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Saturday, July 24, 2021

Supreme Court on Section 197 of CrPC

 

INTRODUCTION

 

On today’s show, we will discuss the case of Indra Devi v. State of Rajasthan & Another, Criminal Appeal No. 593 of 2021, wherein the Hon’ble Supreme Court discussed Section 197 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) that deals with sanction or permission for prosecution of public servants.

 

BACKGROUND

 

Briefly speaking, an FIR was lodged against certain Public Servants/Government Officers claiming certain irregularities at their behest. This was done without obtaining prior sanction from the Government Department of the Public Servants. Out of the three Public Servants, two were accorded protection under Section 197 of CrPC, but one of the Public Servants /Appellant moved an Application under Section 197 of CrPC claiming protection from prosecution that was dismissed by the Court on the ground that he failed in his duties in reporting about the irregularities to his superiors. Section 197 of CrPC provides that when a public servant is accused of commission of any offence while acting in discharge of his duties, then the Courts shall take cognizance of such offence only after sanction for prosecution has been accorded in this regard by the Government. The Court examined the circumstances under which the sanction under Section 197 of CrPC is mandatory. Let us discuss the pertinent observations by the Court.

 

OBSERVATIONS BY THE COURT

 

Firstly, the Court observed that “Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority.”

 

Secondly, the Court noted that public servants have been granted such special protection to shield them from malicious or vexatious prosecutions; however, such shield cannot be used to protect the corrupt officers and if a Public Servant dishonestly indulges in cheating or fabrication of records, then such act cannot fall within the ambit of discharge of their official duty.

 

Thirdly, the Court laid down the test for deciphering whether an act falls within the ambit of discharge of official duty or not. According to the Court, the alleged act or omission of the Public Servant must have a reasonable or direct connection with the discharge of his official duties, in order to attract requirement of obtaining prior sanction under Section 197 of CrPC.

 

Fourthly, the Court also discussed the role of the Accused Persons and the Public Servants in commission of the alleged offence and found out that there were multiple public servants involved in commission of the alleged crime in the present case and except one Public Servant, the others have been accorded protection under Section 197 of CrPC.

 

Fifthly, the Court observed that when the role of the Appellant in commission of the alleged offence is similar to that of the other Public Servants who have been accorded protection under Section 197 of CrPC, then the Appellant who is also a public servant is also entitled for a similar level of protection and “the sanction from competent authority would be required to take cognizance.”

 

HELD BY THE COURT

 

Therefore, upon cumulative consideration of facts and circumstances, the Hon’ble Supreme Court held that sanction under Section 197 of CrPC would be required before triggering any prosecution against the Appellant.

 

That was all about the case. So, what are my concluding remarks?

 

CONCLUSION

 

Section 197 of CrPC is a statutory protection accorded to the Public Servants that must be respected by the Prosecution Agencies. But equal regard must be given to the fact that whether the alleged act is done during the discharge of official duties or not. Suppose a Public Servant commits murder of some person at his home, then such act of the Public Servant would not be saved by Section 197 of CrPC and no previous sanction in such cases would be required. On another note, I feel that Section 197 of CrPC is a relic of colonial past. Though it is true that the Public Servants require some degree of protection from malicious prosecution but what is equally true is that in the garb of Section 197 of CrPC, those Public Servants who are real culprits must not be left scot-free. In my humble opinion, it would be much better if the legislature amends Section 197 of CrPC and replaces the requirement of previous sanction with post-sanction. I am suggesting this because we must learn to trust our investigating agencies. Suppose such an amendment does take place, then if an offence is committed by a Public Servant, its investigation must reach conclusion and technical barriers like Section 197 of CrPC ought not to come in its way. The sanction for prosecution could be granted by the Government during the time the investigating is taking place and even if sanction is not to be granted by the Government, the same could be made clear.

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