Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-3]

L. Can it be said that certain offences committed by public servants cannot constitute acts done in performance of official duty ? 13. Unfortunately yes, in the light of certain decisions of the Supreme Court. In State of H.P. v. M.P Gupta (2004) 2 SCC 349 = AIR 2004 SC 730 - Doraiswamy Raju, Arijit Pasayat - JJ, it was held by the Apex Court that it was no part of the official duty of a public servant to commit offences punishable under Sections 467, 468 and 471 IPC and, therefore, there was no need for any sanction to prosecute such a public servant. Again it has been held that sanction for prosecuting a public servant for offences punishable under Section 409 and 468 IPC is not required since those offences cannot be committed in discharge of official duty. (Vide State of U.P. v. Paras Nath Singh (2009) 6 SCC 372 - 3 Judges - Dr. Arijit Pasayat, D. K. Jain, Dr. Mukundakam Sharma - JJ; Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1- Arijit Pasayat, S. H. Kapadia - JJ; Bholu Ram v. State of Punjab (2008 ) 9 SCC 140 - C. K. Thakker, D. K. Jain - JJ; Punjab State Warehousing corporation v. Bhushan Chander (2016) 13 SCC 44 = AIR 2016 SC 3014 - Dipak Misra, Shiva Kirti Singh - JJ.) Following the decision in State of H.P v. M. P. Gupta (2004) 2 SCC 349 - Doraiswamy Raju, Arijit Pasayat - JJ, the Apex Court held that sanction under Section 197 Cr.P.C is not a condition precedent for the launching of prosecution for an offence under Section 409 IPC. (Vide N. Bhargavan Pillai v. State of Kerala (2004) 13 SCC 217 = AIR 2004 SC 2317 - Doraiswamy Raju, Arijit Pasayat - JJ.) In State of Kerala v. Padmanabhan Nair (1999) 5 SCC 690 = AIR 1999 SC 2405 - K. T. Thomas, M. B. Shah - JJ, it was held by the Apex Court that it was no part of the duty of a public servant while discharging official duties to enter into a “criminal conspiracy” for committing criminal breach of trust and as such it cannot be said that sanction under Section 197 Cr.P.C is a condition precedent for launching a prosecution for offences under Sections 406, 409 read with Section 120 B of IPC. Again in Harihar Prasad v. State of Bihar (1972) 3 SCC 89 = 1972 Cr.L.J. 707 – J. M. Shelat, S. C. Roy – JJ and Rajib Ranjan v. R. Vijaykumar (2015) 1 SCC 513 = 2015 Cri.L.J. 267 (SC) - J. Chelameswar, A. K. Sikri - JJ, the Supreme Court had held that it was no part of the official duty of a public servant to enter into a “criminal conspiracy” or to indulge in “criminal misconduct” and that the want of sanction under Section 197 Cr.P.C was, therefore, no bar to prosecute the public servant. In Inspector of Police v. Battenapatla Venkata Ratanam (2015) 13 SCC 87 - Kurian Joseph, A. K. Goel – JJ, it was held that fabrication of records or manipulation of registers or misappropriation of funds or permitting evasion of stamp duty etc. by the Sub-Registrars involving offences punishable under Sections 420, 468, 477 A, 120 B of IPC, were not part of their official duty so as to insist on prosecution sanction. However, in R. Balakrishna Pillai v. State of Kerala (1995) 1 SCC 478 =AIR 1996 SC 901=1996 (1) KLT 250 (Graphite case) - A. M. Ahmadi- CJI, S. C. Sen - J, it was held by the Apex Court that 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 conviction of the accused ex Minister for the offence of “criminal conspiracy” punishable under Section 120 B of IPC was set aside for want of prosecution sanction which according to the Supreme Court had to be issued by the Governor. NOTES BY THE AUTHOR: Thus, the preponderance of judicial opinion seems to be that there are cases where it is no part of the official duty of the “Public Servant” to commit the aforementioned offences and in those cases no prosecution sanction under Section 197 (1) Cr.P.C. is required to be obtained for prosecuting the Public Servant whether or not he is in service or out of service. 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 – para 12 – V. Ramkumar - J). The Supreme Court in paragraph 2 of Pukhraj v. State of Rajasthan (1973) 2 SCC 701 - H. R. Khanna, A. Alagiriswami – JJ, 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...

Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-3]

Justice V Ramkumar

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