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Report No. 152

10.3. Amendment.-

After the 1923 amendment, as stated above, the court has to decide in each case whether the offence was committed while purporting to act in the discharge of official duties. Our concern at the present stage is with the question whether the section needs to be clarified to ensure that the obstacle of requirement of sanction under the section shall not be pleaded as a bar to the prosecution of an officer for custody related offences.

Having regard to the fact that in almost every case, the sanction is sought to be resorted to, we consider it necessary to make a clarification in this regard. Of course, even without such amendment it can be argued that the language of the section will not cover torture or death caused in custody. In a case which arose under section 270(1), Government of India Act, 1935 (worded in similar language), the Federal Court, speaking through Justice Varadachariar, observed as under:1-

"In one group of cases it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. In another group, more stress has been laid on the circumstances that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view.

In the third group of cases, stress is laid almost exclusively on fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed. The use of the expression 'while acting' etc. in section 197, Criminal Procedure Code (particularly its introduction by way of amendment in 1923), has been held to lend some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test.

To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient's person, it is difficult to believe that it was the intention of the legislature that he could not be prosecuted for such offence except with the previous sanction of the Local Government."

Section 190 of the Code empowers a magistrate to take cognisance of any offence. Section 197 embodies one of the exceptions to the general rule laid down in section 190, as it regulates the competence of the court and bars its jurisdiction in certain cases. The object and purposes of the section is to ensure that public servants and officials while acting in their official discharge of duties are not subjected to needless or vexatious prosecutions.

Prosecution is permissible only after sanction is granted on the well-considered opinion of the superior authority. The Supreme Court2 held that the offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duty. No question of sanction can arise under section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty.

There must be a reasonable connection between the act and the official duty. There is a plethora of decided cases on the section. We do not consider it necessary to make any reference to them for the present purpose. However, no court has taken the view that sanction is necessary for the prosecution of a public servant for custodial offences.

1. Hori Ram Singh v. Emperor, AIR 1939 FC 43 (56): 40 Cr LI 468.

2. Prabhakar v. Sinari, AIR 1969 SC 686.

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