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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