Report No. 152
Sanction for Prosecution
10.1. Present Position.-
We are concerned, in this Chapter, with an important provision of the Code of Criminal Procedure, 1973-section 197-under which certain categories of public servants cannot be prosecuted without the sanction of the appropriate Government, the condition being that the offence must have been committed by the public servant "while acting or purporting to act in the discharge of his official duties".
It is common knowledge that public servants prosecuted for misconduct often resort to this section as a bar to prosecution, because the section deprives the court of its jurisdiction to try the offence in question. The words "while acting or purporting to act" etc. have not been found to be very precise. Much case law has gathered around them and, notwithstanding this vast mass of case law, an attempt is made, every time a public servant is prosecuted, to take shelter under this section.
We are not concerned, for the moment, with the various ramifications of the section. What is relevant for our purpose is the question, how an abuse of the protection given by this section to public servants may be avoided in respect of custodial crimes. Of course, a clarification of the provisions of the section may not necessarily be confined to such crimes.