10 Leading Decisions on Scope of Section 197 CrPC
Case Laws on Section 197 Cr.P.C.
- Sankaran Moitra v. Sadhina Das, (2006) 4 SCC 584
The law in this regard has been delineated by the Apex Court more particularly in paragraphs 12 to 21 thereof, after relying on some of the leading decisions on that point, which reads as follows:
- Shreekantiah Ramayya Munipalli v. State of Bombay [(1995) 1 SCR 1177 = AIR 1955 SC 287]
Now it is obvious 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 official’s 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– 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 wordoffence’.
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.
- Amrik Singh v. State of Pepsu [(1995) 1 SCR = AIR 1955 SC 309]
Apex Court 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: (SCR p. 1307)
“The result of the authorities may thus be summed up:
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.”
- Shreekantiah Ramayya Munipalli v. State of Bombay [(1995) 1 SCR 1177 = AIR 1955 SC 287].
Their Lordships quoted with approval the observations in the decision in Amrik Singh v. State of Pepsu [(1995) 1 SCR = AIR 1955 SC 309].
- Matajog Dobey v. H.C. Bhari [(1955) 2 SCR 925 = AIR 1956 SC 44]
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, this Court observed: (SCR pp. 931-32)
Section 107 “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.
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, Their Lordships stated: (SCR pp. 932-33)
“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.
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.”
Privy Council and that of Supreme Court, Their Lordships After referring to the earlier decisions of the Federal the summed up the position thus: (SCR pp. 934-35)
“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.”
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: (SCR p. 935)
“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; 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.”
- Pukhraj v. State of Rajasthan [(1973) 2 SCC 701 = 1973 SCC (Cri.) 944]
While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. 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.
Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty.
The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant.
Expressions such as the capacity in which the act is performed’,cloak of office’ and `professed exercise of the office’ may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.”
- B. Saha v. M.S. Kochar [(1979) 4 SCC 177 = 1979 SCC (Cri.) 939]
In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.
- Bakhshish Singh Brar v. Gurmej Kaur [(1987) 4 SCC 1988 SCC (Cri.) 29]
Apex Court stated that it was necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, and that is the rationale behind Section 196 and Section 197 of the Code. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted.
Protection of public officers and public servants functioning in discharge of their official duties and protection of private citizens have to be balanced in each case by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit.
- Rakesh Kumar Mishra v. State of Bihar [(2006) 1 SCC 557 = (2006) 1 SCC (Cri. 432]
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.
- Akbar IPS Vs. Anil [Kerala High Court, 25 May 2015]
Evaluating the present case in the light of the aforementioned legal principles, Court is of the considered opinion that sanction was required for the aforementioned reasons and therefore the considered decision taken by the Government in rejecting the grant of sanction as evident from Anx. V, would inevitably lead to the conclusion that the impugned criminal proceedings are liable to be interdicted by this Court. Otherwise, it would amount to abuse of process of court and leading to miscarriage of justice.