Supreme Court: What is Reasonable Connection Test with reference to S.197 CrPC?

 Interpretation of "Official Duty" - Reasonable Connection Test - Excess of Duty - Quality of the Act - The expression “acting or purporting to act in the discharge of official duty” must be interpreted to strike a balance—construing strictly for the scope of duties but liberally for the nature of the act once connected to official responsibilities. For Section 197 to apply, there must be a direct and reasonable connection between the alleged act and the official duty, such that the public servant can reasonably claim the act was performed in virtue of their office. Acts exceeding official duties may still attract protection if a reasonable nexus exists between the act and the official capacity. The quality of the act must be evaluated. An opportunity provided by an official position does not suffice unless the act is integrally connected to official duties.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 5267-5268 of 2024.

Decided On: 13.12.2024

Om Prakash Yadav Vs. Niranjan Kumar Upadhyay and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/1335/2024

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Bombay HC: Officers Appointed To Assess Electricity Theft Are 'Public Servants', Court Can't Issue Process Against Them Without Sanction U/S 197 CrPC

 Section 169 of the Electricity Act, 2003 which defines the term public servants in pursuance to Section 21 of the Indian Penal Code includes the servants or the employees under Section 126 of the Electricity Act, 2003. As discussed above, the Board has authorized various officers including the Junior Engineers and linemen to detect the theft. Hence, they are covered under the definition of public servants in Section 169 of the Electricity Act, 2003. Therefore, the Court is of the view that the learned Judicial Magistrate First Class erred in issuing the process against the petitioners without sanction as required under Section 197 of the Criminal Procedure Code. This issue was not dealt with at all. The impugned order also does not reflect the application of mind. Hence, the petition deserves to be allowed. {Para 22}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 744 OF 2008

 Syed Naeemuddin S/o Syed Khaja, Vs The State of Maharashtra.

 CORAM : S.G. MEHARE, J.

PRONOUNCED ON : SEPTEMBER 12, 2024.

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Bombay HC: Bar contained in S. 197, CrPC cannot be read into the provisions of a special legislation like SC/ST Atrocities Act

 The net result would be that when by virtue of explanation to Sub-Section 1 of Section 197 of the Code of Criminal Procedure, no previous sanction is required in respect of the offence punishable under Section 509 and when even no such sanction is required in respect of offence under the Atrocities Act, the perception of the Investigating Officer in treating the impugned decision as preventing him from filing any report and the stand of the State to that effect is grossly erroneous and unsustainable in law. When no previous sanction is required for carrying out investigation and filing a final report in respect of offence punishable under Section 509 of the Indian Penal Code and Section 3 of the Atrocities Act, the Investigating Officer is under statutory duty to submit a final report before the Special Court and the latter would not be debarred from taking cognizance thereof for want of sanction or because of the decision, not to accord the sanction. {Para 21}

24. In view of the above, we allow the writ petition partly as

under :

i. It is declared that no previous sanction as contemplated

under Section 197 would be necessary for carrying out

investigation and filing a final report in respect of offence

punishable under Section 509 of the Indian Penal Code and

Section 3 of the Atrocities Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.1401 OF 2021

Dr. Rekha w/o Gowardhan Gaikwad Vs  The State of Maharashtra

CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.

PRONOUNCED ON: 11.06.2024

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What is basic concept of Immunity to government servant from prosecution as per S 197 of CRPC?

 The concept of immunity for government servants from prosecution under the Code of Criminal Procedure (CrPC) is primarily governed by Section 197. It's important to understand that this is not absolute immunity, but rather a conditional safeguard against vexatious and frivolous complaints.

Here's a breakdown of the key points:

Who is covered?

• Judges and magistrates
• Public servants who cannot be removed from their positions without approval from the government

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Whether Nationalised Bank Employee is Entitled to get protection of S 197 CrPC ?

  The Appellant was serving as an Assistant General Manager, State Bank of India, Overseas Bank at Hyderabad. State Bank of India is a Nationalised Bank. Although a person working in a Nationalised Bank is a public servant, yet the provisions of Section 197 of the Code of Criminal Procedure would not be attracted at all as Section 197 is attracted only in cases where the public servant is such who is not removable from his service 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 alleged that the Appellant herein is a public servant, still the provisions of Section 197 of the Code of Criminal Procedure are not attracted at all. {Para 45}

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 the Appellant is a public servant still provisions of Section 197 are not attracted at all.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2339 of 2023 

Decided On: 08.08.2023

A. Sreenivasa Reddy  Vs. Rakesh Sharma and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/0842/2023.

Read full Judgment here: Click here

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Whether the court can try accused for offences under IPC if sanction for prosecution U/S 19 of Prevention of Corruption is not granted against accused?

 It was vociferously argued by the learned Counsel appearing for the Appellant that as sanction Under Section 19 of the PC Act, 1988 has not been granted, the Appellant cannot not be prosecuted for the offences under the Indian Penal Code alone and he should be discharged from the criminal proceedings.

{Para 51}

58. Thus, although in the present case, the Appellant has been discharged from the offences punishable under the PC Act, 1988 yet for the Indian Penal Code offences, he can be proceeded further in accordance with law.

59. From the aforesaid, it can be said that there can be no thumb Rule that in a prosecution before the court of Special Judge, the previous sanction Under Section 19 of the PC Act, 1988 would invariably be the only pre-requisite. If the offences on the charge of which, the public servant is expected to be put on trial include the offences other than those punishable under the PC Act, 1988 that is to say under the general law (i.e. Indian Penal Code), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction Under Section 197 of the Code of Criminal Procedure. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 of the Code of Criminal Procedure, on the other. In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant. In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction Under Section 197 of the Code of Criminal Procedure depends on the factual aspects. The test in the latter case is of the "nexus" between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction Under Section 197 of the Code of Criminal Procedure on such reasoning. The "safe and sure test", is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted "in excess of his duty", but if there is a "reasonable connection" between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the Code of Criminal Procedure cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2339 of 2023 

Decided On: 08.08.2023

A. Sreenivasa Reddy  Vs. Rakesh Sharma and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/0842/2023.

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Supreme Court: Protection Of Sanction U/s 197 CrPC is Not Available For Public Servants Prosecuted U/s 48 Water (Prevention and Control of Pollution) Act

 What emerges from these decisions of this Court

is:

a. If the violation of the provisions of the Water Act

was at the hands of a Department, subject to the

satisfaction of the requirements under Section 48

of the Water Act, “the Head of the Department” would

be deemed to be guilty. This would of course be

subject to the defences which are available to him

to establish whether the offence in question was

committed without his knowledge or that he had

exercised all due diligence to prevent the

commission of such offence.

b. By virtue of the decision of this Court in V.C.

Chinnappa Goudar (Supra), because of deeming fiction

under Section 48 of the Water Act, the protection

under Section 197 of the Code would not be available

and the matter ought to be considered de hors such

protection.

c. If the concerned public servant happens to be a

Chief Officer or Commissioner of a Municipal Council

or Town Panchayat, he cannot strictly be called “the

Head of the Department of the Government”.

Therefore, in terms of decision of this Court in B.

Heera Naik (Supra), the matter would not come under

Section 48 of the Water Act. But the matter would

come directly under Section 47 of the Water Act.

According to said decision, even in such cases, the

deeming fiction available under Section 47 of the

Water Act would dis-entitle the public servant from

the protection under Section 197 of the Code.{Para 17}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.599 OF 2021

NOORULLA KHAN  Vs KARNATAKA STATE POLLUTION

CONTROL BOARD

Author: UDAY UMESH LALIT, J

Dated: JULY 13,2021.

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Whether court can consider issue of sanction for prosecution of public servant at the stage of judgment?

 It has also been observed by this Court that, at times, the issue

whether the alleged act is intricately connected with the discharge of

official functions and whether the matter would come within the

expression ‘while acting or purporting to act in discharge of their official

duty’, would get crystalized only after evidence is led and the issue of

sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State

of Sikkim represented by the Central Bureau of Investigation13, this

Court stated:-

“15. Thus, from a conspectus of the aforesaid

decisions, it will be clear that for claiming protection

under Section 197 of the Code, it has to be shown by

the accused that there is reasonable connection

between the act complained of and the discharge of

official duty. An official act can be performed in the

discharge of official duty as well as in dereliction of

it. For invoking protection under Section 197 of the

Code, the acts of the accused complained of must be

such that the same cannot be separated from the

discharge of official duty, but if there was no

reasonable connection between them and the

performance of those duties, the official status

furnishes only the occasion or opportunity for the

acts, then no sanction would be required. If the case

as put forward by the prosecution fails or the defence

13 (2001) 6 SCC 704

establishes that the act purported to be done is in

discharge of duty, the proceedings will have to be

dropped. It is well settled that question of sanction

under Section 197 of the Code can be raised any time

after the cognizance; maybe immediately after

cognizance or framing of charge or even at the time of

conclusion of trial and after conviction as well. But

there may be certain cases where it may not be

possible to decide the question effectively without

giving opportunity to the defence to establish that

what he did was in discharge of official duty. In order

to come to the conclusion whether claim of the

accused that the act that he did was in course of the

performance of his duty was a reasonable one and

neither pretended nor fanciful, can be examined

during the course of trial by giving opportunity to the

defence to establish it. In such an eventuality, the

question of sanction should be left open to be decided

in the main judgment which may be delivered upon

conclusion of the trial.”

(underlined by us)

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO .1837 OF 2019

STATION HOUSE OFFICER, CBI/ACB/BANGALORE 

Vs  B.A. SRINIVASAN 

Dated:December 05, 2019.

Uday Umesh Lalit, J.

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Whether protection U/S 197 of CRPC is available to public servant after retirement?

However as regards charges for the offences punishable under the Indian Penal Code concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the POC Act, the protection Under Section 197 of Code of Criminal Procedure is available to the concerned public servant even after retirement. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2168 of 2010

Decided On: 17.12.2014

 State of Punjab Vs.  Labh Singh

Hon'ble Judges/Coram:

Dipak Misra and U.U. Lalit, JJ.

Citation: 2015 ALL SCR 648

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Whether it is mandatory to obtain sanction for prosecution if offence has no nexus with official duties of public servant?

Other judgments relied on by the counsel for the Respondent lays down the same proposition. Learned Counsel for the Appellant has also placed reliance on N.K. Ganguly v. Central Bureau of Investigation, MANU/SC/1326/2015 : (2016) 2 SCC 143, where this Court in paragraph No. 35 laid down following:

35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate Government Under Section 197 Code of Criminal Procedure, it is imperative that the alleged offence is committed in discharge of official duty by the Accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the Respondent from the appropriate Government before taking cognizance of the alleged offence by the learned Special Judge against the Accused. In the instant case, since the allegations made against the Appellants in the final report filed by the Respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government Under Section 197 Code of Criminal Procedure was required to be taken by the Respondent, before taking cognizance and passing an order issuing summons to the Appellants for their presence.

18. No exception can be taken to the proposition as laid down in the above case. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 744 of 2019 

Decided On: 30.04.2019

 S.K. Miglani Vs.  State NCT of Delhi

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

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Whether Sanction U/S 197 CrPC is required If Offence Has no Nexus With Duties Of Public Servant?

The High Court quashed the complaint
essentially on two grounds; First, no sanction under
Section 197 of the Cr.P.C was obtained by the

prosecution for filing the complaint against
respondent No. 2 and the second, there are
contradictions in the statement of the complainant
and the witnesses.
8. In our view, both the grounds, which found
favour with the High Court for quashing the
complaint, are not well founded and hence legally
unsustainable.
9. So far as the first ground is concerned, we
have perused the complaint filed by the appellant
against respondent No. 2. Having regard to the
nature of the allegations made by the complainant
against respondent No. 2, who was the Police
Officer(SHO) at the relevant time, we are of the view
that no prior sanction to prosecute respondent No.
2 under Section 197 of the Cr.P.C. was required for
filing such complaint.

10. In other words, it cannot be contended that
respondent No. 2 committed the alleged offences
while acting in discharge of his official duties or
while purporting to act in discharge of his official
duties so as to attract the rigor of Section 197 of the
Cr.P.C.
11. In our view, in order to attract the rigor of
Section 197 of the Cr.P.C., it is necessary that the
offence alleged against a Government Officer must
have some nexus or/and relation with the discharge
of his official duties as a Government Officer. In this
case, we do not find it to be so.

NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.579 OF 2019
(Arising out of S.L.P.(Crl.) No.21 of 2018)

Devendra Prasad Singh Vs State of Bihar

Abhay Manohar Sapre, J.
Dated: April 02, 2019.

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When protection of Judges protection Act is available to person who is not judge in strict terms?

In light of the provisions of Section 197 of the Code
of   Criminal   Procedure,   respondent   no.1   was   rightly
protected   by   the   revisional   court   and,   accordingly

dismissed   the   complaint.     Even   in   terms   of   the
provisions of The Judges (Protection) Act, 1985 a judge
means not only every person who is officially designated
as a Judge but also every person – who is empowered by
law to give in any legal proceeding a definitive judgment.
25. In the instant case, respondent no.1 has passed
the   order   after   conclusion   of   the   inquiry   directing
eviction   of   the   petitioner   and   failing   therein   issued
notice to the petitioner as provided under section 5 of
the said Act. In view of the provisions of section 197 of
the Criminal Procedure Code, respondent no.1 also need
to be protected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 125 OF 2007
Uttam Daulat Baviskar,

V
 Amitabh Roy Choudhary,

CORAM : V.K. JADHAV, J.
Dated: November 18, 2016
Citation: 2017 ALLMR(CRI)1051

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Whether prosecution U/S 354 of IPC can be stopped U/S 258 of CRPC for want of sanction U/S 197 of CRPC?

The learned Sessions Judge has also considered factual aspect
on merit. The complainant has made allegations that while snatching a
muster roll from her hand the accused intentionally touched her breast
and her right hand. I do not want to go into the merits and I restrain
myself to assessing the deposition of the complainant and
contradictions therein, if any, as the matter is still pending before the
learned Magistrate. I only hold that act alleged cannot be considered as
the act done in the discharge of the official duty. The allegations made
are unconnected with the function or the job or the duty of the
respondent/accused. A view taken by the learned Sessions Judge is
therefore not correct, but the findings given by the learned Magistrate
while rejecting the application under Section 258 on the ground that
sanction under Section 197 is required are correct and therefore I am
inclined to set aside the order passed by he learned Sessions Judge
and uphold the order passed by the learned Magistrate. 
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.29 OF 2012

State through Public Prosecutor V/s Shri Ulhas Kadam,

 CORAM : MRS.MRIDULA BHATKAR, J.
 DATE: 25th FEBRUARY, 2014
Citation;2016 CRLJ(NOC)68 Bom

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Whether it is necessary to obtain prior sanction for prosecution of public servant U/S 197 of CRPC?

"It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance or framing of charge or event at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."

Karnataka High Court

Shri Vinod B vs K S Eshwarappa on 21 October, 2014

Author: Anand Byrareddy

Citation;2015 CRLJ1349 Karnataka

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What are mandatory requirements for granting sanction for prosecution U/S 197(1) of CRPC?

The Apex Court observed that there are three mandatory requirements for granting sanction for prosecution under Section 197(1) of the Criminal Procedure Code, namely, the accused must be a public servant; that public servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be and the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties.

SUPREME COURT OF INDIA

Chandan Kumar Basu Vs. State of Bihar

[Criminal Appeal No.1359 of 2014 arising out of Special Leave Petition (CRL) No. 3020 of 2013]

RANJAN GOGOI, J.

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