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Report No. 41

15.111. Section 196 as revised.-

Section 196 may accordingly be revised to read.-

"196. Prosecution for the offences against the State.- No court shall take cognizance o.-

(a) any offence punishable under Chapter VI, section 153A, section 295A or section 505 of the Indian Penal Code, or

(b) any criminal conspiracy to commit such offence, or

(c) any such abetment as is described in section 108A of the Indian Penal Code, except upon complaint made by order of the Central Government or of the State Government."

15.112. Section 196A.-

Section 196A was inserted in Criminal Procedure Code by the Criminal Law Amendment Act, 1913, which made criminal conspiracy as such an offence by inserting sections 120A and 120B (Chapter VA) in the Indian Penal Code. It was apparently felt that, in the case of petty conspiracies made punishable for'the first time by su.-section (2) of section 120B, private complaints should not be freely allowed and prosecutions should be instituted only when necessary in the public interest. The section classifies such criminal conspiracies in two groups and makes a fine distinction as to the manner of initiating proceedings. There seems to be no point in this refinement.

It has been authoritatively held by the Supreme Courts that when the object of the conspiracy is to commit a cognizable offence, such as cheating and dishonestly inducing delivery of property, and other no.-cognizable offences such as forgery were also committed as steps for effecting this object, the consent of the State Government or District Magistrate is not required under clause (2) of section 196A. In view of this decision, we do not consider that any clarification is necessary in the section.

15.113. Section 196A may accordingly be simplified and revised as follows.-

"196A. Prosecution for certain classes of criminal conspiracy.- No Court shall take cognizance of any criminal conspiracy punishable under section 120B of the Indian Penal Code, other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to which the provisions of section 194, section 195 or section 196 apply, no such consent shall be necessary."

15.114. Section 196B.-

Section 196B provides that in the case of any offence in respect of which the provision of section 196 or section 196A apply, a District Magistrate or Chief Presidency Magistrate may, "Notwithstanding anything contained in those sections or in any other part of this Code" order a preliminary investigation by a police officer not being below the rank of Inspector. The object of such an investigation can only be to enable the competent authority to decide whether it should order a complaint under section 196 or give consent to the initiation of proceedings under section 196A.

We, therefore, recommend that the section should be amended vesting the power to order investigation in that authority and making it clear that such investigation will take place before the complaint is ordered or the consent is given. The words "notwithstanding anything contained in those sections or in any other part of this Code" are clearly unnecessary and should be omitted. The section may be revised to read.-

"196B. Preliminary investigation in certain cases.- The Central Government or the State Government before ordering complaint to be made under section 196, and the State Government or the District Magistrate before giving consent under section 196A, may order a preliminary investigation by a police officer not below the rank of Inspector, in which case such police officer shall have the powers referred to in su.-section (3) of section 155."

15.115. Section 1.- its object.-

Under section 197 the previous sanction of the appropriate Government is necessary when a judge or a Magistrate or a public servant, not removable from his office save by or with the sanction of Government, is to be prosecuted for an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Substantially similar provisions have found a place in the Code since 1861, the object being to enable the more important categories of public servants performing onero us and responsible functions to act fearlessly by protecting them from false, vexatious or mala fide prosecutions.

15.116. History of the section.-

As originally enacted, section 197(1) read.-

"When any Judge, or any public servant not removable from his office without the sanction of the Government of India or the Local Government is accused as such Judge or public servant of any offence, no court shall take cognizance of such offence except with the previous sanction of the Government having power to order his removal, of some officer empowered in this behalf by such Government or of some Court or other authority to which such Judge or public servant is subordinate, and whose power to give such sanction has not been limited by such Government."

It was subsequently noticed that the section did not give protection to officers not removable from their office except by or with the sanction of the Secretary of State, nor to Magistrates as such while acting in their no.-judicial capacities. It was also felt that the phrase "accused as such Judge or public servant of any offence" was not sufficiently precise. Accordingly, the section was amended by the Amending Act of 1923 to read.-

"When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a Local Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duly, no Court shall take cognizance of such offence except with the previous sanction of the Local Government."

15.117. Protection reinforced by Government of India Act, 1935.-

The protection against prosecution thus given to certain public servants was placed on a constitutional footing by section 271 of the Government of India Act, 1935. Su.-section (1) of this section provided that "no Bill or amendment to abolish or restrict the protection afforded to certain servants of the Crown in India by section 197 of the Indian Code of Criminal Procedure shall be introduced or moved in either chamber of the Federal Legislature without the previous sanction of the Governo.-General in his discretion."

Su.-section (2) of the same section further provided that "the powers conferred upon a Local Government by the said section 197 with respect to the sanctioning of prosecutions and the determination of the Court before which, the person by whom and the manner in which, a public servant is to be tried, shall be exercisable onl.-

(a) in the case of a person employed in connection with the affairs of the Federation, by the Governo.-General exercising his individual judgment; and

(b) in the case of a person employed in connection with the affairs of a Province, by the Governor of that Province exercising his individual judgment."

Following this latter provision, the words "except with the previous sanction of the Local Government in section 197(1) of the Code were replaced by the Adaptation of Indian Laws order of 1937 with the words "except with the previous sanctio.-

(a) in the case of a person employed in connection with the affairs of the Federation of the Governo.-General exercising his individual judgment; and

(b) in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province exercising his individual judgment."

Subsequent Adaptation Orders made necessary formal changes in the section without altering its substance.

15.118. Analysis of the section.-

The section now applies to three classes of public servants, namely.-

(i) any person who is a Judge within the meaning of section 19 of the Indian Penal Code;1

(ii) any Magistrate; and

(iii) any public servant who is not removable from his office save by or with the sanction of a State Government or of the Central Government.

Such a public servant is protected against a prosecution only if the offence is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The protection consists in the prosecution having to obtain the previous sanction of the Central Government if the person is employed in connection with the affairs of the Union, and of the State Government if he is employed in connection with the affairs of a State.

1. This section states.-"The word Judge denotes 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, civil or criminal, a definitive judgment, or a judgment which if not appealed against, would be definitive or a judgment which, if confirmed by some other authority, would be definitive or who is one of a body of persons, which body of person is empowered by law to give such a judgment".

15.119. Does section offend Article 14 of the Constitution.-

The Supreme Court has held1 that "Article 14 (of the Constitution) does not render section 197, 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". In this case, however, the Supreme Court did not consider whether any unconstitutional discrimination was involved in the section extending its protection to a few categories of public servants and not to every public servant as defined in section 21 of the Indian Penal Code.

The judgment states2, "if the Government gives sanction against one public servant but declines to do so against another, then the Government servant against whom sanction is given may possibly complain of discrimination. But the petitioners who are complainants cannot be heard to say so, for there is no discrimination against any complainant. The discrimination will be patent in a case where a senior officer removable from his office only by the State Government and a subordinate officer removable from his office by a lesser authority are sought to be prosecuted in connection with their official duty, and the State Government considers it proper to refuse sanction in respect of the senior officer but has no voice as to the prosecution of the subordinate.

It will be a nice point of law to determine whether the classification adopted in section 197 of public servants removable from office only by or with the sanction of the Government and other public servants is "rational" having regard to the objective of the safeguard". It has, however, been laid down by the Supreme Court3, while explaining the scope of Article 14, that "the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest." It can, therefore, be argued that Parliament considers that the need of superior Government servants to protection under this section is the clearest and does not consider it necessary to extend the protection to lower groups of Government servants and that in this view, the section does not offend Article 14.

1. Matti Jog Dubey v. H.C. Bhari, (1955) 2 SCR 925 (931).

2. Ibid., p. 932.

3. Ram Krishna Dalmia v. Justice Tandolkar, AIR 1958 SC 538 (548).

15.120. Suggestion to remove discrimination.-

It has been suggested by a State Government that this discrimination, whether unconstitutional or not, should be removed by making section 197 applicable to all public servants irrespective of the authority competent to remove them from their office.

Activities of the Government have greatly increased and a public servant at the lowest rung of the ladder is also called upon to perform duties likely to prejudice the interest of certain individuals though the same may be in the larger interest of the society. It is not always possible for the superior officer to perform the duties himself and on a number of occasions he has to get things done by his subordinates. It is said that this situation has led to an increased number of fictitious and frivolous proceedings against public servants who are not protected by section 197 of the Code, but we have no definite information in support of this statement.



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