Principles governing need to obtain sanction under Section 197 Cr P C to prosecute public servants

The protection given under Section 197 Cr P C 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 subject to the limitation that the alleged act done by the public servant is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act.

Appellant, the police personnel were made accused in the private complaint filed by Respondent alleging police excess, wherein cognizance was taken under various sections of the Indian Penal Code. Appellant sought quashing of proceedings on the ground that in the absence of sanction under Section 197 of the Code of Criminal Procedure, 1973 (CrPC), the order taking cognizance was bad. The plea however was declined by the impugned order passed by the High Court holding that the Court at this stage is required to consider only the sworn statement of the complainant and his witnesses to conclude whether a prima facie case is made out for registering the case and issuing summons and such is not the stage for the Court to consider the defence of the accused. 

Against the above impugned order, the instant petition was filed before the Supreme Court to determine the issue of obtaining sanction under Section 197 CrPC. It was observed that the question, whether sanction is necessary or not, may arise on any stage of the proceedings, and in a given case, it may arise at the stage of inception. 
In the present case the allegation made was that the Appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one ‘S’ and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. 

Under Section 197 of CrPC, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary. 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 subject to the limitation that the alleged act done by the public servant is reasonably connected with the discharge of his official duty and 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. 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. The duty should not such 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. If in doing his official duty, the person alleged acted in excess of his duty, but there was 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. 

In the present case it was held that the whole allegation was regarding police excess in connection with the investigation of a criminal case. The said offensive conduct was held to be reasonably connected with the performance of the official duty of the appellant. The Magistrate in such circumstances could not have taken cognizance of the case without the previous sanction of the State Government. 

[D. T. Virupakshappa vs. C. Subash]
(SC, 27.04.2015 – Criminal Appeal No. 722 of 2015)