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Report No. 152

6. Sanction for Prosecution

Issue No. 6

Should a criminal case be registered against the delinquent police officer or the public servant, if a prima facie case of torture, injury or death is found without any further investigation and without obtaining sanction of the Government for the prosecution of such delinquent public servants under section 197, Cr. P.C.

Views of Academicians

Both the academicans are of the view that section 197, Cr. P.C. should be amended.

Views of Judges

All the five Judges who have forwarded their views answered the issue in affirmative. According to the ex-Chief Justice of India, the judicial opinion is clear and there is no need for sanction for prosecution.

Views of Advocates

Out of six Advocates, five Advocates have agreed with the proposal of Law Commission for amending section 197 of Cr. P.C. one has suggested that delinquent officer should be kept under suspension immediately. One senior Advocate of the Supreme Court is against registration of a criminal case. He feels that the Court should take the cognizance of the case on the basis of report of the magistrate.

Views of Police Officers

Out of twelve, ten senior police officers are of the view that a criminal case should be registered against the delinquent officer and no sanction of the Government is necessary under section 197, Cr. P.C. But in circumstances like escaping from police custody and jumping from train at the time of transfer from one place to another, prosecution without sanction will be unfair and unjust.

Views of State Governments/Union Territories

Out of nine responses received from various State Governments/Union Territories, three are in favour of not amending section 197 of Cr. P.C. One State Government is of the view that a criminal case be registered against the delinquent police officer or public servant after a thorough investigation is made and with the sanction of the government under section 197 of Cr. P.C. The Governments of Rajasthan, Bihar and Meghalaya favoured the proposal.

The Government of Andhra Pradesh States that the provision under sub-section (1) of section 176 of Cr. P.C. suggested by the Law Commission will be more appropriate for dealing with the delinquent public servant. The Government of Mizoram endorses this view. The Government of Pondicherry is of the view that for registering a criminal case no sanction under section 197, Cr. P.C. is necessary.



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