Section 197 of the Code of Criminal Procedure [“CrPC”] prescribes the procedure to be followed for the purpose of prosecution of Judges and public servants. In order to prosecute a person who is or was a Judge or Magistrate or a public servant, not removable without a sanction of the government, for committing an offence committed while acting or purporting to act in the discharge of his official duty, the previous sanction of the Central/State Government is required for the Court to take cognizance. Additionally, the Section also protects members of the armed forces of the Union, and by the State when such members are charged with the maintenance of public order in a State and thus, should be read with Chapter X of the CrPC.
The provision must also be read in light of Section 19 of the Prevention of Corruption Act. However, the Prevention of Corruption Act only deals with offences punishable under Section 7, 10, 11, 13 and 15 of the act and thus, has a restricted area of operation.
The purpose of the Section is intrinsically related to the doctrine of state immunity. The doctrine of State immunity implies protection for all the acts which are performed in the exercise of their functions of the government. Thus, the purpose of section 197, in furtherance of this larger objective, is to protect these acts in discharge of official duty from prosecution.
This article shall present an analysis of the judicial trend on the sanctioning power of the Government and the ancillary issues. In addition to the interpretation of words ‘discharge of official duty’, questions like ‘who is a public servant?’, ‘what is the scope of this section?’ ‘How should the sanction be granted?’ are answered.
Who is a Public Servant?
This question requires reference to Section 21 of the Indian Penal Code, 1860 [“IPC”]. Section 21 of the IPC defines a public servant as a person falling under any of the descriptions mentioned in the section. Herein, the pool of public servants is limited to those not removable without the permission of the government. Therefore, no such sanction is required for a public servant removable by an authority lower than the government.
Public servants are holders of public offices who are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Considering the nature of the office, the provision seeks to protect the public servant from harassment by frivolous or vexatious prosecution.
One of the moot questions related to who is a public servant is whether the protection given under the provision is applicable to employees of Government companies who are not removable from office without governmental sanction. There is no single answer to this question under Indian jurisprudence.
One of the earliest landmark judgment is that of Mohammad Hadi Raja v. State of Bihar & Anr. Herein, The concerned officer of the public sector undertaking or the Government company being State under Article 12 of the Construction was removable from office by or with the sanction of the Government and such officer was alleged to have committed an offence by his action which can be construed as action taken while “acting or purporting to act in the discharge of his official duties.” Even under these circumstances, the Court held that employees of PSUs are not public servants since PSUs as an instrumentality has an independent status and the action taken by them, however falls in the ambit of interest of state, cannot be held to be an action taken by or on behalf of the governments.
However, the law suffers from many inconsistencies in this respect. In S.P. Das v. State of Bihar, it has been held that the Senior Divisional Manager and the Assistant Manager of the Insurance Company are public servants as defined under Section 21 IPC for entitling sanction under Section 197 CrPC. Similarly, in State of Maharashtra v. L.D. Kanchan, an employee of a nationalised bank was held to be a public servant. Government companies satisfy the deep and pervasive control test and the State is in fact the true owner, real operator and effective controller of these companies. Therefore, in my opinion, the Apex Court has erred in its reasoning and that the employees of the Government companies, removable only with the sanction of the Government, should be accorded protection under Section 197 of the CrPC.
Scope of Section 197
In order to determine if the person was acting or purporting to act in discharge of his official duty, the test is to determine if the act constituting an offence is directly and reasonably connected with his official duty or not. This connection must be such that the accused can say that the act was done in the course of the performance of his duty and must prove that it is not a fanciful claim alone. The Section does not offer protection to every act of a public servant in service restricting its scope of operation to acts or omissions committed by a public servant in discharge of his official duty.
In conformity with the settled law, actions like bribery, fraud or criminal conspiracy do not come under the purview of Section 197. The Apex Court found, in the case of Shamboo Nath Misra v. State of U.P. and Ors., that it is not the official duty of the public servant to fabricate false records or misappropriate public funds. The Court differentiates between reasonably connected to the office and being enabled due to the office. The official capacity only enables the officer to fabricate the record or misappropriate the public fund etc. but does not make it integrally connected or inseparably interlinked with the crime committed. Anything for the public servant’s own benefit cannot be given protection under Section 197 as principle of immunity is related to the functions of the Government alone.
Therefore, it is the quality of the act which is the most important consideration in determining the reasonable connection between the act and official duty of the public official.
Role of the Sanctioning Authority
Section 197(4) of the CrPC states that the Central/State Government has the power to determine the person by whom, the manner in which, and the offence or offences for which the prosecution of such a public servant is to be conducted and specify the Court in which the trial is to be held. However, the section is not indicative of how the sanctioning authority is required to exercise its power. The Supreme Court, in the case of Superintendent of Police (CBI) v. Deepak Chowdhary, the Court identified the grant of sanction to be an administrative function. What is required is that the investigating officer should place all the necessary material before the sanctioning authority who should apply its mind to that material and accord sanction. Therefore, the question of giving opportunity of hearing to the accused before granting sanction does not arise. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case sanctioned the prosecution. In accordance with these judgments of the Court, guidelines were framed by the Central Vigilance Commission [“CVC”]. Therefore, the competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.
The law related to the sanctioning power of the Government with respect to the prosecution of public servants is essentially established under Indian law. The scope of the section is limited in the public interest to not include acts which cannot be reasonably connected with the official duty of the public servant. Further, the author believes that the definition of public servant should include employees of Government companies, especially when Section 197 is solely related to the public servants not removable without the government’s approval.
About the Author Rishika [2018-23] is pursuing B.B.A.LL.B(Hons) from National Law University, Jodhpur.
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