OFFENCES RELATING TO PUBLIC

SERVANTS IN INDIA”

THIS FINAL DRAFT IS SUBMITTED IN THE FULFILMENT OF THE COURSE TITLED

CRIMINAL LAW-I

Submitted by: Submitted to:

KARTIK BHARGAVA Dr. P. Vara Lakshmi
2018044
B.A(Hons.) LLB, P.G.DCL and
B.A.LL.B. (Hons.)
3rd SEM IPR, M.L., Ph.D.

DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
TABLE OF CONTENTS

CHAPTER I.......................................................................................................................... 8

INTRODUCTION ................................................................................................................ 8

Objectives of the Study: .................................................................................................. 10

Hypothesis: ..................................................................................................................... 10

Research Methodology: ................................................................................................... 11

Sources of Data Collection: ............................................................................................. 11

Limitation of the Study: .................................................................................................. 12

Scope of Study: ............................................................................................................... 12

CHAPTER II ...................................................................................................................... 13

REASON AND RATIONALE BEHIND THE PREVILEGES TO JUDGES AND PUBLIC

SERVANT .......................................................................................................................... 13

Objective Behind The Provision ...................................................................................... 15

Scope Of Provision ......................................................................................................... 15

Not Removable From His Office Save By Government ................................................... 16

While Acting or Purporting to Act in the Discharge of his Official Duty ......................... 17

Take Cognizance Under This Section .............................................................................. 18

What Is A Sanction ......................................................................................................... 18

CHAPTER III ..................................................................................................................... 19

PROECUTION OF JUDGES AND PUBLIC SERVANTS: a JUDICIAL VIEW ................ 19

Validity Of the Provision................................................................................................. 19

Limitations in the Provision ............................................................................................ 21

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CHAPTER IV ............................................................................................................................... 24

CONCLUSION................................................................................................................... 24

BIBLIOGRAPHY ............................................................................................................... 26

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 DECLARATION

I hereby declare that the work reported in the B.A.LL.B (Hons.) Project Report entitled
“OFFENCES RELATING TO PUBLIC SERVANTS IN INDIA” submitted at
Damodaram Sanjivayya National Law University, Visakhapatnam is an authentic record
of my work carried out under the supervision of DR. P. Varalakshmi. I have not submitted
this work elsewhere for any other degree or diploma.

I am fully responsible for the contents of my Project Report.

Signature

Damodaram Sanjivayya National Law

University, Visakhapatnam

Date :

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5|Page
 ACKNOWLEDGEMENT

I would like to thank my faculty, Dr. P. Varalakshmi, whose guidance helped me a lot with
structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn‟t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped
me out at every stage of my project.

THANK YOU,
KARTIK BHARGAVA
ROLL NO. 2018044,
SEMESTER – 3RD

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 LIST OF ABBREVIATIONS
AIR All India Reporter

Art . Article

Bom Bombay series, Indian Law Reports.

Bom LR Bombay Law Review

CrLJ Criminal Law Journal Of India

CrPC Code of Criminal Procedure, 1973

HC High Court

MP Madhya Pradesh

i.e. That is

IPC Indian Penal Code

Sec. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

supl Supplementary

U.P. Uttar Pradesh

v. Versus

7|Page
 LIST OF CASES
 Amrik Singh v. State of Pepsu, (1995) 1 SCR = AIR 1955 SC 309
 Baji Nath, AIR1966 SC 220
 Bihari Lal v State, 2002 Cr LJ 3715 (Del)
 Dadamchand v. Ramcharan Singh, 1988 Cr LJ 1506 (MP)
 Darshan Kumar v Sushil kumar Malhotra, 1980 CrLJ 154 (HP)
 Desaibhai, (1937) 39 Bom LR 1056
 Dr. Subramanian Swamy v. Dr. Manmohan Singh, AIR 2012 SC 1185
 Haryana v. Iqbal Singh, 1978 Cr LJ 46 (DB)
 K. Ch. Prasad v J Venalatha Devi, AIR 1987 SC 722
 K. Kalimuthu v. State, (2005) 4 SCC 512 :AIR 2005 SC 2257
 Koya v Muthukoya, 1978 Cr LJ NOC 46 (Ker)
 Lumbhardar Zutshi, (1949) 52 Bom LR 480
 Matajog Dobey v. H.C. Bhari, (1955) 2 SCR 925: AIR 1956 SC 44
 Mohd. Pasha, (1956) Hyd191
 Mohd. Rashid Khan v. State of West Bengal, 1994 Cr LJ 2699 (Cal)
 P. Palanisamy v. Shenbagathothem Rasidents‟ Association, 2002 CrLJ 704 Mad
 Parshram Keshav, (1870) 7 BHC (Cr C) 61
 Pichai Pillai v. Balasundra Mudaly, (1935) 58 Mad 787
 Public Prosecutor, H.C. of A.P., Hyderabad v TV Sharma, 1978 CrLJ NOC 205 (AP)
 Rajkumar Anandilal v. State of Maharashtra, 2005 CriLJ 4665
 Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557 = (2006) 1 SCC (Cri.) 432
 Ram Adhar Yadav v. Ram Chandra Misra, 1992 Cr LJ 2216 (All)
 Rudra Datt Bhatt, (1933) 55 All 798
 Shankarrao v. Burjor Engineer, (1961) 64 Bom LR 130
 Shreekantiah Ramayya Munipalli v. State of Bombay, (1995) 1 SCR 1177:AIR 1955
SC 287
 State of M. P. v. Sheetla Sahai, ( 2009 ) 8 SCC 617
 State of U. P. v. Paras Nath Singh, 2009 (8 ) SCR 85
 Surendra Pandey v. State of Bihar, (2000) 9 SCC 199

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 CHAPTER I

INTRODUCTION

“Power tends to corrupt, and absolute power corrupts absolutely."

-Lord Acton, letter to Bishop Mandell Creighton in 1887

The provisions prosecution of a Judge or Public Servant in India, who is accused of any
offence alleged to have been committed by him while acting or purporting to act in discharge
of his official duty, are given in the Code of Criminal Procedure,1973 under the section 197.

The section reads as such

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-

(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

9|Page
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 oof any offence alleged to have been committed
under section 166A, section 166B, section 354, section 354A, section 354B, section354C,
section 354D, section 370, section 375, section 376, section 376A, section 376C, section
376D or section 509 of the Indian Penal Code (45 of 1860).]1

The objective of giving protection (immunity) to Judges and Public Servants under Sec. 197
Cr.P.C. is to guard against vexatious proceedings against Judge/ Magistrate/Public Servant.
The protection given under Sec. 197 Cr.P.C. is not available for Judge/Magistrate/Public
Servant, if the act or omission is not connected with official duty.

It is clear from the above provisions that sanction under Section 197 Cr.P.C. is not necessary
in respect of every public servant. Other than for a Judge or Magistrate, this sanction is
required only in respect of a public servant who is not removable from his office save by or
with the sanction of the Government.

Secondly, even in respect of such a public servant who is not removable from his office save
by or with the sanction of the Government, sanction would be needed only if the alleged
offence was committed by him while acting or purporting to act in the discharge of his
official duty. If the offence was committed in his personal capacity or in any other manner
(which is not while acting in discharge of his official duty or purporting to act so), then again
this sanction would not be required.

Therefore, if any offence is committed, whether under the Indian Penal Code (IPC) or under
any other Act, which was committed by him while acting or purporting to act in the discharge
of his official duty, sanction may be needed if such public servant can be removed only by or
with the sanction of the Governor or President.

The section 19 of the Prevention of Corruption Act, 1988 and section 197 of Cr.P.C., 1973
both require such sanctions to be passed by the government before a court can take
cognizance of the offence. It is available to public servant only when the act is reasonably
connected with the discharge of his official duty and not merely a cloak for doing

1
Section 197, Code of Criminal Prodecure, 1973

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objectionable acts. For it is equally important to emphasise that the rights of the citizens
should be protected and no excesses should be permitted.

The provisions provide a general protection to judges and public servants and while like all
other provisions may have sound and noble intent, it can be used as a weapon by the judges
and public servants against the general public. They may use it to cause unnecessary delay or
dissuade people from reporting any offences committed by them. On the other hand, if the
provision does not exist then judges and public servants will be constantly harassed by
frivolous complaints and malicious prosecutions.

The delicate balance that hangs within the provision between the protection of judges and
public servants and the potential abuse of power by them as well as the scope of the section
has inspired the researcher to conduct a research on the topic.

OBJECTIVES OF THE STUDY:-

The researcher with the help of this research project aims to fulfil the following:

 Gain greater knowledge about the process for the prosecution of judges and
public servants in India.
 Find out the result of the hurdles that occur in the prosecution of public servants
as a result of the Sec. 197 of CrPC, 1973 and Sec. 19 of Prevention of
Corruption Act, 1988.
 Find out the limitations of imposed by the aforementioned provisions and
judicial interpretation to remove the hurdles so imposed.
 Find out the scope and practical applicability of the Lokpal and Lokayuktas
Act,2013 in the prosecution of the public servant.
 Find out the practical problems that are faced by common people in filing
complaints against public servants and the resultant shortcomings of the
provision.

HYPOTHESIS:-
The researcher is of the prior belief that:

 The provision prescribed in the CrPC, 1973 and Prevention of Corruption Act,
1988 make it difficult to prosecute judges and public servants by requiring

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 sanction of the government and thereby causing unnecessary delay as such in
the prosecution.

RESEARCH METHODOLOGY:-
The researcher intends to adopt a doctrinal method of research for the purposes
of this research work. The doctrinal research methodology provides an ample scope to
examine the existing literature from both primary and non-primary sources. Doctrinal
methodology mainly helps the researcher to find out the gaps in the existing provisions
of the law basing on statutes, international and national documents, case law, juristic
writings and other scholarly literature available on the area of the research. An
examination of these sources relevant to the topic of study certainly helps the
researchers to find out the ways and means to fill the gaps in the existing legal system
and also to suggest the redressal mechanism that need to be injected by the State in its
future policy formulations.

SOURCES OF DATA COLLECTION:-

The researcher will collect data from both primary as well as secondary sources.

The primary sources:

 The Code of Criminal Procedure, 1973

 The Prevention of Corruption Act, 1988
 The Lokpal and Lokyuktas Act, 2013
 Law Commission Report
 Relevant Cases

The secondary sources are:

 Books
 Journals
 Magazines
 Jurists Opinions
 Opinions of stake-holders

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LIMITATION OF THE STUDY:-
Since the researcher is a student of law, she has access to a limited area and
knowledge. The researcher having read only the commentaries on the CrPC could
understand the problem clearly but it would have been clearer if she would have read
commentaries of more jurists and authors. The researcher has limited time for the
project. The historical need and background is also necessary for having a bird‟s eye
view of the particular topic and it gets developed only by effective and extended
reading over a long period of time. However the researcher only has access to limited
amount of work that is available in the library. The researcher has a restricted access to
the reports of the law commission for reasons of non-availability in hardbound or
paperback formats in the library that is accessible by the researcher. But the researcher
will still attempt to take out the best possible work.

SCOPE OF STUDY:-
The research if implemented will help develop a more sound and reasonable
process for the prosecution of judges and public servants in India. It will ensure that not
only are they protected from false prosecution and harassment but that the common
citizens are also protected from the atrocities that are brought about by the abuse of
power by public servants and judges and to ensure that corruption is discouraged in the
judiciary and executive alike.

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 CHAPTER II

REASON AND RATIONALE BEHIND THE PREVILEGES TO

JUDGES AND PUBLIC SERVANT

The section 197 of the Code of Criminal Procedure, 1973 makes special provisions for
prosecution of judges and public servants in India. It says that there can be no prosecution of
judges and public servants without a previous sanction for the same.

“2Section 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

(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

2
Section 197 Code of Criminal Procedure, 1973.

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have been committed under section 166A, section 166B, section 354, section
354A, section 354B, section 354C, section 354D, section 370, section 375,
section 376, section 376A, section 376C, section 376D or section 509 of the
Indian Penal Code, 1860 (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 while 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.

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 (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 offence or offences
for which, the prosecution of such Judge, Magistrate or public servant is to be
conducted, and may specify the Court before which the trial is to be held.”

OBJECTIVE BEHIND THE PROVISION

The object of Section 197 of the Code is to guard against vexatious proceedings against
Judges, Magistrates and public servants and to secure the opinion of superior authority
whether it is desirable that there should be a prosecution.3 The reason of this section is to
guard some important categories of public servants performing onerous and responsible
functions against vexatious or mala fide proceedings. They include Judges, Magistrates,
members of the Armed Forces, Public servants etc. who are not removable from office except
by or with the sanction of the Government. It has been held that the absence of the sanction to
prosecute as required by sec. 197 vitiates the trial. 4 Without such a sanction a complaint
cannot be entertained.5

SCOPE OF PROVISION
This section applies when the act or omission on part of the public servant or judge
complained of is closely and inseparably connected with the duties which such public servant
has to perform and such act or omission amounts to an offence.6 Under the colour of office,
official duty implies that the act or omission must have been done by the public servant in
course of his service and such act or omission must have been performed as part of duty
which further must have been official in nature. The Section 197, Cr.PC. has, thus, to be
construed strictly while determining its applicability to any act or omission in course of
service. Its operation has to be limited to those duties which are discharged in course of duty. 7
But once any act or omission has been found to have been committed by a public servant in
discharge of his duty then it must be given liberal and wide construction so far its official
nature is concerned. For instance a public servant is not entitled to indulge in criminal
activities. To that extent the Section 197 has to be construed narrowly and in a restricted
manner. However, if the public servant commits an act in course of service but not in

3
Pichai Pillai v. Balasundra Mudaly, (1935) 58 Mad 787.
4
Haryana v. Iqbal Singh, 1978 Cr LJ 46 (DB).
5
Koya v Muthukoya, 1978 Cr LJ NOC 46 (Ker).
6
Shankarrao v. Burjor Engineer, (1961) 64 Bom LR130.
7
Ram Adhar Yadav v. Ram Chandra Misra, 1992 Cr LJ 2216 (All).

16 | P a g e
discharge of his duty and without any justification therefore then the bar under Section 197 is
not attracted and there is no sanction necessary. 8

The protection under Section 197(1) of the Code is needed as much after retirement of the
public servant as before retirement. The protection given by Section 197(1) of the Code will
become illusory if it were open to a private person harbouring a grievance to wait until the
public servant ceased to hold his official position, and then to lodge a complaint. Therefore , it
is necessary to provide protection to public servants even after they retire.

The Section 197(1) can be better understood by dividing it in four parts according to the
requirements of the section. They are

(A) The judge or public servant is or was not removable from office save by the government;

(B) The alleged offence has been committed while acting or purporting to act in the discharge
of his official duty;

(C) How the court can take cognizance of the matter and have jurisdiction over it; and

(D) What is meant by sanction required under this section.

NOT REMOVABLE FROM HIS OFFICE SAVE BY GOVERNMENT

For the applicability of sec. 197 it is not enough to be merely a public servant. It has to be
further shown (i) that such public servant is not or was not removable from the office save by
or with the sanction of the government 9, and (ii) that the alleged offence should have been
committed by him while acting or purporting to act in the discharge of his duties. 10 Section
197 of the Code is attracted only in cases where the public servant is such who is not
removable from his office save by or with the sanction of the Government. The sanction for
prosecution is also required for Class III and IV employees for the police force. 11

The sanction of the Government is necessary for the prosecution of any Judge if a complaint
is made against him. The Central or State Government is not the competent authority for
according sanction for the prosecution of a judge of the High Court under Section 197(1) of
the Code because a High Court Judge cannot be removed by the Government as they are

8
Bihari Lal v. State, 2002 Cr LJ 3715 (Del).
9
K. Ch. Prasad v J Venalatha Devi, AIR 1987 SC 722.
10
Bihari Lal v State, 2002 Cr LJ 3715 (Del).
11
Dadamchand v. Ramcharan Singh, 1988 Cr LJ 1506 (MP).

17 | P a g e
removed by a special procedure specified in Article 124(4) and (5) of the Constitution. 12 As
per Section 197(4) of the Code, the Central Government or the State Government, as the case
may be, may determine the person by whom, the manner in which, and the offence or
offences for which, the prosecution of such Judge, Magistrate or public servant is to be
conducted and may specify the Court before which the trial is to be held.

WHILE ACTING OR PURPORTING TO ACT IN THE DISCHARGE OF HIS OFFICIAL

DUTY
In order to attract Section 197 of the Code, it is necessary that the accused person must have
committed the offence while acting or purporting to act in the discharge of his official duty13.
It is not every offence committed by a public servant which requires sanction for prosecution
under Section 197(1) of the Code, nor even every act done by him while he was actually
engaged in the performance of his official duties. 14 But, if the act complained of is directly
concerned with his official duties so that, if questioned, it could be claimed to have been done
by virtue of the office, then sanction would be necessary and that would be so, irrespective of
whether it was in fact a proper discharge of his duties or not.15

There are three facets in the consideration of the protection given by the sec. 197 to the acts
done by public servants. (1) Where there is something in the nature of the act complained that
attaches it to the official character of the person doing it; (2) Where the official character or
status of the accused gave him an opportunity of doing the act; and (3) where the offence is
committed at the time when the accused was engaged in his official duty. The first if the
correct facet to which sec. 197 applies.16

One safe and sure test for determining whether there is reasonable connection between the act
complained of and the official duty of the public servant would be to consider if the omission
or neglect on the part of the public servant to commit the act complained of could have made
him answerable for a charge of dereliction of duty. If the answer if in the affirmative then the
act is within his official duty.17

12
Constitution of India.
13
Surendra Pandey v. State of Bihar, (2000) 9 SCC 199.
14
Mohd. Pasha, (1956) Hyd191; Baij Nath, AIR1966 SC 220.
15
K. Kalimuthu v. State, (2005) 4 SCC 512 :AIR 2005 SC 2257.
16
Public Prosecutor, H.C. of A.P., Hyderabad v TV Sharma, 1978 CrLJ NOC 205 (AP).
17
Darshan Kumar v Sushil Kumar Malhotra, 1980 Cr LJ 154 (HP).

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TAKE COGNIZANCE UNDER THIS SECTION
No court shall take cognizance of the offence committed by judge or public servant in his
public capacity without a sanction. Sanction order is necessary to give jurisdiction to the court
for taking cognizance of the offence. 18 However the complaint can be examined without a
sanction. The accused cannot be summoned or evidence cannot be taken against him without
a sanction. Until the sanction is obtained, the tribunal by which the offence is triable has nno
jurisdiction and a conviction founded on evidence taken without sanction is bad.19

WHAT IS A SANCTION
A sanction is an order directing the prosecution of certain person, and in the ordinary way that
order is conveyed to the authorities who are responsible for initiating prosecution in the
locality in question.20 What is required to be seen by the competent authority is whether the
facts placed before it prima facie disclose the commission of an offence by such public
servant. If the competent authority is satisfied that the material placed before it is sufficient
for prosecution of the public servant then it required to grant the sanction, otherwise it can
refuse the sanction.21 The section does not require that the sanction hould be addressed to any
particular court or officer, or that the orders under it should necessarily be passed in every
case.22

The Criminal Law (Amendment) Act, 2013 has inserted an amendment in the form of the
explanation of sub-section (1) of sec. 197 which seekes to do away with the requirement of
the sanction for prosecuting public servants for offences alleges to have been commited by
him under the sections enumerated in the explanation. Thus, a public servant who commits
any sexual offences or offences under sec. 166A and sec. 166B cannot claim the protection of
the sanction.23

18
Mohd. Rashid Khan v. State of West Bengal, 1994 Cr LJ 2699 (Cal).
19
Parshram Keshav, (1870) 7 BHC (Cr C) 61.
20
Rudra Datt Bhatt, (1933) 55 All 798.
21
Dr. Subramanian Swamy v. Dr. Manmohan Singh, AIR 2012 SC 1185.
22
Desaibhai, (1937) 39 Bom LR 1056.
23
Ratanlal and Dhirajlal, THE CODE OF CRIMINAL PROCEDURE,402 (BM Prasad and Manish Mohan ed.,
21st edn., 2014).

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 CHAPTER III

PROECUTION OF JUDGES AND PUBLIC SERVANTS:

The privilege of immunity from prosecution without sanction extends to acts done or shown
to be done by judges and public servants in discharge of their official duty but at the same
time, the rights of the citizens also need to be protected against capricious officials who may
indulge into excesses in the garb of their official duty. Therefore, in order to maintain a
balance free and fearless functioning of the public servants on the one hand and protection of
the rights of citizen against the excesses of government officials on the other hand, Section
197 provides privilege of immunity from prosecution only after securing sanction of a
superior authority.

VALIDITY OF THE PROVISION:

The section 197 of the CrPC,1973 is not ultra vires as it is not violative of the article 14 of
the Constitution24 as it is not arbitrary. A Constitution Bench of Supreme Court had occasion
to consider the scope of Section 197 of the Code of Criminal Procedure after holding that
Section 197 of the Code of Criminal Procedure was not violative of the fundamental rights
conferred on a citizen under Article 14 of the Constitution in the case of Matajog Dobey v.
H.C. Bhari25.

The Court observed that Public servants have to be protected from harassment in the
discharge of official duties while ordinary citizens not so engaged do not require this
safeguard. It was argued that Section 197, Criminal Procedure Code vested an absolutely
arbitrary power in the Government to grant or withhold sanction at their sweet will and
pleasure, and the legislature did not lay down or even indicate any guiding principles to
control the exercise of the discretion.26

24
Section 14. Equality before law: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth, The Constitution of India.
25
Matajog Dobey v. H.C. Bhari, (1955) 2 SCR 925: AIR 1956 SC 44.
26
Ibid.

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There is no question of any discrimination between one person and another in the matter of
taking proceedings against a public servant for an act done or purporting to be done by the
public servant in the discharge of his official duties. No one can take such proceedings
without such sanction.•

On the Code was attracted or not and to ascertain the the test to be adopted for finding out
whether of scope and meaning of that section.

Slightly differing tests have been laid down in the decided cases to ascertain the scope and
the meaning of the relevant words occurring in Section 197 of the Code; any offence alleged
to have been committed by him while acting or purporting to act in the discharge of his
official duty. But the difference is only in language and not in substance. 27

The offence alleged to have been committed must have something to do, or must be related in
some manner, with the discharge of official duty. No question of sanction can arise under
Section 197, unless the act complained of is an offence; the only point to determine is
whether it was committed in the discharge of official duty. There must be a reasonable
connection between the act and the official duty. It does not matter even if the act exceeds
what is strictly necessary for the discharge of the duty, as this question will arise only at a
later stage when the trial proceeds on the merits. What we must find out is whether the act
and the official duty are so interrelated that one can postulate reasonably that it was done by
the accused in the performance of the official duty, though possibly in excess of the needs
and requirements of the situation.•

The Supreme Court, After referring to the earlier decisions of the Federal the summed up the
position thus: The result of the foregoing discussion is this: There must be a reasonable
connection between the act and the discharge of official duty; the act must bear such relation
to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that
he did it in the course of the performance of his duty. 28

Their Lordships then proceeded to consider the stage at which the need for sanction under
Section 197(1) of the Code had to be considered. Their Lordships stated that the question
may arise at any stage of the proceedings. The complaint may not disclose that the act
constituting the offence was done or purported to be done in the discharge of official duty;

27
Darshan Kumar v Sushil kumar Malhotra, 1980 CrLJ 154 (HP); Lumbhardar Zutshi, (1949) 52 Bom LR 480.
28
P. Palanisamy v. Shenbagathothem Rasidents’ Association, 2002 CrLJ 704 Mad.

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but facts subsequently coming to light on a police or judicial inquiry or even in the course of
the prosecution evidence at the trial, may establish the necessity for sanction. Whether
sanction is necessary or not may have to be determined from stage to stage. The necessity
may reveal itself in the course of the progress of the case.29

LIMITATIONS IN THE PROVISION

The provisions contained in Section 197 should neither be too narrowly construed nor too
widely. It is not the „duty‟ which requires examination so much as „act‟ because the official
act can be performed both in discharges of the official duty as well as in dereliction of it.

In the case of Shreekantiah Ramayya Munipalli v. State of Bombay30 their lordships were of
the opinion that if Section 197 of the Code of Criminal Procedure is construed too narrowly it
can never be applied, for of course it is no part of an officials‟ duty to commit an offence and
never can be. But it is not the duty we have to examine so much as the act, because an official
act can be performed in the discharge of official duty as well as in dereliction of it. The
section has content and its language must be given meaning. What it says is that when any
public servant 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. We have therefore first to
concentrate on the word „offence‟. Now an offence seldom consists of a single act. It is
usually composed of several elements and, as a rule; a whole series of acts must be proved
before it can be established. Therefore, whatever the intention or motive behind the act may
have been, the physical part of it remained unaltered, so if it was official in the one case it
was equally official in the other, and the only difference would lie in the intention with which
it was done: in the one event, it would be done in the discharge of an official duty and in the
other, in the purported discharge of it. This Court therefore held in that case that Section 197
of the Code of Criminal Procedure applied and sanction was necessary and since there was
none, the trial was vitiated from the start.

Further in the case of Amrik Singh v. State of Pepsu31 also the court gave the meaning and
interpretation of the section. ApexCourt after referring to the decisions of the Federal Court
and the Privy Council referred to earlier and some other decisions summed up the position
thus:

29
Matajog Dobey v. H.C. Bhari, (1955) 2 SCR 925 = AIR 1956 SC 44.
30
Shreekantiah Ramayya Munipalli v. State of Bombay, (1995) 1 SCR 1177 = AIR 1955 SC 287.
31
Amrik Singh v. State of Pepsu, (1995) 1 SCR = AIR 1955 SC 309.

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 “It is not every offence committed by a public servant that requires sanction for
prosecution under Section 197(1) of the Code of Criminal Procedure; nor even
every act done by him while he is actually engaged in the performance of his
official duties; but if the act complained of is directly concerned with his official
duties so that, if questioned, it could be claimed to have been done by virtue of the
office, then sanction would be necessary; and that would be so, irrespective of
whether it was, in fact, a proper discharge of his duties, because that would really
be a matter of defence on the merits, which would have to be investigated at the
trial, and could not arise at the stage of the grant of sanction, which must precede
the institution of the prosecution.

In our judgment, even when the charge is one of misappropriation by a public

servant, whether sanction is required under Section 197(1) will depend upon the
facts of each case. If the acts complained of are so integrally connected with the
duties attaching to the office as to be inseparable from them, then sanction under
Section 197(1) would be necessary; but if there was no necessary connection
between them and the performance of those duties, the official status furnishing
only the occasion or opportunity for the acts, then no sanction would be required.”

In the case of Rakesh Kumar Mishra v. State of Bihar32 the court has strictly interpreted the
scope of the section and further reduced the circumstances where the sanction of the
competent authorities will be required and as to what constitutes as the official duty of the
public servant. The court was of the opinion that the section has, thus, to be construed strictly,
while determining its applicability to any act or omission in the course of service. Its
operation has to be limited to those duties which are discharged in the course of duty. But
once any act or omission has been found to have been committed by a public servant in the
discharge of his duty then it must be given liberal and wide construction so far its official
nature is concerned.

In Rajkumar Anandilal v. State of Maharashtra33, a member of Railway Police Force had

fired at and killed a person trying to steal railway property. The limitations regarding classes
of public servants covered under Section 197 (1) would govern all the categories of public
servants including those covered by Section 197 (2) and Section 197 (3) of the Code. As the

32
Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557 = (2006) 1 SCC (Cri. 432.
33
Rajkumar Anandilal v. State of Maharashtra, 2005 CriLJ 4665.

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accused was not a person who was removable from his office save by or with the sanction of
Government, therefore, Section 197 was not attracted and sanction to prosecute was not
necessary in this case.

The Supreme Court in State of U. P. v. Paras Nath Singh34 held that sanction for prosecution
under Section 197, Cr. P. C. restricts its scope of operation to only official duty. The use of
the expression, „official duty‟ implies that the act or omission was done by the public servant
in the course of his service and that it should have been in the discharge of his duty.

The sanction required under the section does not extend its protective cover to every act or
omission done by the public servant in service. Thus in State of M. P. v. Sheetla Sahai35, the
Engineers of the PWD Deptt. were charged for corruption in making payments to the
contractors for construction of a dam. Held, each one of the respondents including retirees
were found to be performing his official duties and therefore sanction for their prosecution
under Section 197, Cr. P. C. was necessary.

In order to attract Section 197 of the Code, it is necessary that the accused person must have
committed the offence while acting or purporting to act in the discharge of his official duty. It
is not every offence committed by a public servant which requires sanction for prosecution
under Section 197(1) of the Code, nor even every act done by him while he was actually
engaged in the performance of his official duties. But, if the act complained of is directly
concerned with his official duties so that, if questioned, it could be claimed to have been done
by virtue of the office, then sanction would be necessary and that would be so, irrespective of
whether it was in fact a proper discharge of his duties or not.

Therefore, we see that the intention behind the section 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 official concerned. The
purpose of this provision is the protection of the public servant without denying the civilians
any rights or remedies and thus, finding a balance between the two.

34
State of U. P. v. Paras Nath Singh, 2009 (8 ) SCR 85.
35
State of M. P. v. Sheetla Sahai, ( 2009 ) 8 SCC 617.

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 CHAPTER IV

CONCLUSION

A public servant is answerable for his misconduct, which constitute an offence against the
state of which he is a servant, and also liable to be prosecuted for violating the law of the
land. However, certain ease in provide in the regard of prosecution of public servants and
judges owing to their duties and field of work. Time and time again the Supreme Court has
emphasised the need for the particular section in order to protect the interest of the judges and
public servants from any frivolous complaints and unnecessary harassments. The provision is
very much necessary in order to protect the interest of the public servants and judges as
otherwise they would be involved in frivolous cases and will be unable to do their duty
properly.

The researcher in the course of the research has found that great relaxation has been provided
in the interpretation of the official duty thus relaxing the need for the sanction as well.

The need for sanction by competent authority for the prosecution of judges and public
servants has been strictly interprets and with the recent amendment of 2013 many exception
have been made in which case the public servant cannot be said to have acted in the course of
his official duty and therefore cannot claim protection from the provision of section 197 of
the CrPC. The aim of this section is to provide relief and protection to honest public servant
from wrongful and vexatious proceedings and not to provide shelter to public servant who
abuse their powers and use their position in order to exploit others and such gainst capricious
officials who may indulge into excesses in the garb of their official duty. Such persons who
have not acted in a manner which is otherwise not legal cannot escape justice because the
competent authority on seeing reasonable proof of their folly must grant the sanction for
prosecution.

The Supreme Court has also restricted the meaning as to hat acts will not be included in the
official duty of the public servant and excess of power and acting outside the realm of his
prescribed duties denies him protection under this section. While the grant of sanction by the
competent authority might take time it such e taken in to consideration that as previous

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mentioned , while the proceeding cannot be started without a sanction there is no bar fro the
complaint to be examined.

Therefore, the researcher would like to conclude this research project with the view that the
provisions and the case laws in the recent times have evolved so as to find a better balance
between the rights of the citizens vis-à-vis the privilege to the public servants, granting
relaxation in terms of citizens so that they are not exploited by the public servants and that
the public servants are not harassed by the vexed citizens.

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 BIBLIOGRAPHY
Statutes
 The Constitution of India
 The Code of Criminal Procedure, 1973
 The Prevention of Corruption Act, 1988
 Lokpal and Lokyuktas Act, 2013

Books
 R.V. Kelkar, THE CODE OF CRIMINAL PROCEDURE (Eastern Book Company, 6 th
edn., 2016)
 K.D. Gaur, THE CODE OF CRIMINAL PROCEDURE , (Universal Law Publishing, 1 st
edn. 2016)
 Ratanlal and Dhirajlal THE CODE OF CRIMINAL PROCEDURE (B M Prasad and
Manish Mohan ed., Lexis Nexis, 21st edn. 2014)
 S.N. Mishra, THE CODE OF CRIMINAL PROCEDURE (Central Law Publications,
20th edn., 2016)

Other Sources
 41st Law Commission Report by Law Commission of India
 Judgements of Supreme Court
 Newspapers

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