[Section 197 CrPC] No Protection Of Sanction Where The Acts Are Performed Using The Public Office As A Mere Cloak For Unlawful Gains [Read Judgment]

The Supreme Court has observed that protection of sanction to public servants under Section 197 of the Code of Criminal Procedure is not available where the acts are performed using the office as a mere cloak for unlawful gains.

The Court also observed that the protection of sanction under Section 19 of the Prevention of Corruption Act would not be available to a public servant after he had demitted his office or retired from service.

The bench of Justice Uday Umesh Lalit, Justice Indu Malhotra and Justice Krishna Murari disapproved the observation of the High Court (which had allowed the discharge plea of the accused) that the protection available to a public servant while in service should also be available after his retirement. 

In this case (Station House Officer, CBI vs. B.A. Srinivasan), after the accused had retired from service, FIR was lodged against him under various provisions of Indian Penal Code and Prevention of Corruption Act.  The High Court allowed his revision petition against the Trial Court order which refused his plea seeking discharge

In appeal, referring to its earlier judgments in State of Punjab vs. Labh Singh and S.A. Venkataraman vs. The State, the Apex Court bench said that the said statement by the High Court is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act. It said:

In S.A. Venkataraman vs. The State while dealing with the requirement of sanction under the pari materia provisions of the Prevention of Corruption Act, 1947, it was laid down that the protection under the concerned provisions would not be available to a public servant after he had demitted his office or retired from service.

Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act. The High Court was also not justified in observing 'that the protection available to a public servant while in service, should also be available after his retirement'. That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act.

Regarding the protection under Section 197 of the Criminal Procedure Code, the bench said that it is available to the public servants when an offence is said to have been committed 'while acting or purporting to act in discharge of their official duty', but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. The issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression 'while acting or purporting to act in discharge of their official duty', would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well, it added. It noted following observations from earlier judgments on this subject.

The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained." [Shambhoo Nath Misra v. State of U.P ]

The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity

The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage." [Parkash Singh Badal v. State of Punjab]

Even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted." [Rajib Ranjan v. R. Vijaykumar]

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