Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-2]

F. The inevitable requirements for sanction to prosecute an accused who is a Judge, Magistrate or a Public Servant

7. It is not enough that the Judge, Magistrate or “public servant” concerned is holding such post. It should be further shown that they are not removable from their office except by or with the sanction of the appropriate Government and that the alleged offence was committed by them while acting or purporting to act in the discharge of their official duties during the time when they were employed in connection with the affairs of the appropriate Government. These mandatory requirements of Section 197 Cr.P.C. can be better illustrated by the following CHART:

Prosecution sanction by the appropriate Government is a condition precedent for a criminal court to take cognizance of an offence alleged against –

Prosecution sanction will be necessary only if 1 , 2 and 3 above co-exist. In other words, if any one of 1 to 3 above is absent, then sanction to prosecute the accused is not necessary. Similarly since 2 (b) above uses the words “was at the time of commission of the alleged offence, employed” prosecution sanction under Section 197 Cr.P.C. is necessary even if at the time of taking cognizance of the offence, the Judge, the Magistrate or the Public servant, has ceased to hold office or has retired from the service. But the position under the PC Act, 1988 was different prior to 26-07-2018 after which date, the position under the P. C. Act also has been brought on par with Section 197 (1) Cr.P.C.

G. The necessity, if any, for prosecution sanction under Section 197 Cr.P.C. in the case of a public servant who has ceased to hold office or has retired from service

8. In the case of a public servant who has either ceased to hold office or has retired from service also, sanction under Section 197 Cr.P.C. to prosecute him for an offence which attracts the said Section, is a must. This is because of the employment of the words “who was at the time of commission of the alleged offence, employed”

H. Who is a “Judge” within the meaning of Section 197(1) Cr.P.C.?

9. CrPC does not define the expression “Judge”, “Magistrate” or “Public Servant”. But in view of Section 2(y) of Cr.P.C., the definition of expressions which are defined in the IPC can be taken as the definition of expressions which are not defined in the CrPC Section 19 of IPC defines the word “Judge” as follows:

“19. “Judge” - The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person,-

who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or

who is one of a body of persons, which body of persons is empowered by law to give such a judgment.

Illustrations

(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.

(c) A member of a Panchayat which has power, under “Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.

I. Who is a “Magistrate” within the meaning of Section 197(1) Cr.P.C.?

10. The word “Magistrate” is not defined both in the Cr.P.C. as well as the IPC. When both the CrPC and the IPC are silent regarding an expression, then naturally one has to have recourse to the General Clauses Act, 1897. Clause (32) of Section 3 of General Clauses Act defines a “Magistrate” as under:

(32) “Magistrate” shall include every person exercising all or any of the powers of the Magistrate under the Code of Criminal Procedure for the time being in force.”

As per Section 3(1)(a) of CrPC any reference in the CrPC without any qualifying words to a Magistrate in relation to a metropolitan area has to be construed as a Metropolitan Magistrate and in relation to an area outside a metropolitan area has to be construed as a Judicial Magistrate. This construction is to be resorted to unless the context otherwise requires.

J. The meaning of the words “not removable from his office save by or with the sanction of the Government” occurring in Section 197(1) Cr.P.C.

11. Those words mean that in order to get the protection of Section 197(1) CrPC, the public servant should be removable from office by or with the sanction of the Government.

If, as per the Rules or Regulations governing the Government servant, a lower officer of the Government has been invested with the power to appoint or dismiss such Government servant, 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 under Section 197 Cr.P.C. Section 197 Cr.P.C. does not contemplate prosecution sanction by a delegated authority competent to remove the Government servant from office. When some lower authority is by law, or rule or order, empowered to remove a public servant from office, then such public servant cannot be said to be one removable by or with the sanction of the Government so as to necessitate prosecution sanction under Section 197 CrPC or Section 19 of PC Act, 1988. (Vide Nirendra Natha Sarkar v. State of Assam, 1985 CriLJ NOC 21 (Gauhati) – K. N. Saikia - J; Sakuntala Bai v. Venkata Krishna Reddy, 1952 CriLJ 1295 (Madras); Pichai Pillai v. Balasundara Mudaly, AIR 1935 Mad. 442 – Curjenven - J; Afzalur Rahman and Others v. Emperor, AIR 1943 FC 18 - Agarwala, Varma - JJ; Sant Kumar v. State of Punjab 2003 KHC 2599 : 2003 CriLJ 2949 - S. S. Saron – J.)

The public servant should be removable from office either by the Central or State Government and not by any lower authority. (Vide S. Kuppusswami Rao v. The King, AIR 1949 FC 1 – Sir Hilal J. Kania – CJ, Sir Fazl Ali, Patanjali Sastri – JJ.)

A Sub-Inspector of Police in the erstwhile State of Mysore could be dismissed from service by the Inspector General of Police and hence it could not be said that the Sub Inspector of Police was removable by or with the sanction of the Government. Consequently, no prosecution sanction under Section 197 CrPC was necessary. (Vide Nagraj v. State of Mysore 1964 KHC 432 : AIR 1964 SC 269 : 1964 (1) CriLJ 161] – 3 Judges - K. Subba Rao, Raghubar Dayal, J. R. Mudholkar - JJ; Fakhruzamma v. State of Jharkhand [2013 KHC 4964 : (2013) 15 SCC 552 - K. S. Radhakrishnan, A. K. Sikri - JJ.)

(Here also the accused was Sub Inspector of Police); Harikumar B v. Suresh @ Karupooru Suresh and Another 2014 (2) KHC 632 : 2014 (2) KLT 1028 : 2014 (2) KLD 33 - P. D. Rajan - J).

Where an officer is removable by the Railway Board, no sanction is necessary since the Board is neither the Central or State Government. (Vide K. N. Shukla v. Navnit Lal Manilal Bhatt 1967 KHC 678 : AIR 1967 SC 1331 : 1967 CriLJ 1200 - 5 Judges - K. Subba Rao – CJI, J. C. Shah, S. M. Sikri, V. Ramaswami, C. A. Vaidialingam - JJ). The decision of the Federal Court in Afzalur Rahman's case (supra) was approved and followed in this decision.

K. The meaning of the words “acting or purporting to act in the discharge of his official duty” occurring in Section 197(1) Cr.P.C.

12. This is a requirement of Section 197 Cr.P.C. only and there is no such requirement under Section 19 of PC Act, 1988.

The intention behind Section 197 Cr.P.C. is to prevent public servants from being unnecessarily harassed. The Section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act which constitutes the offence, is the official duty of the public servant concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be part of an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be donein execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty.

(A Post Master General (PMG) was visiting a Post Office for inspection. A clerk working there requested him for cancellation of his transfer. Thereupon, the PMG abused and kicked the clerk. Held: the alleged act was not in purported exercise of his duty since the act of abusing or kicking cannot be considered to be inextricably connected with the performance of official duty, namely, inspection. Reversing the verdict of the Rajasthan High Court and restoring that of the Trial Court, it was accordingly held that for prosecuting the PMG for offences punishable under Sections 323 and 504 IPC, no prosecution sanction was necessary. (Vide Pukhraj v. State of Rajashtan 1973 KHC 627 : (1973) 2 SCC 701 - H. R. Khanna, A. Alagiriswami - JJ – Here the offences were not committed during the purported exercise of the inspection duty of the P.M.G.)

Where a person died on account of the beating by the police in a lathi charge to disburse a mob which indulged in clashes and rioting between two rival political parties on an election day, it was held by the majority in a 3 Judge Bench of the Apex Court that the act of beating by the police officer was during the performance of his official duty requiring sanction under Section 197 Cr.P.C. (Vide Sankaran Moitra v. Shadhana Das [2006 KHC 622 : AIR 2006 SC 1599 - Y. K. Sabharwal – CJI, C. K. Thakker, P. K. Balasubramanyan - JJ.) The real test to be applied to attract the applicability of Section 197 (3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do so as such public officer. The act complained of may be “in exercise of the duty” or “in the absence of such duty” or “in dereliction of the duty”. If the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected (Vide –

• Para 15 of Rizwan Ahmed Javed Shaikh v. Jammal Patel 2001 KHC 636 : (2001) 5 SCC 7 : AIR 2001 SC 2198 – R. C. Lahoti, Santosh Hegde - JJ;
• Virupakshappa D. T. v. C. Subash [2015 KHC 4330 : (2015) 12 SCC 231 : AIR 2015 SC 2022 : 2015 (2) KLD 138 – Anil R. Dave, Kurian Joseph – JJ – 'a case of custodial torture by the Police);
• D. Devaraja v. V. Owais Sabeer Hussai 2020 KHC 6425 : (2020) 7 SCC 695 - R. Banumathi, Indira Banerjee - JJ.)

The essential requirement is a reasonable nexus between the alleged act and official duty and it does not matter if the act exceeds what is strictly necessary for discharge of the duty. (Vide –

• Abdul Wahab Ansri v.State of Bihar [2000 KHC 719 : 2000 (3) KLT 836 : AIR 2000 SC 3187 - G. B. Pattanaik, M. B. Shah, S. N. Phukan - JJ;
• State of H.P v. M. P. Gupta 2004 KHC 227 : AIR 2004 SC 730 - Doraiswamy Raju, Arijit Pasayat - JJ;
• K. Kalimuthu v. State 2005 KHC 825 : (2005) 4 SCC 512 : AIR 2005 SC 2257 - Arijit Pasayat, S. H. Kapadia - JJ;
• Jaya Singh v. K. K. Velayudhan 2006 KHC 1282 : (2006) 2 SCC 573 : AIR 2006 SC 2407 - S. B. Sinha, P. P. Naolekar - JJ.)

A “Judge” neither acts nor purports to act as a Judge in receiving a bribe, though the judgment he delivers may be such an act; nor does a “Government medical officer” act or purport to act as a “public servant” in picking the pocket of patient whom he is examining though the examination itself may be such an act. The test may well be whether the “public servant” if challenged can reasonably claim that what he does, he does by virtue of his office. (Vide

• H.H.B. Gill v. The King AIR 1948 P.C 128 – Simonds – J;
• Albert West Meads v. The King AIR 1948 PC 156 - Morton – J;
• Ronald Wood Mathams v. State of W.B 1954 KHC 501 : AIR 1954 SC 455 : 1954 CriLJ 1161 - Mehr Chand Mahajan – CJI, S. R. Das, N. H. Bhagwati, B. Jagannadhadas, T. L. Venkatarama Ayyar - JJ.

NOTES BY THE AUTHOR: With due respect, I find myself unable to agree with the above Illustrations of a “Judge” and a “Government Doctor”. A Judge is not expected to sell his verdict for money. Likewise, a Government Doctor is not expected to steal money from the patient whom he examines. Here, both the violations are committed by the Judge and the Government Doctor while purporting to act as such. Supposing the Judge were to ask a forensic surgeon to issue a false post-mortem report or supposing the Government Doctor were to steal money from the cupboard in the hospital room, the Judge and the Government Doctor, as the case may be, are not even purporting to act in discharge of their official duties and in such cases no prosecution sanction would be necessary. The words “purporting to act in discharge of official duty” occurring in Section 197 (1) Cr.P.C. have to be understood in the context of the occasion when the alleged illegal act was committed. If it was committed under the colour of office, then the illegal act cannot be a bona fide exercise of power i.e. it will not be an exercise in good faith. An ostensible act in purported exercise of official duty but done in bad faith is also covered by Section 197 Cr.P.C. The true legal position has been beautifully explained by Alagiri Swami – J and H.R. Khanna – J in Pukhraj v. State of Rajasthan (1973) 2 SCC 701, as follows:-

“The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the 'capacity in which the act is performed', 'cloak of office' and 'professed exercise of the office' may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty...”

The “nexus-test”, in my humble opinion, should not be stretched too far to say that the purported exercise of official duty cannot include all or any of the offences ostensibly committed in purported exercise of the official duty while the public servant is wearing the mantle of public servant. This is, however, not to say that if a Police Officer wearing the uniform of a Police Officer commits theft from his neighbour's house, he can be prosecuted only after obtaining prosecution sanction. There he will be on a frolic of his own requiring no prosecution sanction. As rightly observed in Pukhraj the words “acting in discharge of official duty” and the words “acting in purported discharge of official duty” should be understood to include excesses including offences committed while engaged in official duty as opposed to excesses including crimes committed by the public servant purely in a private capacity.

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