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Report No. 41

15.121. Widening scope of section to cover all public servants not recommended.-

However that may be, we do not think it would be proper or prudent to widen the scope of the section so as to cover all public servants irrespective of their grade or rank which goes, pari passu, with the importance of the duties they have to perform. The definition of "public servant" given in section 21 of the Indian Penal Code, particularly clause twelfth, is very comprehensive. It includes, besides government servants proper, "every person in the service or pay of a local authority or of a corporation established by or under a Central, Provincial or State Act or of a Government company as defined in section 617 of the Companies Act, 1956".

The public servants now protected by section 197 are, broadly speaking, those government servants in the higher grade with more responsible and onerous duties to perform and hence requiring to be protected from vexatious prosecutions which would be highly detrimental to the administrative work of Government. There is, in our opinion, no need to extend this protection to other categories of government servants.

15.122. Procedural details under the section.-

The meaning of the word "acting or purporting to act" in section 197 has been well settled by a string of decisions1 of the Federal Court, the Privy Council and the Supreme Court. Any difficulty that may be felt lies in the actual application of the principles laid down in these decisions to the facts and circumstances of particular cases. The section does not prescribe any particular form of sanction, but Courts usually insist on being satisfied that the sanctioning authority has applied its mind to the facts of the case before granting sanction, and that the sanction is not arbitrary2.

The sanction need not specify the offences as precisely as a charge3, and omission to mention a particular section of the law also does not seem to preclude the prosecution from proving the relevant facts4. Though prosecutions sometimes fail because of defects in the sanction, it does not appear to be necessary to insert any provision in the Code as to what the sanction should contain.

1. Hari Ram, AIR 1939 FC 43 (46); H.H.B. Gill, AIR 1948 PC 128; T.A. Menon, AIR 1950 PC 19; Mathum, AIR 1954 SC 455; Bishwabhusan v. State, AIR 1954 SC 359; Satwant Singh v. State of Punjab, (1960) 2 SCR 89: AIR 1960 SC 266; Indu Bhusan v. State, AIR 1958 SC 148; Baijnath v. State, AIR 1966 SC 220: (1966) 1 SCR 210.

2. Gokal Chand Dwarka Das, (1948) 75 Indian Appeals 30 (37): AIR 1948 PC 82; Jawant Singh v. State of Punjab, 1958 SCR 762 (765).

3. Emperor v. Jehangir Cama, AIR 1927 Born 501 (503).

4. Maj. I. Phillips v. State, AIR 1957 Cal 12 (25).

15.123. Section to apply to public servant after retirement also.-

Section 197, as it now stands, applies to a public servant of the specified category only when he is holding office as such public servant. It does not apply to him after he has retired, resigned or otherwise left the service1. As interpreted by the Supreme Court, the section requires that the person charged must be a public servant not only at the time when the offence was alleged to have been committed but also when he "is accused" of the offence2. It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement.

The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint3. The ultimate justification for the protection conferred by section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant.

1. Keshavlal v. State, AIR 1961 SC 1395: (1962) 1 SCR 451 (section 197); S.A. Venkataraman (in re:), 1958 SCR 1037 (section 6, Prevention of Corruption Act, 1947).

2. Emperor v. P.A. Joshi, AIR 1948 Born 248 (Reviews cases).

3. Cf the observations in S. Y. Patil (in re:), AIR 1937 Nag 293 (now overruled by Keshavlal's case, supra).

15.124. Reference to section 19, I.P.C. unnecessary.-

Su.-section (1) refers to "a Judge within the meaning of section 19 of the Indian Penal Code". Even without these words, the position will be the same in view of section 4, su.-section (2), of the Code of Criminal Procedure. In fact, section 556 of this Code, while referring to the Judge, does not refer to section 19 of the Indian Penal Code. As regards Magistrates, however, the definition in section 19 of the Indian Penal Code may not cover Magistrates while exercising no.-judicial functions or even when holding certain inquiries. It is necessary to refer to Judges and Magistrates explicitly since not all of them fall under the category of public servants not removable from their office save by or with the sanction of the Government.

15.125. Su.-section (2) of section 197 may be retained.-

Su.-section (2) empowers a Government not only to determine the person by whom the manner in which, and the offence or offences for which, the prosecution of the public servant is to be conducted, but also to specify the Court before which the trial of the public servant is to be held. It is presumably to ensure that the dignity of hig.-placed government servant is maintained and that he is not compelled to undergo the embarrassment of a trial by junior and inexperienced magistrates. There appears to be no harm in retaining the su.-section without any modification.

15.126. Su.-section (1) revised.-

In the light of the above discussion, su.-section (1) of section 197 may be revised as follows:.

"(1) When any person who is or was a Judge x x x or Magistrate or a public servant not removable from his office save by or with the sanction of the Central Government or of a State 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 sanctio.-

(a) in the case of a person who is employed, or as the case may be was at the time of commission 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 of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government."

15.127. Section 197A.-

Section 197A was inserted by the Amendment Act of 1951 which extended the Code to all Part B States. It confers on the Rulers of the former Indian States a protection similar to, but wider than, that conferred on public servants by section 197. Su.-section (2) of section 197A debars criminal courts from taking cognizance of any offence alleged to have been committed by any such Ruler except with the previous sanction of the Central Government. Under clause (a) of su.-section (1), the Central Government has notified 284 former Indian States; and every person who is for the time being recognized by the President as the Ruler of any of these States is entitled to protection under the section.

15.128. Absolute privilege enjoyed by the Rulers during British regime.-

During the British regime, the Rulers of Indian States in political alliance with the paramount power were treated as sovereign within their respective territories and, consequently, they enjoyed the absolute privileges enjoyed by independent sovereigns and their ambassadors in the courts in England in accordance with the principles of international law. In British India also, so far as the criminal courts were concerned, they were not amenable to their jurisdiction at all on the principle which is stated in a classic judgment1 on the subject as follows.-

"The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign State to respect the independence and dignity of every other sovereign State, each and every one declines to exercise by means of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other State, or over the public property of any State which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and, therefore, but for the common agreement, subject to its jurisdiction."

1. The Parlement Beige, (1880) 5 PD 197 (214, 215).

15.129. Continuance of privilege under the Constitution.-

When after Independence, the process of integrating the former Indian States with the rest of the country began, guarantees were "given to the Rulers under the various Agreements and Covenants for the continuance of their rights, dignities and privileges. The rights enjoyed by the Rulers vary from State to State and are exercisable both within and without the States. They cover a variety of matters ranging from the use of red plates on cars to immunity from civil and criminal jurisdiction and exemption from customs duties. Even in the past it was neither considered desirable nor practicable to draw up an exhaustive list of all these rights. x x x Obviously, it would have been a source of perpetual regret if all these matters had been treated as justiciable.

Article 363 has, therefore, been, embodied in the Constitution which excludes specifically the Agreements of Merger and the Covenants from the jurisdiction of Courts except in cases which may be referred to the Supreme Court by the President. At the same time, the Government of India considered it necessary that constitutional recognition should be given to the guarantees and assurances which the Government of India have given in respect of the rights and privileges of Rulers. This is contained in Article 362, which provides that in the exercise of their legislative and executive organs of the Union and States will have due regard to the guarantees given to the Rulers with respect to their personal rights, privileges and dignities."1

1. White paper on the Indian States (Revised Edition), 1950, pp. 12.-126, para. 240.

15.130. Limited protection under section 197A.-

The enactment of section 197A in the Code of Criminal Procedure was intended to give effect to this directive in so far as criminal prosecutions of e.-rulers were concerned. Having regard, however, to the changed circumstances, the section did not confer on them an absolute immunity from prosecution for any offence, but only a limited protection in the shape of a previous sanction by the Central Government to the prosecution. No amendment is required in this section.



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