Section 197 of the Code of Criminal Procedure, 1973 provides that protection against the prosecution of Judges and Public Servants. The object and purpose underlying section 197 Cr. P.C. to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The larger interest of efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and undeterred by the apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities. (See Bhagwan Prasad Srivastava vs N. P. Misra decided on 20 April, 1970 – AIR 1661, 1971 SCR (1) 317)
The question that arises is whether all public servants come within the purview of the provision of Section 197 Cr.P.C.? In other words, in what cases the sanction under Section 197 Cr.P.C. is required and what are the classes of public servants who can take advantage of this section?
The provision Section 197 Cr.P.C. contains essential ingredients for its application:
- The accused must be a Judge or Magistrate or a Public Servant
- In case of a public servant, he must not be removable without the sanction of the Government and,
- the offence should have been committed by him while acting or purporting to act in discharge of his official duty
In this blog post, I shall be discussing the first two elements for attracting the provision Section 197 Cr.P.C.
Firstly, Section 197 Cr.P.C. does not provide shelter to all public servants. Section 197 Cr.P.C. provides protection only to those public servants, Magistrates and Judges who cannot be removed expect wit the sanction of the government. I would refer to a few precedents for easy understanding of this distinction.
The following is the extract from decision of the Supreme Court in K. Ch. Prasad v. J. Vanalatha Devi decided in the year 1986.
6. It is very clear from this provision that this section 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. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the government. In this view of the matter even if it is held that appellant is a public servant still provisions of Section 197 are not attracted at all.
7. It was contended by the learned counsel that the competent authority who can remove the appellant from service derives his power under regulations and those regulations ultimately derive their authority from the Act of Parliament and therefore it was contended that the regulations are framed with the approval of the Central Government but it does not mean that the appellant cannot be removed from his service by anyone except the Government or with the sanction of the Government. Under these circumstances on plain reading of Section 197 the view taken by the courts below could not be said to be erroneous. We therefore see no reason to entertain this appeal. It is therefore dismissed.
K. Ch. Prasad v. J. Vanalatha Devi, (1987) 2 SCC 52 : 1987 SCC (Cri) 297 at page 54
The question whether the acts done by a minster minister while discharging his official duty would fall within the ambit of Section 197(1) Cr.P.C. for the purpose of Apex Court in M. Karunanidhi v. Union of India (1979) 3 SCC 431 had referred to the decision of the decision of the High Court of Bombay in Namdeo Kashinath Aher v. H.G. Vartak (AIR 1970 Bom 385), subsequently referred in R. Balakrishna Pillai v. State of Kerala, (1996) 1 SCC 478:
“Whatever be the practical and actual position, the fact remains that it is the Governor who can accept the resignation of the Ministry or Minister and it is the Governor again who can dismiss or remove the Minister from office. Under Section 3(60) of the General Clauses Act, 1897, the word ‘State Government’ has been defined. Clause (c) of Section 3(60) is applicable to the present case and therefore the State Government is to mean the Governor for the purpose of the present case. The result therefore is that Accused 1 is a public servant who can be said to be removable only by the State Government, meaning thereby the Governor, and I do not find any difficulty in coming to the conclusion that the second requirement of Section 197, CrPC also is fully satisfied as far as Accused 1 is concerned.” Taking note of the provisions of Article 167 (Article 164 for Ministers), it was pointed out that the Chief Minister is paid from public exchequer for performing a public duty and is, therefore, a public servant within the meaning of Section 197 of the Code. So also a Minister of a State is paid from its public exchequer. He is paid for doing the duty entrusted to him as a Minister and, therefore, on the analogy of the observations relating to the Chief Minister, the Minister must also be held to be a public servant. Since he is appointed or dismissed by the Governor, he would fall within the expression “a public servant not removable from his office save by or with the sanction of the Government”. In the instant case, as pointed out earlier, by virtue of the provisions in the General Clauses Act, 1897 the expression ‘Government’ used in Section 197 would mean the Governor in the case of a Chief Minister or a Minister. That being so, we are of the opinion that a Minister would be entitled to the protection of Section 197(1) of the Code.
R. Balakrishna Pillai v. State of Kerala, (1996) 1 SCC 478 : 1996 SCC (Cri) 128 at page 481
Thus, the primary consideration for attracting 197 Cr.P.C. is that the accused must be a public servant, who is not removable from his office save by the sanction of the Government. Further, the act must have been committed during the discharge of his official duty.
For Easy understanding of the article, the relevant provision – Section 197 of the Code of Criminal Procedure, 1973 is extracted hereunder:
197. Prosecution of Judges and public servants.— (1) 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 4[save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]—
(a) in the case of person who is employed or, as the case may be, was at the time ofcommission 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 ofcommission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
1[Provided that 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.]
3[Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, 5[Section 376-A, Section 376-AB, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB] or Section 509 of the Indian Penal Code (45 of 1860).]
(2) 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.
(3) The State Government may, by notification, direct that the provisions of sub-section(2) shall apply to such class or category 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.
2[(3-A) 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.
(3-B) 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 ofAugust, 1991 and ending with the date immediately preceding the date on which the Codeof 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.]
(4) 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.
Corresponding Law: S. 197 of Act V of 1898.
STATE AMENDMENTS
Assam.— In the principal Act, for sub-section (3) of Section 197, the following sub-section shall be substituted, namely:—
“(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply—
(a) to such class or category of the members of the Forces charged with the maintenance of public order, or
(b) to such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or sub-section (2) apply] charged with the maintenance of public order,
as may be specified in the notification, wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if for the expression ‘Central Government’ occurring therein, the expression ‘State Government’ were substituted.” (President Act 3 of1980, S. 3 w.e.f 5-6-1980)
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Prior to amendment by Criminal Law (Amendment) Act, 2018 (Act 22 of 2018), Section197 read as:
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197. Prosecution of Judges and public servants.— (1) 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 4[save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]—
(a) in the case of person who is employed or, as the case may be, was at the time ofcommission 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 ofcommission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
1[Provided that 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.]
3[Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-C, Section 376-D or Section 509 of the Indian Penal Code (45 of 1860).]
(2) 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.
(3) The State Government may, by notification, direct that the provisions of sub-section(2) shall apply to such class or category 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.
2[(3-A) 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.
(3-B) 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 ofAugust, 1991 and ending with the date immediately preceding the date on which the Codeof 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.]
(4) 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.
Corresponding Law: S. 197 of Act V of 1898.
STATE AMENDMENTS
Assam.— In the principal Act, for sub-section (3) of Section 197, the following sub-section shall be substituted, namely:—
“(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply—
(a) to such class or category of the members of the Forces charged with the maintenance of public order, or
(b) to such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or sub-section (2) apply] charged with the maintenance of public order,
as may be specified in the notification, wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if for the expression ‘Central Government’ occurring therein, the expression ‘State Government’ were substituted.” (President Act 3 of1980, S. 3 w.e.f 5-6-1980)
_______________________________________________________________________
Prior to amendment by Act 1 of 2014, Section 197 read as:
_______________________________________________________________________
197. Prosecution of Judges and public servants.— (1) 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—
(a) in the case of person who is employed or, as the case may be, was at the time ofcommission 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 ofcommission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
1[Provided that 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.]
3[Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-C, Section 376-D or Section 509 of the Indian Penal Code (45 of 1860).]
(2) 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.
(3) The State Government may, by notification, direct that the provisions of sub-section(2) shall apply to such class or category 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.
2[(3-A) 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.
(3-B) 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 ofAugust, 1991 and ending with the date immediately preceding the date on which the Codeof 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.]
(4) 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.
Corresponding Law: S. 197 of Act V of 1898.
STATE AMENDMENTS
Assam.— In the principal Act, for sub-section (3) of Section 197, the following sub-section shall be substituted, namely:—
“(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply—
(a) to such class or category of the members of the Forces charged with the maintenance of public order, or
(b) to such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or sub-section (2) apply] charged with the maintenance of public order,
as may be specified in the notification, wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if for the expression ‘Central Government’ occurring therein, the expression ‘State Government’ were substituted.” (President Act 3 of1980, S. 3 w.e.f 5-6-1980)
____________________________________________________________
Prior to amendment by Act 13 of 2013, Section 197 read as:
____________________________________________________________
197. Prosecution of Judges and public servants.— (1) 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—
(a) in the case of person who is employed or, as the case may be, was at the time ofcommission 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 ofcommission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
1[Provided that 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.]
(2) 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.
(3) The State Government may, by notification, direct that the provisions of sub-section(2) shall apply to such class or category 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.
2[(3-A) 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.
(3-B) 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 ofAugust, 1991 and ending with the date immediately preceding the date on which the Codeof 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.]
(4) 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.
Corresponding Law: S. 197 of Act V of 1898.
STATE AMENDMENTS
Assam.— In the principal Act, for sub-section (3) of Section 197, the following sub-section shall be substituted, namely:—
“(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply—
(a) to such class or category of the members of the Forces charged with the maintenanc e of public order, or
(b) to such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or sub-section (2) apply] charged with the maintenance of public order,
as may be specified in the notification, wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if for the expression ‘Central Government’ occurring therein, the expression ‘State Government’ were substituted.” (President Act 3 of1980, S. 3 w.e.f 5-6-1980)
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1 Inserted by Act 43 of 1991, S. 2 (w.e.f 2-5-1991).
2 Ibid (w.e.f 2-5-1991).
3 Substituted by Act 13 of 2013, Section 18 (w.e.f 3-2-2013).
4 Inserted by Act 1 of 2014, Section 58 and Schedule (w.e.f 16-1-2014).
5 Subs. for “Section 376-A, Section 376-C, Section 376-D” by Act 22 of 2018, S. 15 (w.r.e.f 21-4-2018).
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