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Report No. 152

10.5. Need for clarification: Recommendation.-

Theoretically, it can be argued with great force that custodial offences in the nature of causing death or bodily injury or commission of sexual offences have no connection with the official duties of a public servant and section 197 cannot apply to them. But (as stated above) the very fact that in the past such attempts have been made to seek shelter under section 197, and the serious possibility that such attempts will continue to be made in the future, would seem, to justify a clarificatory amendment.

There are enough difficulties in the way of the successful prosecution of offences committed by public servants and one need not add to them by allowing a provision operating as a bar to prosecution to nullify attempts to bring such offenders to trial. Our recommendation, therefore, is that below section 197(1) of the Code of Criminal Procedure, 1973 the following Explanation should be added:

"Explanation-For the avoidance of doubts, it is hereby declared that the provisions of this section do not apply to any offence committed by a judge or public servant, being an offence against the human body committed in respect of a person in his custody, nor to any other offence constituting an abuse of authority."

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