Legal provisions regarding prosecution of judges and public servants under section 197 of the Code of Criminal Procedure, 1973.
Section 197(1) of the Code of Criminal Procedure provides that when any person who is or was a Judge or Magistrate, or a public servant not removable from his office save by or with the sanction of the Government 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, no Court shall take cognizance of such offence except with the previous sanction;—
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(a) 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 the Union, of the Central Government;
(b) 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, of the State Government.
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However, where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression ‘State Government’ occurring therein, the expression ‘Central Government’ were substituted.
As per Section 197(4) of the Code, 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 or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted and may specify the Court before which the trial is to be held.
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Under the colour of office, official duty implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section 197, Cr. PC. has, thus, to be construed strictly while determining its applicability to any act or omission in course of service.
Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section 197 has to be construed narrowly and in a restricted manner.
But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official shall be construed so as to advance the objective of the Section 197 in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated.
For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But F.-17 if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefore then the bar under Section 197 is not attracted.
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Thus, if on facts, it is prima facie 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 cannot be disputed.
The object of Section 197 of the Code is to guard against vexatious proceedings against Judges, Magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution.
The prior sanction by the appropriate Government is an assurance to a public servant to discharge his official functions diligently, efficiently and honestly without fear or favour, without having haunt of later harassment and victimization, so that he would serve his best in the interest of the public.
Section 197 of the Code is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. The sanction of the Government is necessary for the prosecution of any Judge if a complaint is made against him.
The Central or State Government is not the competent authority for according sanction for the prosecution of a judge of the High Court under Section 197(1) of the Code because a High Court Judge cannot be removed by the Government as they are removed by a special procedure specified in Article 124(4) and (5) of the Constitution.
Officers of the State Electricity Board, officers of a public sector Bank are not public servants inasmuch as they can be removed from service without sanction of Government as they are not appointed by the Government and Section 197 of the Code is not applicable to them.
In order to attract Section 197 of the Code, it is necessary that the accused person must have committed the offence while acting or purporting to act in the discharge of his official duty. It is not every offence committed by a public servant which requires sanction for prosecution under Section 197(1) of the Code, nor even every act done by him while he was 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 or not.
The protection under Section 197(1) of the Code is needed as much after retirement of the public servant as before retirement. The protection given by Section 197(1) of the Code will become illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint.
Prosecution of members of armed forces:
Section 197(2) of the Code of Criminal Procedure provides that no Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
As per Section 197(3) of the Code, the State Government may, by notification, direct that the provisions of sub-section (2) of Section 197 of the Code shall apply to such class or categories of the members of the forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression ‘State Government’ were substituted.
According to sub-section (3-A) of Section 197 of the Code, notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
As per sub-section (3-B) of Section 197 of the Code, notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.
Armed forces of the Union include Central Reserve Police Force. The provisions of sub-sections (2), (3), (3-A) and (3-B) of Section 197 of the Code are for the protection of the members of the Armed Forces while acting or purporting to act in the discharge of their official duties. As in extreme cases the Armed Forces are employed for the maintenance of public order, a duty which in ordinary course falls on the police, sub-section (4) of Section 197 of the Code empowers the State Government in such cases to accord sanction.
The proceedings before Court-martial are of executive type and more administrative in nature, the Court-martial proceedings under the Army Act do not come under the provisions of Section 197 of the Code of Criminal Procedure.