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...

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

Justice V Ramkumar

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

Justice V Ramkumar

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