E SECTION 197(1) Cr.P.C DISSECTED AND DISMANTLED
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 service. But the position under the P.C. Act is different.
E1(a) Who is the sanctioning authority u/s 197(1) ?
E1(b) Who is the Sanctioning Authority under Section 197(1) Cr.P.C when the services of the employee have been lent ?
E1(c) Who is a Judge u/s 197(1) Cr.P.C ?
“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.
(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.
E1(d) Who is a Magistrate u/s 197(1) Cr.P.C ?
“ (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 Cr.P.C any reference in the Cr.P.C 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.
E1(e) Who is the Sanctioning Authority U/Ss 197(2) and 197(3) Cr.P.C ?
E1(f) Meaning of “acting or purporting to act in the discharge of his official duty” ?
This is a requirement of Section 197 Cr.P.C only and there is no such requirement under Section 19 of P.C. 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 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. (Here, the Post Master General (PMG) was visiting a post office for inspection. A clerk working there requested him for cancelation of his transfer. Thereupon the PMG abused and kicked the clerk. Held that 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 in the performance of official duty, namely, inspection. It was accordingly held that for prosecuting the PMG for offences punishable under Sections 323 and 504 IPC, no prosecution sanction was necessary)
Where a person died on account of the beating by the police in a lathy 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 AIR 2006 SC 1599). 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 perform, the public officer would be protected (vide para 15 of Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001) 5 SCC 7=AIR 2001 SC 2198).
E1(g) Committing of certain offences cannot constitute acts done in performance of official duty
In R. Balakrishna Pillai v. State of Kerala (1995) 1 SCC 478 =AIR 1996 SC 901=1996(1) KLT 250 (Graphite case), it was held by the Apex Court that in the light of the peculiar facts of that case, 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 accused ex Minister was acquitted of the offence under Section 120 B of IPC in view of the total absence of prosecution sanction under Section 197 (1) Cr.P.C which according to the Supreme Court had to be issued by the Governor.
Thus, in cases where it is no part of the official duty of the public servant to commit the aforementioned offences, then no prosecution sanction under section 197 Cr.P.C. is required to be obtained for prosecuting a public servant for the aforementioned offences whether or not such public servant is in service or out of service.
Note: 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 – para12).
The Supreme Court in Pukhraj v. State of Rajasthan (1973) 2 SCC 701 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 .
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.
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.
F SEC. 19(1) OF P.C. ACT, 1988 DISSECTED AND DISMANTLED
1 (a) he is employed in connection with the affairs of the Union.
(b) he is removable from his office either-
(i) by the Central Government.
(ii) with the sanction of the Central Government.
2 (a) he is employed in connection with the affairs of a State.
(i) by the State Government.
(ii) with the sanction of the State Government.
3 (a) he is not employed in connection with the affairs of the Union or a State.
(b) he is not removable from his office by or with the sanction of the Central or State Governments.
(c) there is an authority competent to remove him from office
Since 1 to 3 above do not use the words “ was at the time of commission of the alleged offence, employed”, prosecution sanction under Section 19(1) of the P.C. Act is not necessary if at the time of taking cognizance of the offence, the public servant has either retired from service or has ceased to be in office.
F1(a) Who is the Sanctioning Authority u/s 19(1) of P.C. Act, 1988
F1(b) Who is the Sanctioning Authority u/s 19(1) of P.C. Act when the services of the employee have been lent ?
G DISTINCTION BETWEEN SECTIONS 197 Cr.P.C AND 19 OF P.C. ACT, 1988.
Sanction for prosecution of Ministers after resignation, for offences committed during tenure as Ministers, not required. (S.A. Venkataraman v. State - AIR 1958 SC 107 = 1958 Crl.L.J. 254; R.S. Naik v. Antulay (1984) 2 SCC 183 = AIR 1984 SC 684 - 5 Judges; K.Veeraswami v. Union of India - (1991) 3 SCC 655 - 5 Judges; Habibulla Khan v. State of Orissa - (1995) 2 SCC 437 = AIR 1995 SC 1124).
But in the case of an accused person facing prosecution for offences attracting Section 197 Cr.P.C, sanction is necessary even if the accused public servant has ceased to be a public servant on the date of cognizance in view of the user of the verb “was” in addition to “is” in Section 197 (1) Cr.P.C. (vide R. Balakrishna Pillai v. State of Kerala (1996) 1 SCC 478=AIR 1996 SC 901=1996 (1) KLT 250; Rakesh Kumar Mishra v. State of Bihar (2006) 1 SCC 557=AIR 2006 SC 820; Raghunath Anand Govilkar v. State of Maharashtra (2008) 11 SCC 289).
Justice V.Ramkumar is a Former Judge, High Court of Kerala.
The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same.