Introduction
Section 218 of Bhartiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) deals with prosecution of judges and public servants, specifically requiring prior sanction for taking cognizance of an offence allegedly committed while acting or purporting to act in discharge of their official duty. It also outlines the conditions under which a court can take cognizance of an offence alleged to have been committed by these individuals while working in their official capacities. Section 218 of BNSS corresponds to Section 197 of the Criminal Procedure Code, 1973 (“CrPC”). While its language largely remains the same, a significant addition is made in the first proviso to Section 218(1), which mandates that a sanction request must be decided within 120 days, failing which it will be deemed granted (“Time-bound consideration”). Another key change is introduced in the form of Section 223 of BNSS (corresponds to Section 200 of CrPC), which provides certain safeguards at the pre-cognizance stage which includes (i) opportunity of hearing for the public servant before cognizance is taken; (ii) report from the accused’s superior officer before prosecuting a public servant (“Opportunity”). These new additions underscore the necessity of explicit prior sanction before prosecuting public servants, aimed at enhancing the efficiency by cutting down the time limit and preventing frivolous litigation against the public servants. This Article provides a multifaceted analysis of Prosecution of a Public Servant under the old regime and as the new Section is yet to test the waters.
Object & Scope
The Sections both the old and the present regime are intended to safeguard against vexatious proceedings against judges, magistrates, public servants not removable from office except by or with the sanction of the government. The essential conditions to be satisfied for the application of prosecution are as follows: (1) Offence must be committed by a public servant; (2) Public servant must be employed in connection with the affairs of the Union or a State, is not removable from the office save by or with the sanction of the Central Government or the State Government; (3) Protection is only available when the alleged offence is reasonably connected with the discharge of the official duty and not merely a cloak for doing objectionable act; (4) No Court can take cognizance of an offence without previous sanction from the Government or sanctioning authority; (5) Competent authority must consider the sanction request within 120 days, failing which sanction is deemed to have been accorded. Therefore, it is not the essence of the section to protect every offence committed by a public servant while he was actually in performance of his official duties. The acts concerned must have direct connection with his official duties so that if questioned, it could be claimed to have been done by virtue of official duties and then only sanction would be necessary.
Procedure for prosecution:
a) Opportunity for Hearing: Opportunity to be given to the public servant to explain the situation leading to the alleged incident;
b) Call for report: Report to be obtained from Superior Officer of Public Servant containing the facts and circumstances.
Analysis:
Earliest Case:
Matajog Dobey v. H.C. Bhari1
The constitutional validity of Section 197 of CrPC came to be questioned on grounds of being violative of Article 14 of the Constitution of India. The Constitutional Bench of the Supreme Court observed that “15. Article 14 does not render Section 197 of Criminal procedure Code ultra vires as the discrimination is based upon a rational classification. 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.” The Supreme Court also placed reliance on the judgement of Gill v. R2 ., which observed as under:
“19. 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 performance of his duty”
Therefore, the acid test is to determine whether the public servant has acted in course of his official duty or under the colour of office, which must be determined on the facts of each case.
Now we proceed to analyse various judgements of the courts which have dealt with the various issue relating to the importance of sanction and the consequences in the absence of obtaining sanction by the prosecution.
Deemed Sanction:
Suneeti Toteja v. State of U.P and Another.3
The Supreme Court while analysing Section 197 of the Code, observed that the said section does not envisage a concept of deemed sanction and negated the contention of the prosecution and quashed the chargesheet of the summoning order issued by the court below.
It is also to be noted that Justice G.S Singhvi in the matter of Subramanian Swamy penned his concurring opinion and laid foundation for the guidelines of time limitation in the granting of sanction letter, which was later incorporated in the BNSS.
Concept of Deputation and Appointing Authority:
Central Bureau of Investigations v. Ramesh Chander Diwan4
The Legal issue framed by the Supreme Court in this case is “whether the High Court was right in holding that sanction under Section 197 of CrPC not having been obtained, the respondent should be discharged for the offences registered under Sections 120B and 420 of the IPC”.
The Court analysed the concept of Deputation in the field of public service and held that in the facts of the present case the prosecution failed to refer to any statutory rules that upon the accused assignment of deputation, disciplinary control over him is to transfer from the lending authority to the borrowing authority, where allegations have been levelled against the accused. Therefore, the protection of Section 197 of the Code is available only to such public servants, whose appointing authority is Central Government or the State.
Nexus between the act complained of and the officer’s official functions:
G.C. Manjunath & Ors v. Seetaram5
The Hon’ble Supreme Court observed that the protective umbrella of Section 170 of the Karnataka Police Act along with Section 197 of the Code, are not confined solely to acts strictly within the bounds of authority but extends to acts done ostensibly in excess of such authority, so long as there is a reasonable nexus between the act complained of and the discharge of official functions. Acts bereft of any reasonable nexus to official functions fall outside the ambit of this safeguard and do not attract the bar imposed under Section 197 of CrPC. The Court relying on the judgement from B. Saha v. M.S. Kochar6 observed that “any offence alleged to have been committed while in the line of duty or purporting to act in the discharge of his official duty”, can be interpreted narrowly as well as wide interpretation.
No Court shall take cognizance of such offence:
State of Orissa v. Ganesh Chandra Jew7
The Supreme Court while upholding the protective powers enshrined under Section 197 of the Code, held that the mandatory character of the prosecution afforded to a public servant is bought out by the expression “no court shall take cognizance of such offence except with the previous sanction”. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offense is absolute and complete.
Public Servant – protection continues after retirement:
Suraj Narain v. State8
The Court enumerated that the safeguard features of Section 197 of the Code, are still applicable to a person who is no longer a public servant at that time, but was in office when the offence charged was said to have been committed. It is the intent of the legislators that no official duty is to be faced with a vexatious proceedings purported in charge of the official duty. Even after retirement of a government servant, where a government servant is prosecuted in respect of act done prior to retirement, sanction under Section 197 of the Code is still necessary.
Degree of Discretion:
Amod Kumar Kanth v. Association of Victim of Uphaar Tragedy9
The Supreme Court held that the State performs its obligations and duties through its officers/public servants and every function performed by a public servant is ultimately aimed at achieving public welfare. These acts committed as functions of the State require a degree of discretion, in such circumstances, the courts must address, whether the officer was acting in the discharge of official duties. The Court observed that, when an officer acts under the purported exercise of official powers, they are entitled to protection under Section 197 of the Code.
Sanction not necessary for bribery:
P.V. Narasimha Rao v. State10
A public servant can only be considered to be acting or claiming to act in the discharge of official duties if the act in question falls within the legitimate scope of those duties. The key test for determining whether sanction is necessary is whether the public servant, if questioned, can reasonably assert that the act was performed in the course of his official duties. In cases where a public servant is charged under Section 120-B read with Section 161 IPC, such as for accepting bribes, the act cannot be justified as one done in the exercise of official functions. Therefore, no protection under Section 197 CrPC applies in such circumstances.
Honorary Post:
Samuel Rajendran Maisa v. K. Krishna Rao11
The High Court of Andhra Pradesh observed that persons holding offices as an ‘Honorary Post’ are not entitled of protection envisaged under Section 197 of the Code.
Prosecution of Minister, M.P., M.L.A:
R. Balakrishna Pillai v. State of Kerela12
The Court observed that a Minister of a State Government is a public servant, who is only removable only by State Government meaning thereby the Governor, hence falls under the ‘Public Servant’ under Section 197 of the Code and is eligible for protection.
Managing Director of Corporation:
Girish Chandra Patra v. M/s Pinakee Enterprises Pvt Ltd13
The High Court of Odisha observed that Section 197(1) of the Code applies only to such public servants who as are not removable from office save by or with the sanction of the State Government or of the Central Government. In other words, in order that the protection under the section may apply, the public servant must be removable from office only by or with the sanction of the State Government or the Central Government and not by any other authority. Further, the Petitioner was an Officer of the Indian Administrative Service, who was then functioning as the Managing Director of the Corporation, there can be little doubt that he comes within the category of public servants envisaged under Section 197(1) of the Code.
Nationalised Bank Employee – Sanction not necessary:
K. Ch. Prasad v. J. Vanalatha Devi.14
One of the contentions(s) that was raised is that after nationalisation of the bank, the appellant will fall within the definition of public servant and therefore Section 197 would be attracted. The Apex Court negated the said contention and observed that on perusal of Section 197, it is very clear that the said 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. Therefore, even if it is held that appellant is a public servant still provisions of Section 197 are not attracted at all. A contention was also raised that the competent authority who can remove the appellant from service derives his power under regulations and these 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.
Fraud, fabrication of records:
Z.U. Ahmad v. State of U.P.15
The High Court of Allahabad observed that where accused public servants were alleged to have fabricated records, commit fraud or misappropriation and as such offenses under Ss. 161, 167, 217, 218, 409, 467, 468 and 500 I.P.C. for their personal gain and not as part of their official duty, sanction under Section 197 of the Code, would not be required.
Relevant date for valid sanction:
Kewal Ram Chauhan v. Prithipal Singh.16
The High Court of Himachal Pradesh observed that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused.
Meaning of Official Duty:
S.B. Suna’s17
In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged.... The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.
Killing of person:
Sankaran Moitra v. Sadhna Das and Anr 18
The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197 (1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197 (1) of the Code could not be attracted.
Army Officer:
P.K. Choudhury v. Commander, 48 BRTF (GREF)19
A issue arose as to whether sanction under Section 197 of the Code was required wherein an Army officer had allegedly indulged in the offence punishable Under Section 166 Indian Penal Code - public servant disobeying law, with intent to cause injury to any person and Section 167 Indian Penal Code - public servant framing incorrect document with intention to cause injury. The Court observed that as the offences Under Sections 166 and 167 of the Penal Code have a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was prerequisite before the learned Judicial Magistrate could issue summons. The Court further rejected the contention that sanction was not required in view of the provisions of Sections 125 and 126 of the Army Act, which provided for a choice of the competent authorities to try an accused either by a criminal court or proceedings for court- martial. Section 126 provides for the power of the criminal court to require delivery of offender. The Court held that in case the competent authority takes a decision that the accused was to be tried by ordinary criminal court, the provisions of the Code of Criminal Procedure. would be applicable including the law of limitation and the criminal court cannot take cognizance of offence if it is barred by limitation. In case, the delay is not condoned, the court will have no jurisdiction to take the cognizance. Similarly, unless it is held that a sanction was not required to be obtained, the court's jurisdiction will be barred.
Conclusion
Public Servant occupies special legal position as the requirement of prior sanction serves as a vital safeguard for public servants, shielding them from vexatious litigation in the discharge of official duties. However, this protection is not absolute.
The test, therefore, always is-whether the act complained a reasonable connection with the discharge of official duties by the Government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, found on the bona-fide judgement of the public servant, the requirement of sanction will be insisted upon to act as filter to keep at bay any motivated, ill-founded and frivolous prosecution against the public servant. Judicial precedents have consistently emphasized that such immunity is limited to acts that bear a reasonable nexus with official functions. The shift from Cr.P.C. to BNSS brings a significant procedural transformation. The deemed sanction provision addresses longstanding issues of governmental inaction, enabling timely prosecution of public servants. However, there will be more question as the time progresses for instance the rights of the public servant against the deemed sanction. It is to be seen how these issues will be dealt with by the judiciary.
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Authors:
P Ravi Charan, Partner