Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-3]

L. Can it be said that certain offences committed by public servants cannot constitute acts done in performance of official duty ?

13. Unfortunately yes, in the light of certain decisions of the Supreme Court. In State of H.P. v. M.P Gupta (2004) 2 SCC 349 = AIR 2004 SC 730 - Doraiswamy Raju, Arijit Pasayat - JJ, it was held by the Apex Court that it was no part of the official duty of a public servant to commit offences punishable under Sections 467, 468 and 471 IPC and, therefore, there was no need for any sanction to prosecute such a public servant. Again it has been held that sanction for prosecuting a public servant for offences punishable under Section 409 and 468 IPC is not required since those offences cannot be committed in discharge of official duty. (Vide

• State of U.P. v. Paras Nath Singh (2009) 6 SCC 372 - 3 Judges - Dr. Arijit Pasayat, D. K. Jain, Dr. Mukundakam Sharma - JJ;
• Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1- Arijit Pasayat, S. H. Kapadia - JJ;
• Bholu Ram v. State of Punjab (2008 ) 9 SCC 140 - C. K. Thakker, D. K. Jain - JJ;
• Punjab State Warehousing corporation v. Bhushan Chander (2016) 13 SCC 44 = AIR 2016 SC 3014 - Dipak Misra, Shiva Kirti Singh - JJ.)

Following the decision in State of H.P v. M. P. Gupta (2004) 2 SCC 349 - Doraiswamy Raju, Arijit Pasayat - JJ, the Apex Court held that sanction under Section 197 Cr.P.C is not a condition precedent for the launching of prosecution for an offence under Section 409 IPC. (Vide N. Bhargavan Pillai v. State of Kerala (2004) 13 SCC 217 = AIR 2004 SC 2317 - Doraiswamy Raju, Arijit Pasayat - JJ.)

In State of Kerala v. Padmanabhan Nair (1999) 5 SCC 690 = AIR 1999 SC 2405 - K. T. Thomas, M. B. Shah - JJ, it was held by the Apex Court that it was no part of the duty of a public servant while discharging official duties to enter into a “criminal conspiracy” for committing criminal breach of trust and as such it cannot be said that sanction under Section 197 Cr.P.C is a condition precedent for launching a prosecution for offences under Sections 406, 409 read with Section 120 B of IPC. Again in Harihar Prasad v. State of Bihar (1972) 3 SCC 89 = 1972 Cr.L.J. 707 – J. M. Shelat, S. C. Roy – JJ and Rajib Ranjan v. R. Vijaykumar (2015) 1 SCC 513 = 2015 Cri.L.J. 267 (SC) - J. Chelameswar, A. K. Sikri - JJ, the Supreme Court had held that it was no part of the official duty of a public servant to enter into a “criminal conspiracy” or to indulge in “criminal misconduct” and that the want of sanction under Section 197 Cr.P.C was, therefore, no bar to prosecute the public servant.

In Inspector of Police v. Battenapatla Venkata Ratanam (2015) 13 SCC 87 - Kurian Joseph, A. K. Goel – JJ, it was held that fabrication of records or manipulation of registers or misappropriation of funds or permitting evasion of stamp duty etc. by the Sub-Registrars involving offences punishable under Sections 420, 468, 477 A, 120 B of IPC, were not part of their official duty so as to insist on prosecution sanction.

However, in R. Balakrishna Pillai v. State of Kerala (1995) 1 SCC 478 =AIR 1996 SC 901=1996 (1) KLT 250 (Graphite case) - A. M. Ahmadi- CJI, S. C. Sen - J, it was held by the Apex Court that the offence of “criminal conspiracy” punishable under Section 120 B of IPC alleged in that case was directly and reasonably connected with the official duty of the Minister for electricity attracting the protection under Section 197 (1) Cr.P.C. Accordingly, the conviction of the accused ex Minister for the offence of “criminal conspiracy” punishable under Section 120 B of IPC was set aside for want of prosecution sanction which according to the Supreme Court had to be issued by the Governor.

NOTES BY THE AUTHOR: Thus, the preponderance of judicial opinion seems to be that there are cases where it is no part of the official duty of the “Public Servant” to commit the aforementioned offences and in those cases no prosecution sanction under Section 197 (1) Cr.P.C. is required to be obtained for prosecuting the Public Servant whether or not he is in service or out of service.

Here the humble personal view of this author is different. It is only when a public servant exceeds his lawful authority and commits a criminal offence that the question of prosecuting him for that offence will arise and it is only for such prosecution that the sanction of the authority competent to grant sanction is required (Vide Padmarajan C.V. v. Government of Kerala and Ors 2009 1 KLT Suppl. 1=ILR 2009 (1) Kerala 36 – para 12 – V. Ramkumar - J). The Supreme Court in paragraph 2 of Pukhraj v. State of Rajasthan (1973) 2 SCC 701 - H. R. Khanna, A. Alagiriswami – JJ, held that Section 197 Cr.P.C is not confined to cases where the act which constitutes the offence is the official duty of the public servant concerned because such an interpretation would involve a contradiction in terms since an offence can never be an official duty. The Apex Court was emphatic that an offence should have been committed when an act is done in the execution of duty or when an act is purported to be done in execution of duty .

Again in State v. B.L. Verma (1997) 10 SCC 772 - Dr A. S. Anand, S. B. Majmudar - JJ, the Apex Court held that where the actions alleged against the public servant and constituting the offences punishable under Sections 120 B, 195, 469 and 471 IPC, had been done in purported discharge of his duties even though amounting to abuse of power, the trial court could not, in the absence of sanction under Section 197 Cr.P.C. take cognizance of the said offences. Thus, it is only when a public servant while acting as such goes astray from the rightful path, can his conduct turn unlawful.

I fail to see the logic or reason behind those verdicts which hold that certain criminal offences alone cannot be part of the official duty of a public servant. As if, the other offences were part of the official duty of a public servant!. In my humble view, a criminal offence punishable in law can never be considered as part of the official duty of a public servant. It is relevant to remember that insistence on sanction to prosecute a public servant does not mean extension of total immunity from prosecution. Very often, it is the righteous indignation of Judges which persuades them to search for and find out means to circumvent the statutory safeguards extended to certain class of offenders.

The words “acting or purporting to act in the discharge of his official duty” are to be understood bearing in mind the following situations –

1. Supposing a Government Doctor residing in a residential flat, finding that a young lady is alone in anther apartment in the same flat, sneaks into the said apartment and molests her. For prosecuting the said Government Doctor no sanction is necessary since his act was not done while acting or purporting to act in the discharge of his official duty. But, if the Government Doctor while examining a lady patient, outrages her modesty under the pre-text of ausculating and palpating her, then for this act of the Doctor, in my view, prosecution sanction is necessary since the act of outraging the modesty of the lady patient was done while acting or purporting to act as a Government Doctor. According to me, it will not be open to the prosecution to contend that it was no part of the official duty of the Doctor to outrage the modesty of the patient. It is the “excess” committal while discharging the duty that constitutes the “offence” and it is only for prosecuting the “public servant” for the “offence” that prosecution sanction is necessary.
2. In another case, the condition of a patient in a Government Primary Health Centre became precarious. Even though a jeep provided to the Doctor was for his official use, instead of shifting the patient to the District hospital for expert treatment, the Doctor himself travelled in the jeep for attending an official meeting in the District Headquarters and in the meanwhile the patient died. Setting aside the concurrent verdicts to the effect that no sanction was necessary to prosecute the Doctor for his negligence, the Supreme Court held that sanction under Section 197 (1) Cr.P.C. was necessary before the Doctor could be prosecuted. Even though the failure on the part of the Doctor in not providing the jeep for shifting the patient was moral than legal, it was held that he was definitely acting in the discharge of his official duty while traveling in the said jeep for attending the official meeting. (Vide Amal Kumar Jha v. State of Chattisgarh AIR 2016 SC 2082 = (2016) 6 SCC 734 - V. Gopala Gowda, Arun Mishra - JJ.) The worst that could be said of the Doctor was that he was heartless.

But the personal views of mortals like this author should definitely yield to the authority of binding judicial precedents, particularly of the Apex Court by the force of Article 141 of the Constitution of India. Let us hope that the true legal position will be clarified soon by the Supreme Court of India.

M. No prosecution sanction necessary in the case of certain erotic offences like rape etc.

14. “Public servants” who commit offences punishable under Sections 166 A, 166 B, 354, 354 A, 354 B, 354 C, 354 D, 370, 375, 376, 376 A, 376 C, 376 D or 509 of the Indian Penal Code are liable to be prosecuted for those offences without prosecution sanction under Section 197 (1) Cr.P.C. in the light of the Explanation to Section 197 (1) Cr.P.C. inserted by Amending Act 13 of 2013 with effect from 03-02-2013.

N. Whether members of the Police Force entitled to the protection under Section 197 (2) Cr.P.C. ?

15. Under Section 197 (3) Cr.P.C. the State Government is given the power to issue notification directing that the provisions of Section 197 (2) shall apply to such class or category of the members of the Forces charged with the maintenance of “public order” in the State as may be specified in such notification wherever they may be serving and thereupon the provisions of Section 197 (2) Cr.P.C. will apply requiring prosecution sanction by te State Government before a Court can take cognizance of the offences alleged provided they were committed while acting or purporting to act in the discharge of their official duty. In the State of Kerala as per notification issued as SRO No: 1211/1977 dated 06-12-1977, the Government of Kerala had issued a notification directing that Section 197 (2) Cr.P.C. shall apply to all members of the Kerala State Police charged with the maintenance of “public order”. It has been held that the expression “public order” in Section 197 (3) should be understood in a wider sense so as to include “law and order” as well unlike the narrow meeting ascribed to the expression “public order” in the context of “preventive detention”. (Vide -

• Muhammad v. Sasi 1985 KLT 404 - S. Padmanabhan – J; Sarojni v. Prasannan 1996 (2) KLT 859 (DB) - B. M. Thulasidas, K. A. Mohamed Shafi - JJ;
• Sunil Kumar v. State of Kerala 2007 (4) KLT 359 – R. Basant – J; Moosa Vallikkadan v. State of Kerala 2010 (3) KLT 437 – V. Ramkumar - J;
• P. Viswambharan, CI of Police v. State of Kerala 2010 (4) KLT 875 – M. Sasidharan Nambiar – J;
• Paras 9, 10, 12 and 13 of Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001) 5 SCC 7 = AIR 2001 SC 2198 - R. C. Lahoti, Santosh Hegde – JJ.)