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

A. I N T R O D U C T I O N Section 197 Cr.P.C. has been enacted for affording some protection to “public servants” including Judges and Magistrates. In the case of Judges and Magistrates, they have to function without any fear or favour, affection or ill will. As long as they act bona fide, they need protection for fearlessly administering justice and any person dissatisfied with their verdicts cannot straightaway prosecute them for the judgment which may not be either palatable or to their liking. Similarly, a “public servant” may have several enemies most of whom will be those disgruntled elements who were not able to get official favours from the “public servants”. The “public servants” also cannot show illegal favours to whosoever who may approach him. Such disgruntled elements may be waiting for an opportunity to launch frivolous or vexatious prosecutions against such unobliging “public servants”. That explains the protection under Section 197 Cr.P.C. afforded to “public servants” who are amenable to Government control. 2. Section 197 Cr.P.C. reads as follows: “197: Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted. Explanation.- For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166A, Section 166B, sSection 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376AB, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 509 of the Indian Penal Code (45 of 1860) (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the...

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

Justice V Ramkumar

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