Judges - Mehr Chand Mahajan – CJI, Vivian Bose, Ghulam Hasan - JJ;
• Madan Mohan Singh v. State of UP AIR 1954 SC 637 - B. K. Mukherjea, Vivian Bose, Ghulam Hasan - JJ;
• Para 13 of Ram Sagar Pandit v. State of Bihar (1964) 2 Cri.L.J. 65 (SC) – 4 Judges - S. Jafer Imam, K. Subba Rao, N. Rajagopala Ayyangar, J. R. Mudholkar - JJ;
• Para 17 of State of Rajasthan v. Tarachand Jain (1974) 3 SCC 72 = AIR 1973 SC 2131 - H. R. Khanna, I. D. Dua - JJ;
• Mohd. Iqubal Ahmed v. State of Andhra Pradesh (1979) 4 SCC 172 = AIR 1979 SC 677 - S. Murtaza Fazl Ali, A. D. Koshal - JJ;
• Ramesh Lal Jain v. Naginder Singh Rana (2006) 1 SCC 294 = AIR 2006 SC 336 - S. B. Sinha, R. V. Raveendran – JJ.)

Thus, in cases where the “facts constituting the offence” appear of the face of the sanction order, it is not necessary for the prosecution to adduce independent evidence to show that the relevant facts were placed before the sanctioning authority. (Vide para 60 of Mani K. v. Inspector of Police, Kochi 2016 KHC 106 = 2016 Cri.L.J 1644 (Kerala)-K. Ramakrishnan – J. Application of mind can be proved by the prosecution by producing the sanction order or by adducing further evidence on this aspect if the sanction order is silent in that behalf. (Vide para 74 of Mani .K v. Inspector of Police, Kochi 2016 KHC 106 = 2016 Cri.L.J 1644 (Kerala) – K. Ramakrishnan – J.)

Where the Sanctioning Authority had before it only the name of the accused and the clause under which sanction was accorded for prosecution of the accused, it was held that there was no evidence to show that the Sanctioning Authority had knowledge of the facts alleged to constitute the offence and that the sanction was, therefore, invalid. (Vide Gokulchand Dwarakadas Morarka v. The King AIR 1948 P.C 82= 1949 Cr.L.J. 261 – Sir John Beaumont – J.)

Order of sanction should not be construed in a pedantic manner. (Vide State of Karanataka v. Ameerjan – (2007) 11 SCC 273 - S. B. Sinha, Harjit Singh Bedi - JJ; Para 11 of State of Maharashtra v. Mahesh G. Jain – (2013) 8 SCC 119 - Dr. B. S. Chauhan, Dipak Misra - JJ.)

S. The duty of the “Investigating Officer” towards the “Sanctioning Authority” while applying for prosecution sanction

20. Prosecution must send to the Sanctioning Authority the entire relevant records including “FIR”, “disclosure statements”, “statements of witnesses”, “recovery memos”, “draft charge sheet” and “all other relevant material”. Records so sent should also contain material/document, if any, which may tilt the balance in favour of the accused and on the basis of which the competent authority may refuse sanction. Provisions regarding sanction must be observed with complete strictness keeping in mind the public interest on the one hand and the protection available to the accused on the other. (Vide CBI v. Ashok Kumar Aggarwal - AIR 2014 SC 827 - Dr. B. S. Chauhan, S. A. Bobde - JJ.)

Sanction held valid in a case where the sanctioning authority had before it only the FIR and a detailed letter of Superintendent of Police containing all the facts and circumstances of the case as revealed by the investigation and the order of the sanctioning authority showing that sanction was given after considering all the facts disclosed in the aforesaid two documents. The defence argument that all the relevant facts necessary to satisfy the mind of the sanctioning authority was not to placed before it, was thus repelled. (Vide paras 8 and 9 of Ram Sagar Pandit v. State of Bihar (1964) 2 Cri.L.J 65 (SC) – 4 Judges - S. Jafer Imam, K. Subba Rao, N. Rajagopala Ayyangar, J. R. Mudholkar – JJ.)

Where the facts constituting the offence have not been set out in the order sanctioning the prosecution and no extraneous evidence to prove that the facts constituting the offence were placed before the Sanctioning Authority, the sanction granted is not valid. (In re Shah Vajanji Kasturchand AIR 1950 Mad 450 = 1951 Cri.L.J. 1061 – P. Chandra Reddy – J – Gokulchand Dwarkadas v. The King AIR 1948 PC 1882 – Sir John Beaumont, followed.)