IMPORTANT JUDGMENT RELATING TO PROSECUTION OF PUBLIC SERVANT AND REQUIREMENT OF SANCTION

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  1. The pivotal issue of protection under Section 197 of Cr.P.C. has been considered by Apex Court in Anjani Kumar v. State of Bihar 2008 5 SCC 248   in these words: –

 

The protection given under     Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable   act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant            acting or purporting to act as such in the discharge of his official capacity. Before             Section 197     can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the            act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty; if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.

 

  1. Apex Court in Anil Kumar v. M.K.Aiyappa (2013) 10 SCC 705 has reiterated the legal position governing the issue of sanction in these words: –

 

Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has

acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him…..If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio

 

3. A coordinate bench of Court in Crl.M.C.1449/2004 Ravi Gulati v. Hari Parkash decided on 16th May, 2011 has considered the question of sanction and has reiterated that the purpose of obtaining sanction is to insulate public servants against frivolous litigation. Since, it is apparent from the complaint in question that respondent-accused is a public-servant, therefore, the question of sanction needs to be considered by the trial court at the summoning stage.