Legal provisions & Case Laws Related to Criminal Prosecution of Public Servant- If the public servant either with his direct action or through an omission to perform his duties which results in committing any offence or participates in such criminal conspiracy by abetting such offence, he cannot take the protection of the Section 197 of the Code of Criminal Procedure 1973 which makes it mandatory for the magistrate or police officer to get the sanction from the state government.
Most people are aware of the fact that the police administration usually refuse to take cognizance of the offence committed by the public servant for false reason of getting sanction or permission from the state government to initiate such criminal proceedings.
Hence we are publishing this article so that common people would know the legal remedy against such serious issue of police indifference & especially about the provisions related to The Indian Penal Code 1860 and the Code of Criminal Procedure 1973 & also the latest judgement given by the Supreme Court of India in such matter.
As above mentioned, the main hurdle comes when the police officer informs the complainant to get the Sanction under Section 197 of The Code Criminal Procedure 1973 against the public officer before taking the cognizance of the complaint. However the common people are unaware of the fact that the Supreme Court has reiterated the fact in its latest judgement that the protection of the sanction against the criminal prosecution for the public servant is only available for an act of the public officer done during his official discharge of duties and not otherwise.
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To make the issue clear first we would see the first para of Section 197 of The Code of Criminal Procedure 1973 which puts mandatory provision of getting sanction from the state government before cognizance of the offence is taken either by the police or the concerned magistrate as follows-
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the 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 sanction—,
As can be seen clearly, protection of sanction under Section 197 of The Code of Criminal Procedure is available for the public servant only ‘while acting purporting to act in the discharge of his official duty’.
The Supreme Court of India declares protection of sanction under S.197 of the Code of Criminal Procedure 1973 is only available for public servant ‘while acting purporting to act in the discharge of his official duty & not otherwise-
The Supreme Court of India on 30th April 2019 in Miglani Vs State NCT Of Delhi (Criminal Appeal No.744 Of 2019) has held in its judgement that to cheat it or to forge a document is not official duty of the public servant and hence the protection of section 197 of the Code of Criminal Procedure 1973 is not available to the public servant. In this case the Supreme Court refused to grant bail to the manager of the bank who was allegedly involved in opening bank account with bogus documents.
The order of the Supreme Court above mentioned can be downloaded from the following link-
S.K. Miglani Vs State NCT Of Delhi Criminal Appeal No.744 Of 2019.Pdf
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To put it simply, if the common people come to know that the public servant has committed an offence either with his direct action or through an omission to perform his duties which results in committing any offence or participates in such criminal conspiracy by abetting such offence then the common people can approach the local police station or concerned magistrate and the police officer or the concerned magistrate should take the cognizance of the offence and initiate criminal proceedings without compelling the common people to get the sanction from the state in such matters.
Important Points for Common People against the offence committed by the Public Servant-
The common people should follow these steps and note down the important points as follows while complaining against public servant for an offence committed by him-
1) That the public servant if through his act or omission has committed and or has conspired with other parties in commission of an offence, then appropriate criminal proceeding has to be initiated against him without giving him protection of sanction under Section 197 of the Code of Criminal Procedure 1973.
2) The protection given by Section 197 of the Code of Criminal Procedure 1973 is available to the public servant only for the the act done purporting to an act in the discharge of his official duty and not otherwise.
3) Cheating, Forging document or to participate in criminal conspiracy to conceal criminal offence are ‘not considered as act done in his discharge of official duties’ and hence he cannot take the protection of the sanction from the state government before cognizance of such offence either by police or magistrate.
Important Provisions related to offences committed by the Public Servant under the Indian Penal Code 1860 are as follows-
S.107- Abetment of a thing,
S.120- Criminal Conspiracy,
S.166-Public servant disobeying law, with intent to cause injury to any person,
S.202- Intentional omission to give information of offence by person bound to inform,
S.217-Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture etc.
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