CrPC Section 197 – Prosecution Of Judges And Public Servants

Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) is one of the most important sections under the Indian law that grants specific protection to judges, magistrates, and public servants from frivolous or malicious prosecution for acts done in the course of their duty. The Section maintains a balance between accountability and protection from undue harassment, as it requires prior sanction from the appropriate government authority before any legal proceeding can be initiated against them.

Purpose And Scope Of CrPC Section 197

It is primarily designed to protect public servants, including judges, magistrates and public servants from acts done in pursuance of their official duties. Since those duties typically include decisions or actions that could be considered accusations or legal challenges, the provision aims to allow public officials to carry out their duties without the fear of personal legal consequences except where the required governmental sanction is sanctioned.

Legal Provision CrPC Section 197

“Section 197- Prosecution of Judges and public servants-

1. When any person who is or was a Judge or Magistrate or a public servant not removable from his officer 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-
   1. in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
   2. in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State of the State Government :

[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.] [Added by Act 43 of 1991]

[Explanation. - For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB,] [Inserted by Criminal Law (Amendment) Act, 2013 ] or section 509 of the Indian Penal Code.] [Inserted by Act 63 of 1980]

2. No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
3. The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein the expression "State Government" were substituted.

[(3-A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] [Added by Act 43 of 1991]

4. The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”

Simplified Explanation Of CrPC Section 197

CrPC Section 197 provides for the procedure for prosecuting judges, magistrates and public servants for offences committed while acting in their official capacity.

Subsection (1): Requirement Of Sanction For Prosecution

Subsection(1) states that no court shall take cognizance of an offence committed by a person who is was a judge, magistrate or a public servant, who cannot be removed from office without the sanction of the government, when such offence was committed by him while acting or purporting to act in the discharge of his official duty except with the previous sanction of the appropriate government.

• Clause (a) applies to those public servants who work for the Union government, where the Central Government has to provide sanction for prosecution.
• Clause (b) deals with public servants employed under the state governments, wherein the sanction of the concerned State Government is required.

Proviso: Special Circumstances

The proviso in Section 197(1)(b) provides for a special situation, where if a public servant commits the alleged offence during the time when the proclamation issued under Article 356 of the Indian Constitution (President's Rule) was in place, then the sanction is required from the Central Government instead of the State Government.

Explanation Of Certain Offences

The Explanation of Section 197(1) clarifies that no sanction is required to be granted for prosecuting an officer who is a public servant alleged to have committed some grave offences, which involve sexual offences and human trafficking. The list of such offences is as follows:

• Section 166A, 166B of the Indian Penal Code
• Offences related to outraging the modesty of a woman (354, 354A, 354B, 354C, and 354D of IPC)
• Human trafficking (Section 370 IPC)
• Sexual assault and rape (Sections 375, 376, 376A, 376AB, 376C, 376D, 376DA, and 376DB)

This amendment ensures that public servants cannot assert immunity or delay in the trial of grave crimes, most notably against women and children.

Subsection (2): Sanction For Armed Forces

Section 197(2) extends similar protection to members of the armed forces. It provides that no court shall take cognizance of any offence alleged to have been committed by a member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duties, except with the previous sanction of the Central Government. This provision is important to personnel who are deployed in sensitive areas where allegations may arise against them for misconduct and excessive use of force.

Subsection (3): State-Level Armed Forces Protections

Subsection (3) allows the State Government, by issuing a notification, the power to extend similar protection to other classes of public forces duty-bound to maintain public order in a State such as police or paramilitary forces. After that issuance of the notification, the provision imposing a prior sanction before prosecution will be applicable as through the expression “Central Government” in subsection (2) were substituted with “State Government”.

Subsection (3A): Special Provisions For President's Rule

Subsection (3-A) ensures that when President's Rule is in force in a state under Article 356 of the Indian Constitution, no court shall take cognizance of offences committed by forces maintaining public order in the state without the prior sanction of the Central Government.

Subsection (3-B): Retrospective Validation

Subsection (3-B) retrospectively declares invalid any sanction accorded by the State Government or cognizance taken by a court with respect to offences committed during periods when President's Rule was in effect if such sanctions were accorded before the Code of Criminal Procedure (Amendment) Act, 1991 came into force. It gives the Central Government authority to grant sanction in these cases.

Subsection (4): Designation Of Prosecution Process

This subsection (4) grants the Central or State Government (depending on who granted the sanction) the authority to:

• Determine the person who will conduct the prosecution
• Decide the manner in which the prosecution will be conducted
• Specify the offences for which the prosecution will be conducted
• Choose the court where the trial will be held

Landmark Judgements On CrPC Section 197

K. Ch. Prasad vs. Smt. J.Vanalatha Devi And Ors (1987)

The Supreme Court held that CrPC Section 197 is made applicable only when public servants cannot be removed from their position unless the sanction of the government has been received. The court stated, “It is very clear from this provision that this Section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government.”

A. Sreenivasa Reddy vs. Rakesh Sharma (2023)

In this case, the Supreme Court held that Section 197 of the CrPC would not apply to employees of nationalised banks. Even if they are “public servants,” they are not removed from their office solely by or with the sanction of the government.

Shadakshari vs. The State Of Karnataka (2024)

The Supreme Court in this case examined CrPC Section 197. The Court held the following:

• Purpose of Section 197: The court opined that the provision of sanction for prosecution under Section 197 is to protect public servants performing official duties against the possibility of harassment by initiating frivolous criminal proceedings.
• Limited Protection: CrPC Section 197 limits its protection to all actions or omissions of the public servant while he was in service. The protection is only confined to acts or omissions that such a servant specifically did or omitted to do in his official capacity while discharging his official duties.
• Acts Done Outside Official Duty: The court held that fabricating records or misappropriation of public funds cannot be considered acts within the scope of official duties of a public servant. The court noted that official capacity may provide the means for such acts by a public servant but does not render those actions to the discharge of their duties.
• Reasonable Connection: Further it was observed that the protection under CrPC Section 197 comes into play only where there is a reasonable connection between the act alleged to have been done and his official duty. In such circumstances, the Court highlighted that even though a public servant acts in excess of his duty, protection can be brought within its purview when there is a reasonable connection between the act and his official responsibility.

Conclusion

Section 197 of the Code of Criminal Procedure, 1973 strives for a balance between accountability and immunity for public officials. CrPC Section 197 mandates prior sanction of the government before prosecutions are initiated against the officials for acts done in the course of their duties. The reason behind this protection is that unnecessary litigation is avoided and they can discharge their functions without fear. The protection, however, does not extend to serious crimes like sexual offences under Section 354 of the IPC. In this way, such exceptions would also make sure that, despite the protection of public officials from frivolous accusations, they still remain accountable for serious misconduct or the abuse of power.