BA LLB RESEARCH PAPER (CrPC)

(2019-2024)

PROSECUTION OF JUDGES AND PUBLIC SERVANTS – SECTION 197,

CrPC

SUBMITTED BY

Ashish Kumar

BA LLB (Honors)

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 INTRODUCTION

The Code of Criminal Procedure (hereinafter CrPC) is a substantive law which aids in providing
machinery for the trial and prosecution of accused of offences under the Indian Penal Code or
other Statutory Offences. One of the primary objectives of the Code is to ensure that an accused
person is not deprived of their fundamental rights while in the process of trial. It ensures that an
accused gets a full and fair trial along certain well established and well under stood lines that
accord with notions of natural justice. The same can be derived from the fact the that Indian
Criminal System works on the principle of Innocent unless proven guilty.

CrPC ensures that there is maximum possibility of ensuring a speedy trial and at the same time
ensures that the accused has been given a chance to be heard. Running from the principle of
innocence, the Code protects the rights of the accused thus invariably protecting them from the
atrocities of the process of investigation and custody. Furthermore, the Code also protects to
right of the accused to seek remedy and in detail possesses the jurisdiction of the Criminal Courts
of the Country.

In addition to protecting the rights of the accused and the aggrieved, The Code also puts down
the duties of all the officials in relation to the Criminal Justice System. The primary role in the
same can be attributed to the Police in the Country. Further, the roles and duties of the judges too
have been mentioned in detail.

Thus, it can very well be concluded that CrPC is the driving force of the Indian Criminal Justice
System. While the substantive law defines various crimes, it is this procedural law which shows
direction to the people as to what they must do in case they are victims of such crime or have
been accused of committing an offence.

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SECTION 1971 OF THE CrPC, 1973

The section at hand deals with the Prosecution of Judges and Public Servants. The proviso
provides a restriction on the courts to not be able to take cognizance of alleged offences to have
been committed by a former or present Judge, Magistrate or a Public Servant who are not
removal from their office except on sanctions of State or Central Government. The factors which
enable the perusal of the section and the analysis of the same is as follows:

Section 197(1) extends three-fold i.e., to Judges; Magistrates and to Public Servants. While who
constitutes as Judge and Magistrate is clear by the virtue of semantics, the definition of Public
Servants has been laid down by external sources. The definition is primarily derived from
Section 21 of the Indian Penal Code (hereinafter IPC). 2 Furthermore, Public Servants here is
limited to officials of higher grade exclusively in the hands of which exists onerous duties and
higher threshold of responsibilities.3 The constitutional validity of the aforementioned protection
was challenged in the case Matajog Dobey v/s HC Bhari,4 the conclusion of which was the
upholding of the proviso’s constitutionality on the grounds that Public Servants have to be
protected from harassment in discharge of official duties, a peril that is not faced by ordinary
citizens. The section at hand is instated for ensuring that Public Servant in charge of onerous
duties fulfils the same without the apprehensions of false, vexatious or mala fide prosecutions. 5
However, the protection is contingent on the absence of sanction by State or Central
Government. The presence of the same dissolves the protection extended to officials.

A sanction is granted by the authority which holds the power to remove the Public Official from
their position. The same is not on legal basis but on prima facie facts which if found that the act
or omission for which the accused was charged had reasonable connection with discharge of his
duty then it must be held to be official to which applicability of Section 197 of the Code cannot
be disputed. In the Bhari case, it was held that “question of sanction may arise at any stage of
proceedings or may have to be determined from stage to stage.” 6 However in Mohammad Iqbal

1
Section 197, Code of Criminal Procedure, 1973.
2
R.V Kelkar, Criminal Procedure, EBC, 2014.
3
41st Report, Law Commission of India, Pg 119.
4
Matajog Dobey v/s HC Bhari, AIR 1956 SC 44.
5
Supra 3, Pg. 116.
6
Matajog Dobey v/s HC Bhari, AIR 1956 SC 44.

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Ahmed v/s State of Andhra Pradesh, 7 it was held that a case constituted without a proper and
prior sanction shall render the proceedings as void-ab-initio.

Section 197(2) extends the aforementioned protection to member of the Armed Forces of the
Union with the same requirements as abovementioned. Section 197(3) addresses the rightful
authority of government in cases of Armed forces at times of emergency declared under article
3568 of the Constitution. Furthermore, Section 197(4) grants the government complete discretion
in laying down the method of trial and the Court before which the trial is to be held to ensure that
dignity of high placed government servant is maintained and that he is not compelled to undergo
the embarrassment of a trial by junior an inexperienced Magistrate.9

CASE ANALYSIS – MANSUKHLAL CHAUHAN v/s STATE OF

GUJARAT10

FACTS OF THE CASE

The case at hand is an appeal filed by a Class III Post Divisional Accountant, Mansukhlal
Chauhan, who was prosecuted for offences under Section 16111 IPC and Section 5(2)12 of the
Prevention of Corruption Act and was ultimately convicted by the Trial Court which was upheld
by the High Court. The facts involved one Mr. Harshadrai Laljibhai Kalathia who was awarded
the contract for constructing a dam. In the pursuance of the same there needed a transaction to be
made to the contractor however a sum was demanded by the present appellant for the same. Mr.
Harshadrai reported the matter to the Deputy Director (Anti-Corruption), who by the means of a
trap caught the appellant accepting the gratification. As opposed to the investigation that was
being carried out, the present appellant submitted an application for investigation by an
independent officer. The fresh report was sent to the Vigilance Commission on the basis of
which the Secretary wrote to the Government to grant sanction for prosecution as there existed
prima facie case. However, the same was not done immediately and meanwhile the matter
escalated to the High Court wherein the appellant was convicted and the writ of Mandamus was

7
Mohammad Iqbal Ahmed v. State of Andhra Pradesh, AIR 1982 SC 1249.
8
India Const., art. 356.
9
41st Report, Law Commission of India, Pg 120.
10
Mansukhlal Chauhan v/s State of Gujarat, (1997) 7 SCC 622.
11
Section 161, Indian Penal Code,
12
Section 5(2), Prevention of Corruption Act, 1988.

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issued for the Government to issue sanction within a month. The Secretary, acting in pursuance
of the order of the High Court, granted the sanction.

ARGUMENTS ADVANCED

The counsel on behalf of the appellant contended the proceedings in both Trial and Hight Court
to be set aside owing to the absence of a valid sanction thus negating the jurisdictions of the said
courts to take cognizance of the alleged offence, much less try them.

As Opposed, the counsel on behalf of State of Gujarat contended for the sanction to be valid and
that the judgment passed by the High Court cannot be questioned in these proceedings as it had
become final.

ISSUES

a. If in the present case, the sanction issued by the Government was valid.
b. If the Courts can direct an administrative action.

RATIO

The Supreme Court in the judgement laid down that the Court does not have the expertise to
correct the administrative decision and that the same merits only when the action of the
administrative authority is so unfair or unreasonable that no reasonable person would have taken
that action. Keeping this in mind, the Court laid down that the issuance of the sanction by the
secretary was coerced as the judgment gave him no choice except to sanction the prosecution as
any other decision would have exposed him to action in contempt for not obeying the mandamus
issued by the High Court. Thus, deeming the same as ultra vires the powers of the Court
according to Section 6 of The Prevention of Corruption Act (hereinafter PCA), 13 the Supreme
Court denied the legality and validity of the sanction and rendered the proceedings to be void ab
initio. Thus, the appeal was allowed.

ANALYSIS

The Supreme Court was right in upholding the discretionary powers of the Government owing to
the provision under Section 197, by the virtue of being analogous to Section 19 14 of the

13
Id., Section 6.
14
Section 19, Prevention of Corruption Act, 1988.

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Prevention of Corruption Act, which explicitly warrants only the Government to have the
discretion over granting sanctions. It is to be noted that protection under Section 197 is extended
only if there exists a reasonable nexus between the official duties and the alleged offence
committed.15 The offence of accepting bribe cannot be regarded as an act in the discharge of
official duties.16 The same was also held by the Privy Council. 17 Thus, by the virtue of Section
197, the case at hand would already have a different ratio. However, the sanctions in the case
have been looked at through the PCA,18 wherein there exists an additional provision which
protects the offence of Section 16119 of IPC under the ambit of sanction. This discrepancy
between analogous sections of 197, CrPC is something that persists.

Albeit the provisions of PCA protect the allegation of bribery to be subject to court cognizance,
in light of the recent Supreme Court judgements, it will be safe to conclude that the ratio in the
aforementioned case would still be different. In the case Vinod Kumar Garg v/s State
(GNCTD),20 the conviction for accepting gratification under Section 7 21 of the PCA was upheld
and it was laid down that “A mere error, omission or irregularity in sanction is not considered to
be fatal unless it has resulted in a failure of justice.” 22 Furthermore, in a recent judgement
pertaining Section 197 of CrPC, SHO, CBI/ACB/Bangalore v. BA Srinivasan & Anr.,23 the
Supreme Court observed that protection of sanction to public servants under Section 197 of the
Code of Criminal Procedure is not available where the acts are performed using the office as a
mere cloak for unlawful gains.

The aforementioned judgements evidently stray away form the psyche of Mansukhlal v/s State
of Gujarat,24 wherein a lot of importance was levied on the issuance of sanction. The Court
failed to strike a balance between protecting public servants from frivolous trials and the public
interest that corruption be eradicated. The facts albeit indicate the absence of sanction prior to
conviction, there is a clear indication of a prima facie reason for the Secretary to urge for

15
Amal Kumar Jha v. State of Chhattisgarh and Another. (2016) 6 SCC 734.
16
R.V Kelkar, Criminal Procedure, EBC, 2014.
17
AIR 1947 Cal 162
18
Section 19, Prevention of Corruption Act, 1988.
19
Section 161, Indian Penal Code, 1860.
20
Vinod Kumar Garg v/s State (GNCTD), (2020) 2 SCC 88.
21
Section 7, Prevention of Corruption Act, 1988.
22
Vinod Kumar Garg v/s State (GNCTD), (2020) 2 SCC 88, Para 20.
23
SHO, CBI/ACB/Bangalore v. BA Srinivasan & Anr., (2020) 2 SCC 153.
24
Mansukhlal Chauhan v/s State of Gujarat, (1997) 7 SCC 622.

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sanction as the appellant was reported to have resorted to acceptance of gratification not on one
instance but also under the independent investigation that was undertaken at the request of the
appellant. While it cannot be discussed within the ambit of this paper if the appellant would be
convicted, the protection under the pretext of absence of sanction would have been different in
light of the aforementioned recent judgements.

CONCLUSION

As mentioned before, immense importance must be accorded to strike a balance between

protecting public servants from frivolous trials and the public interest that corruption be
eradicated. It is the lack of this aspect which was elucidated in the Masukhlal case and the
recognition of instating the aspect, elucidated in the recent Supreme Court Judgements. Thus,
amendment to this section must be in pursuance to achieve this goal.

The original intent for instating this section was to ensure the protection of Public Officials from
frivolous trials on actions they have carried out in pursuance of their official duty. It is this intent
that is potentially threatened with the introduction of analogous sections in other legislations.
Section 525 of CrPC makes it clear that any provisions in CrPC would not affect any special or
specific local laws, till they enforced, if that provision is contrary to CrPC. In the case V.C.
Chinnappa Goudar v. Karnataka State Pollution Control,26 the two applicable provisos were
that of Section 197 of CrPC And Section 4827 of Water Prevention & Control Act. While the
former guaranteed protection to Public Officials, the later did not and by the virtue of Section 5
of CrPC, no protection was granted to the said Public Officials. An anti-thesis to the
aforementioned problem has already been mentioned wherein protection is extended to officials
alleged to have accepted gratification if in case the applicable provisions at hand would be
Section 197, CrPC and Section 19, PCA owing to the superseding of PCA over CrPC. Thus,
there must exist minimal discrepancy between analogous sections of 197, CrPC.

Another possible inclusion in pursuance of striking a balance can be inclusion of specific time
limit in the issuance of sanction by the Government. The current provision grants absolute
discretion to the Government to authorize sanctions and as seen in the case of Mansukhlal v/s

25
Section 5, CrPC, 1973.
26
V.C. Chinnappa Goudar v. Karnataka State Pollution Control, (2015) 14 SCC 535.
27
Section 48, Water Prevention & Control Act, 1974.

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State of Gujarat, an order from the court asking the government to issue sanctions is held to be
ultra vires the jurisdiction of the court. Thus, effectively there exists no time limitation on the
Government to issue sanction which in turn could lead to the delay of the trial of the accused
Public Official indefinitely. Thus, adopting provisions from the analogous PCA, a specified time
limit for the issuance of sanction by the Government must be formalized. 28 Non conformity to
the timeline would automatically amount to issuance of sanction which would enable the court to
start the trial against the accused official.

A final semantic amendment that could be brought in is the rightful authority issuing sanctions
for Judges and magistrates as Central/State Government are not authorized to do so as the test for
the same is the power to terminate them from their Duties. The same is done through
Constitutional Provisions not the Central/State Government.29

28
Dr. Subramanaan Swamy v/s Dr. Manmohan Singh and Anr, AIR 2012 SC 1185.
29
Advocate General, A.P., Hyderabad v. Rachapudi Subba Rao, (1991) Cr LJ 613.

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REFERENCES

STATUTES & REPORTS

 Code of Criminal Procedure, 1973.

 Indian Penal Code, 1860.
 Constitution of India, 1950.
 Prevention of Corruption Act, 1988.
 Water Prevention & Control Act, 1974.
 41st Report, Law Commission of India, 1969.

BOOK

 R.V Kelkar, Criminal Procedure, EBC, 2014.

JOURNALS

 Biplab Kumar Lenin, Sanctions for Prosecution of Public Servants: A Necessary Evil.,
Manupatra.
 S.S. Upadhyay, Legal Bars of Prosecution of Public Servants.

CASES

 Matajog Dobey v/s HC Bhari, AIR 1956 SC 44.

 Mohammad Iqbal Ahmed v/s State of Andhra Pradesh, AIR 1982 SC 1249.
 Mansukhlal Chauhan v/s State of Gujarat, (1997) 7 SCC 622.
 Amal Kumar Jha v/s State of Chhattisgarh and Another. (2016) 6 SCC 734.
 Vinod Kumar Garg v/s State (GNCTD), (2020) 2 SCC 88.
 SHO, CBI/ACB/Bangalore v/s BA Srinivasan & Anr., (2020) 2 SCC 153.
 V.C. Chinnappa Goudar v/s Karnataka State Pollution Control, (2015) 14 SCC 535.
 Dr. Subramanaan Swamy v/s Dr. Manmohan Singh and Anr, AIR 2012 SC 1185.
 Advocate General, A.P., Hyderabad v/s Rachapudi Subba Rao, (1991) Cr LJ 613.