India: Sanction For Prosecution Of Public Servants: Law Revisited In The Light Of The Judgment "Inspector Of Police And Ors Vs Battenapatka Venkata Ratnam And Ors"

The Hon'ble Supreme court of India in the case titled as Inspector of Police and ors vs Battenapatka venkata Ratnam and ors [2015(5)SCALE253] have dealt with the question that whether sanction under section 197 of Cr.pc is required to initiate criminal proceedings against the public servant and can a public servant take shield to protect themselves when the criminal proceeding is initiated against the public servant for fraud, criminal conspiracy. The brief facts of the case are as under:-

  1. Whether sanction Under Section 197 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code of Criminal Procedure') is required to initiate criminal proceedings in respect of offences Under Sections 420, 468, 477A, 120B read with 109 of the Indian Penal Code (45 of 1860) (hereinafter referred to as 'Indian Penal Code'), is the question arising for consideration in these cases.
  2. The District Registrar, Vijayawada lodged a complaint with the Inspector of Police, CBCID Vijayawada on 07.07.1999. The main allegation against the Respondents was that while they were working as Sub-Registrars in various offices in the State of Andhra Pradesh, they conspired with stamp vendors and document writers and other staff to gain monetary benefit and resorted to manipulation of registers and got the registration of the documents with old value of the properties, resulting in wrongful gain to themselves and loss to the Government, and thereby cheated the public and the Government.
  3. On the basis of the complaint, F.I.R. No. 35/1999 was registered by the Appellant, and after investigation, report Under Section 173(2) Code of Criminal Procedure against 41 persons including the Respondents herein, was submitted before the III Additional Chief Metropolitan Magistrate, Vijayawada. The Respondents raised the objection that there was no sanction Under Section 197 Code of Criminal Procedure and hence the proceedings could not be initiated.
  4. Learned Magistrate on 03.07.2007 passed an order holding that:

    Whether the sanction is required Under Section 197 Code of Criminal Procedure or not to be considered during the trial and it is the burden on the complainant to prove that the accused acted beyond in discharge of their official duties and there is no nexus between the acts committed and their official duties and at this stage the question that the accused acted within their duties cannot be decided. Aggrieved, Respondents moved the High Court Under Section 482 Code of Criminal Procedure leading to the impugned order whereby the criminal proceedings were quashed on the sole ground that there was no sanction Under Section 197 Code of Criminal Procedure, and hence the appeals. After perusal of the arguments of both the sides; the Hon'ble Supreme Court was of the view that:
  5. No doubt, while the Respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them "while acting or purporting to act in discharge of their official duty" and that question is no more res integra. In Shambhoo Nath Misra v. State of U.P. and Ors. (1997) 5 SCC 326, at paragraph-5, this Court held that:

    The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.
  6. In Parkash Singh Badal v. State of Punjab and Ors. (2007) 1 SCC 1, at paragraph-20, this Court held that:

    20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.

    38. The question relating to the need of sanction Under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.
  7. In a recent decision in Rajib Ranjan and Ors. v. R. Vijaykumar (2015) 1 SCC 513, at paragraph-18, this Court has taken the view that...

    "even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted".
  8. Public servants have, in fact, been treated as special category Under Section 197 Code of Criminal Procedure, to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. In Subramanian Swamy v. Manmohan Singh and Anr.(2012) 3 SCC 64, at paragraph-74, it has been held that the provisions dealing with Section 197 Code of Criminal Procedure must be construed in such a manner as to advance the cause of honesty, justice and good governance. To quote:

    74. ...Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.
  9. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only.

CONCLUSION

The Hon'ble Supreme Court of India has rightly decided the question relating to the need of sanction Under Section 197 of the Code of Criminal Procedure, 1973 is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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