Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-4]

O. Authorities competent to accord sanction under Section 19 (1) of the Prevention of Corruption Act, 1988 16. The authorities competent to grant prosecution sanction under the P. C. Act, 1988 are – (i) The Central Government in the case of a person who is employed in connection with the affairs of the Union and not removable from his office except by or with the sanction of the Central Government. (ii) The State Government in the case of a person who is employed in connection with the affairs of a State and is not removable from his office except by or with the sanction of the State Government. (iii) In the case of any other person, the authority competent to remove him from his office. Governor of the State is the appropriate authority competent to grant sanction to prosecute the Chief Minister of a State. (vide J. Jayalalitha v. M. Chenna Reddy (1998) 8 SCC 601 – 3 Judges). Minister of a State is a public servant entitled to the protection of Section 197 (1) Cr.P.C. and the word “Government” used in Section 197 (1) Cr.P.C. means “Governor” in the case of a Chief Minister or a Minister. (Vide R. Balakrishna Pillai v. State of Kerala (1996) 1 SCC 478 = AIR 1996 SC 901 - A. M. Ahmadi - CJI , S. C. Sen - J.) While granting prosecution sanction the Governor has to act independently of or contrary to the advice of the Council of Ministers. (Vide M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788 -5 Judges - N. Santosh Hegde, S. N. Variava, B. P. Singh, H. K. Sema, S. B. Sinha - JJ.). Until the Parliament makes suitable amendment to the P.C. Act, 1988, the Chairman of the Rajya Sabha or Speaker of the Lok Sabha, as the case may be, shall be the authority competent to grant sanction to prosecute an M.P. (vide paras 96 and 97 of P.V. Narasimha Rao v. State (CBI/SPE) (1998) 4 SCC 626 = AIR 1998 SC 2120 – 5 Judges- S. C. Agrawal, G. N. Ray, Dr. A. S. Anand, S. P. Bharucha, S. Rajendra Babu - JJ.) The President of India is the authority competent to grant sanction for the prosecution of a Judge of the High Court of a State or the Supreme Court of India. (Vide paras 45, 48 and 61 of K. Veeraswamy v. Union of India (1991) 3 SCC 655 = 1991 KHC 1162 – 5 Judges – B. C. Ray, K. Jagannatha Shetty, L. M. Sharma, M. N. Venkatachaliah, J. S. Verma – JJ.) P. Who is the sanctioning authority under Section 197 Cr.P.C. when the services of the employee public servant have been lent by the State Government either to another Government or to a non-Government body ? 17. Where the services of the employee public servant have been lent by the State Government to the Central Government and the offence has been committed while on deputation, it is the Central Government which alone can grant sanction under Section 197 Cr.P.C to prosecute the public servant. The question to be asked in this context is where is the public servant employed at the relevant time. If the offence is committed during his service under the borrowing Government, then that Government alone is competent to grant prosecution sanction under Section 197(1) Cr.P.C. (Vide para 19 of R.R Chari v. State of U.P AIR 1962 SC 1573 – P. B. Gajendragadkar, K. N. Wanchoo – JJ). But the position is different under Section 19 (1) of the P.C. Act, 1988 where the words “public servant not removable from his office save by or with the sanction of the Government” are separately provided in each of clauses (a) and (b) unlike Section 197 (1) Cr.P.C. were those words are common for both clauses (a) and (b) thereof. Since the words “employed in connection with the affairs of the Union or the State Government” occurring in clauses (a) and (b) of Section 19 (1) of P. C. Act, 1988 are separately provided, those words should be understood as “permanently employed” so as to comprehend that if the services of a person permanently employed with the State Government are lent to the Central Government temporarily, the sanction for prosecution is to be given by the State Government and vice versa, unlike Section 197 (1) Cr.P.C. were those words are common for both clauses (a) and (b) thereof. (Vide para 21 of R.R Chari v. State of U.P AIR 1962 SC 1573 – P. B. Gajendragadkar, K. N. Wanchoo – JJ; Para 19 of Gurbachan Singh v. State 1970 Cri.L.J. 674 = 1970 KHC 882 (Delhi) – Hardayal Hardy – J), where also it was held that if the services of the “Public Servant” permanently employed by the State Government have been loaned to the Central Government, the authority competent to remove the public servant from office would be the loaning Government and not the borrowing Government for any offence committed by him during his...

Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-4]

Justice V Ramkumar

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