Section 197 of the Code of Criminal Procedure provides that if any person who is a past or present Judge, or Magistrate or public servant not removable from his office without the sanction of the Government, is accused of any offence alleged to have been committed by him while acting in the discharge of his official duties, no Court can take cognizance of such an offence, except with the previous sanction—
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(a) Of the Central Government:
In the case of a person who is employed (or, as the case may be, was at the time of commission 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;
(b) Of the State Government:
ADVERTISEMENTS:
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. If, however, a Proclamation under S. 356(1) of the Constitution is in force in that State, the previous sanction of the Central Government will be necessary.
Similarly, it is provided that no Court can take cognizance of any offence alleged to have been committed by any member of the Armed Forces of India, while acting in the discharge of his official duties, except with the previous sanction of the Central Government.
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 for which, such Judge, Magistrate or public servant is to be prosecuted.
Previous sanction for prosecution is necessary only when the offence is committed at a time when the accused was engaged in his official duty. Thus, where a Magistrate wrote a letter to a District Judge, referring to an advocate as “a big gambler”, “a mischievous element”, and “rowdy”, it was held by the Supreme Court that the advocate could prosecute him without any sanction under S. 197. (Sambhu v. Krishnaswamy, 1983 Cr. L.J. 158)
ADVERTISEMENTS:
The Himachal Pradesh High Court has observed that in order to determine whether a public servant is entitled to the protection of S. 197, all that has to be seen is whether the act complained of was committed by him while discharging his official duty and that such an act had a reasonable connection with his official duty.
One safe and sure test would be to consider if the omission of that act could have made the officer answerable for a charge or dereliction of his official duties. A negative answer may not clinch the issue, but if the answer is in the affirmative, it can be said without any hesitation that the act was committed by him in discharge of his official duties. (Darshan Kumar v. Sushil Kumar Malhotra, 1980 Cr. L.J. 154)
Prosecution of Commissioner or Receivers (S. 197-A):
S. 197-A, which is in force only in the State of Maharashtra, provides that if any person who is a Commissioner or a Receiver appointed by the Court under the Civil Procedure Code, is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his functions as a Commissioner or Receiver, the previous sanction of the Court which appointed him, is necessary.