This article is written by Yash Singhal from Vivekananda Institute of Professional Studies, New Delhi. This article is about the provision of prosecution of offences committed by public servants under the Code of Criminal Procedure, 1973 and how they are protected while discharging official duties.

Introduction

The Code of Criminal Procedure, 1973 is a statute that provides a procedure to be followed by the authorities in order to punish the accused charged with offences under the Indian Penal Code, 1860. The public authorities and the judiciary are the guardians of justice that are presumed to be non-biased while following the procedures established by law. Every individual in India is equal before the law and equally protected by law according to the provisions of the Constitution of India, to dismiss any sort of unequal treatment meted out to certain privileged persons.

The public servants and judicial officers have been kept out of the mandate of prosecution of offences committed while being in office. The procedural code provides a section particularly dealing with offences by these public servants in their official capacity.

Purpose of protection

The purpose of having such a clause is to let these officials work honestly without the threat of false charges levied on them by anyone. 

The parliamentarians are already protected from any court proceedings during their tenure under parliamentary provisions provided in the Constitution, similarly, these officials carrying out sovereign functions of the government are given special treatment for better equality driven administration. You may wonder who all are included within the scope of public servants for the purpose of this section? Or what are the landmark judgements under this clause? All of these are provided in this article.

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Scope of public servants 

Section 21 of the Indian Penal Code defines the scope of public servants in criminal law in India as:

• Any officer commissioned in the armed forces.
• Any judge who is empowered to discharge adjudicatory functions, either individually or through the body of members.
• Officers of the court with the responsibility to investigate and report on the matters of law, authenticate information or provide relevant details and any such duties empowered by the court on its officials.
• All jurymen, panchayat members, assessors who assist the court of justice.
• Any arbitrator to whom the matter is referred for decision by court of law.
• Persons who are empowered to place persons in confinement.
• Officers who are entrusted with the prevention of offences, provision of information of offences, bringing offenders to justice.
• Officers in charge of holding property by the government as part of their duty to make survey, assessment, or investigate and report on pecuniary interests of the government.
• Officer with the duty to hold, take or dispense property for assessment or levy taxes for the public good.
• Officer with the duty to amend electoral rolls and conduct elections.
• Any person with a task from the government in exchange for payment, as a public duty, or appointed in the service of authorities established under government acts.

All the provisions relating to the term ‘public servant’ would include all the officers enumerated above within the jurisdiction. They are the ultimate officials that cater to the public interests while carrying out government functions assigned to them by acts of government. The central and state public officials have been kept on an equal pedestal as to privileges against prosecution for offences committed in the office under the Code of Criminal Procedure, 1973. 

Prosecution of Public Servants and Judges

Section 197 of the Code of Criminal Procedure, 1973 provides with the provision wherein no court has the jurisdiction to take up cases against the prosecution of offences committed by public servants and judges. The offence committed must be while discharging their official duty, applying to a former or current judge or magistrate or public servant, who is barred from removal from office according to government sanctions. It extends to employees employed by the Central Government as well as the State Government at the time of the commission of the offence. 

The members of the armed forces of the Union that committed an offence have also been barred from cognizance by any court in India. The members of the state armed forces can be included in the special treatment clause through a State Government notification. The state armed forces serving the public purposes with proper maintenance of public security as specified by the government may be brought under the similar powers of the central government officials as to the provisions of the section.

Article 356 of the Indian Constitution that enables the power of the Central Government to impose State Emergency on the account of failure of state machinery, where the state administration is directly taken; under Central Government control, the State Government, as an expression, will be replaced with the Central Government for the purpose of this section. Any judge or armed forces member employed according to the State Government Act would be dealt with as a Central Government official with the imposition of Article 356 in the state.

The government has the power to determine the court of and the manner of trial of the offence for which the prosecution of the judge or public servant is to be conducted. 

Objective of the Section

Malicious Prosecution

The offence of malicious prosecution is a common occurrence against public servants and judges on the circumstances of non-compliance of these officials according to the demands of individuals. The refusal of biasness for individuals on accounts of social, economic, or political status by these officials calls for false charges by the individuals as means to threaten them from involving in practices that are contrary to the majority population. 

Malicious prosecution is intentional initiation of false charges against someone with the intention to dishonour the person and subject him/her to court proceedings for an offence they never committed. It is improper use of judicial machinery for personal vengeance and abuse the procedure established by law with malice intent. 

The Supreme Court while deciding numerous matters on the Prevention of Corruption Act, held that a public servant cannot claim the protection of sanction against prosecution. It was observed that the protection has turned into a matter of delayed prosecution in corruption cases. The fine distinction between the honest public servant framed maliciously and a corrupt official sanctioned protection under the section was made in this case. It depends on the facts of the case and the available evidence to reach a conclusion for the extent of protection provided to these officials while discharging official duties. The question over sanction may be raised anytime during the proceedings and the applicability of the sanctions needs to be determined from stage to stage.

In Dr. Subramanian Swamy vs Dr. Manmohan Singh and Anr. (2012) , it was decided by the Supreme Court that in order to have the public servants dispensing their official duty in a fair manner without prejudice, the threats of malicious prosecution shall be prevented in ways accepted by law. It, however, did not leave out the possibility of corruption in the public offices which forced the court to have provisions in the public interests. Article 14 of the Constitution of India that establishes the right to equality of all citizens is violated with special treatment to these public servants but is an exception to the provision as a means to protective discrimination. The procedural provisions are required to be etched out in such a manner as to advance the honesty and justice along with good governance against the aggravated corruption.

Landmark Judgments 

Scope of the Section

In K. Satwant Singh v. State of Punjab (1959), it was held by the Apex Court that the scope of Section 197 of the Code of Criminal Procedure, 1973 should be observed in the presence of certain offences that cannot by their nature be identified as being committed by the public servants while dispensing their official duties. An offence of accepting bribe under Section 161 of Indian Penal Code, 1860, is one where it cannot be said with surety that the offence has been committed, similar to the offence of cheating or abetment. The connection between the offence committed and the discharge of duties should be there, with cheating or abetment to cheating not connected with the official duty of any public servant. The offence committed during the course of performance of duties is only within the ambit of Section 197.

In R.R. Chari v. State of Uttar Pradesh (1951), it was held by the Supreme Court that the first part of the Section deals with non-removable public officers serving under government notification who were charged with the commission of an offence while discharging official duties, no court has the cognizance of taking criminal cases committed by such public servants. It was observed that the authorities shall be satisfied with the prima facie case for prosecution before actual prosecution commences. The primary function of Section 197(1) is to safeguard public servants from false prosecution.

Reasonable connection

In Matajog Dobey v. H.C. Bhari (1955), it was a case of appellant claiming that while conducting an investigation or research, the official of the Income Tax Department forcibly broke into the residence and searched all the drawers in the house. The appellant contended that he was tied up and beat up by the officials, the Magistrate issued process on prima facie case. The court observed that public servants pertaining to prosecution for an offence while discharging official duties have to be safeguarded from harassment and ordinary citizens do not need such protection. It was also decided that a reasonable connection as to discharging of duty and the act for which he is charged with no pretentious claims shall be present.

Sanction clause under the Section

In Baijnath And Ors vs State Of MP (2016), it was observed by the Supreme Court that all offences committed by public servants do not require sanction for prosecution under Section 197(1) of the Code of Criminal Procedure, 1973. Any act done while being engaged in official duties and could be claimed in virtue of its office would deem sanction as a necessary component. The quality of act if falling within the ambit of official duties, the protection is extended to the officials under the Section. When the nature of the offence is unrelated or not connected with the official duties of the public servant, the protection under the section does not arise. 

In R.S. Nayak v. A.R. Antulay (1984), it was held by the Apex Court in the matter of sanction clause under Section 197 of the Code of Criminal Procedure, 1973 that only the competent authority shall have the rights to remove public servants in cases of misuse or misrepresentation of office as they would have the necessary idea as to in what sense and in how much quantity has the office by the public servants abused. The authority responsible to issue sanction must take evidence and facts of the case, before any uninformed action. Sanction protects the public servants from mistreatment at the hands of malicious and malign prosecution to disregard these officials, therefore, the strict compliance with provisions of concerned authorities to issue sanctions is required. It is advisable to deliver power to competent authorities for the implementation of the sanction clause. The authorities have the ability to analyse evidence and facts related to the case to be placed before a judge for clarity over the honesty of the prosecution claims.

Exclusion of PSU employees

In a recent case (B.S.N.L v. Pramod V. Sawant, (2019) ), the Supreme Court dismissed an appeal from Bharat Sanchar Nigam Ltd (BSNL) against the decision of the High Court, to observe that prosecution of sanction under Section 197 would not be available for officers of the Public Sector Undertakings (PSUs) even though they fall within the scope of the definition of state under Article 12 of the Indian Constitution. 

The court held that the PSU officials would be subjected to receiving pensions on removal by Corporations or with approval from concerned ministry to initiate punitive action against the individual and this will not provide him with the status of a public servant under the provisions of this Section.

Conclusion

The public servants have been identified as those discharging public duties on the orders of the government. They have been provided protection from prosecution while they are dispensing official duties to safeguard them from malicious prosecution cases. It has been stated that the reasonable connection must be there in the offence committed and the discharge of official duties, and any act beyond this clause would call for prosecution. The concerned authorities have to be appointed to analyse relevant facts of the case along with available evidence to issue sanction before placing the matter in a court proceeding.

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