Balancing Justice And Immunity - Revisiting Section 197 Of CRPC
Author: LawSphereX
Category: Criminal Law
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BALANCING JUSTICE AND IMMUNITY: REVISITING
SECTION 197 OF CRPC
Shivam Tah, Institute of Law, NIRMA University
ABSTRACT
This article offers a critical analysis of Section 197 of the Code of Criminal Procedure (CrPC), which protects public servants—such as judges and magistrates—from prosecution without prior government approval when they act or pretend to act in their official duties. Although the clause is meant to protect public employees from needless harassment, it has been abused to conceal unlawful activity under the pretence of performing official tasks. This article examines the contentious classification under Article 14 of the Constitution, which grants immunity to public officials working for the federal or state governments but not for those hired by local governments. It raises concerns about the rationale and equity of this distinction.
It highlights the difficulties in striking a balance between protecting public officials and combating power abuse by analysing the feasibility of the previous penalty system. In addition to discussing cases where courts have supported or refused protection under Section 197, the article examines judicial interpretations of actions believed to be performed during government business. It also explores the Governor’s discretionary power to impose sanctions and highlights the need for more precise rules and openness in the sanctioning procedure. To improve the clarity and application of Section 197 and ensure justice and accountability, the article suggests prospective revisions in its conclusion, including the addition of unbiased oversight and changes to the future BNSS.
INTRODUCTION
There are numerous sections and provisions present in our legal system which draw criticism for a variety of reasons One of the most infamous ones among those provisions is section 197 of CRPC which gives protection to a judge or magistrate or a public servant who has been employed in central or state government at the time of the commission of the offence and has been ‘acting or purporting to act’ in discharge of his official duties, from being removed without prior sanction from the government. The main purpose of this section is to protect our public servants from unnecessary intervention and harassment. This section protects public servants from being prosecuted unnecessarily which affects their work. However, it has been observed that this provision is being misused by public servants to engage in illegal or unlawful activities in the name of discharging official duty.
SECTION 197 FROM THE LENSES OF REASONABLE CLASSIFICATION OF
ARTICLE 14 OF THE CONSTITUTION
As said earlier the bifurcation of public servants into two groups is somewhat controversial as the logic assumes that people who are employed in the state or central government discharge official duty which is more important than the second group who are employed in the local government. If we analyse this from a logical perspective then it is not appropriate to assume that just because some people are employed at the time of the commission of the alleged offence in central or state government are doing something more important. For eg, a clerk employed in central or state government cannot be said to be discharging more important duties than an officer who is employed in a local government. However, the section states that only the former will be granted immunity and not the latter.
This is not a reasonable classification as the classification has no reasonable nexus with the purpose it wants to achieve. IS THE CONCEPT OF PRIOR SANCTIONING VIABLE FOR THE FUTURE?
Another question naturally arises even if the system of prior sanctioning is as viable for the future as it seems. Sec 197 tries to find a way by which it can maintain a delicate balance between protecting public officials from unnecessary interruption and harassment and unlimited and arbitrary power at the hands of these officials. But this balance is very difficult to maintain as many times officials indulge in illegal or unlawful acts by taking the shield of sec 197 which makes it very difficult to prosecute these officials and take cognizance against
them. This resulted in gross violation and miscarriage of justice. Courts have tried time and again to distinguish between acts of the public officials which can be said to be done in the discharge of official duty and hence requires prior sanctioning and acts which fall outside the ambit of official duty and do not require prior sanctioning. WHAT ARE THE ACTS OR SERVICES WHICH CAN BE SAID TO BE DONE WHILE
‘PURPORTING TO ACT IN THE DISCHARGE OF OFFICIAL DUTY’?
In a recent case, the Honourable Supreme Court reiterated the test laid down in the case of State of Maharashtra V. Budhikota Subbarao1 and stated that ‘The yardstick to be followed while is to form a prima facie view whether the act of omission for which the accused charged had a reasonable connection with the discharge of his duties’2. The court in this case granted protection to a lower division clerk employed in a municipality who has been alleged of forgery and misappropriation with the documents. The court observed that even if it cannot be said that these alleged offences form a part of the official duty of the accused it also needs to be kept in mind that the accused is a lower division clerk who just did the paperwork at the end and the other co-accused (Executive officer and junior engineer) are already granted protection under section 482 of the Crpc.
Thus, an inclusive view must be taken to analyse this whole case and a shield of similar protection must be granted to the clerk as he just did what was told to him which forms a part of his job. Similarly, in another case, the Punjab and Haryana High Court upheld the protection granted to an SHO under section 197 of the Crpc when she did not disclose the fact that the couple against whom a bail application was filed was a proclaimed offender3. The court said that even if it is assumed that the officer deliberately concealed the fact the couple were proclaimed offenders, the same was done in the discharge of her official duty and hence protected under section 197 of Crpc. Courts have time and again upheld the view that if some official duty is done even in excess, then prior sanction from the government is deemed necessary.
The logic behind this contention is basically that if some public official has to commit some unlawful activity to discharge his official duty, then the law does not restrict him from doing so. For eg, if the police have to
1 State of Maharashtra V. Budhikota Subbarao, 1993 SCR (2) 311
2 Indra Devi V. State of Rajasthan, CrA 593 of 2021
3 Muniya Devi V. State of Haryana,2023 SCC Online P and H 3602
shoot a robber so that he cannot hurt people or run away, then the same is said to be protected under sec 197 of Crpc cause the same has a reasonable connection with the discharge of his official duty. As far as the requirement of sanction for special forces like AFSPA is concerned, it is mandatory to seek sanction at the time of taking cognizance of the offence. In the case of General officer commanding (Army) Vs CBI4, it is alleged that 5 innocent people were killed by the AFSPA forces in fake encounters. The court reiterated that according to section 7 of the AFSPA Act 19905, no prosecution suit can be initiated against an officer who has done or purported to have done something in the discharge of his official duty without the consent of the central government.
Hence the court concluded that the courts have no jurisdiction in the matter per say but advised the government to do a proper assessment of an act before deciding whether to prosecute the officer or not cause cases of these kinds reduce public confidence and respect among the people and induce fear about the very forces which was deployed to give them security.
WHEN PRIOR SANCTIONS ARE NOT REQUIRED UNDER SECTION 197 OF CRPC
All this being said courts of our legal system have taken a stricter approach when the alleged act of the public servants is so irrational and prima facie violating the principles of justice. Supreme court in a recent judgement set aside an order of the Karnataka high court which quashed a criminal complaint against a village official for faking the death certificate of a villager6. The Apex court observed that whether the official is involved in the said act of faking documents is a matter of trial but the high court cannot quash the complaint in its entirety only on the basis that prior sanction under sec 197 is not taken from the government when the scope itself of sec 197 does not extend its protective shield to every act committed by the public servants.
DISCRETIONARY POWER OF GOVERNOR IN GRANTING SANCTION UNDER
SECTION 197 OF CRPC
4 General officer commanding (Army) Vs CBI, AIR 2012 SUPREME COURT 1890
5 Armed Forces (Special Powers) Act,1958, Sec 7, Acts of Parliament,1958
6 Ashish Tripathi, No protective cover to every act or omission of a public servant: SC, Deccan Herald 17 January 2024,https://www.deccanherald.com/india/section-197-crpc-does-not-extend-protective-cover-to-everyomission-of-public-servant-sc-2853093
Under section 197 of the CRPC, it is provided that the prior sanction of ‘government’ is required in cases to take cognizance against public servants7. But it has been a matter of debate what the word ‘Government’ exactly refers to the governor or the state government. The constitution of our country gives power to the governor to exercise certain powers. But it has to be kept in mind that those powers should not be exercised in an arbitrary manner and for personal satisfaction but within the ambit of the constitutional sense under the cabinet system of government. This position has been reiterated by the apex court as "It is an elementary principle of democratic Government prevailing in England and adopted in our Constitution that the Rajpramukh or the Governor as head of the State is in such matters merely a constitutional head and is bound to accept the advice of his Ministers"8.
CONCLUSION
Overall, there is a large scope for improvement in the interpretation of sec 197 as well as the procedure that is employed currently by the courts and the government. Firstly, and foremost the apex court of our country must issue some guidelines that the other courts and governments should follow to ensure that uniformity is maintained in the whole scenario while issuing sanctions to the public servants under sec 197. Secondly, governments must make it clear on a case-to-case basis why the prior sanction is a must in that particular case. This will ensure transparency and boost public confidence. The Constitution of an independent committee must be considered for prospects that ensure impartiality in dealing with specific matters under sec
197. Amendments could also be considered in the upcoming BNSS (Bhartiya Nagarik Suraksha
Sanhita) to make the definition of sec 197 more comprehensive and what exactly the term ‘public servant’ aims to incorporate within its domain.
7 Biplab Kumar Lenin, Sanctions for prosecution of public servants: A necessary evil, Manu
Patra,https://www.manupatra.com/roundup/329/Articles/Sanctions.pdf
8 P Joseph John V State of Travancore, A.I.R 1955 S.C. 160