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PROSECUTION OF PUBLIC SERVANTS

Other Topics - By: - Mr. M. GOVINDARAJAN - Dated:- 13-8-2016 Last Replied Date:- 15-8-2016 - Section 197 of Cr.PC Section 197 of Cr.PC provides the procedure of prosecution of Judges and public servants. Section 197 (1) of the code provides that 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 .....

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rnment. The proviso to this section provides 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. Section 197 (2) provides that no Court shall take cognizance of any offence alleged to have been committed by any .....

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t sub- section will apply as if for the expression Central Government occurring therein, the expression State Government were substituted. Section 197 (3A) provides that 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 i .....

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de 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. Section 197 (4) provides that the Central Government or the State Government, as .....

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llowing; namely:- Every Commissioned Officer in the Military,Naval or Air ForcesofIndia; Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; Every officer of a Court of Justice(including a liquidator, receiver or commissioner) whose duty it is as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any pr .....

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holds any office by virtue of which he is empowered to place or keep any person in confinement; Every officer ofthe Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; Every officer whose duty it is, as such officer, to take, receive, keep or. expend any property on behalf ofthe Government, or to make any survey, assessment or contract on behalf ofthe Government, .....

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any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; Every person- in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by .....

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words public servant occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Explanation 3 to this section provides that the word election denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election. In Subram .....

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quality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption. Scope of the Section 197 In K. Satwant Singh V. State of Punjab - 1959 (10) TMI 32 - SUPREME COURT OF INDIA a Constitution Bench while examining the scope of Se .....

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mmitted by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of the public servant, the official status finishing only the occasion or opportunity for the commission of the offences. The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty that the public servant could lay a reasonable but not a pretended or fanci .....

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le acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has bee .....

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official duties so that, if questioned it could be claimed to have been done by virtue of his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of CrPC will be attracted. An offence may be entirely unconnected with the official duty as such or it may be com .....

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ered with the boxes and drawers of the table. It was alleged by the appellant therein that the officials tied him and beat him up. Upon an enquiry of the said complaint, the Magistrate came to the conclusion that a prima facie case had been made out and issued process. During the course of trial the issue pertaining to want of sanction was urged. The Supreme Court held that the public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so .....

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o prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it had been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant o .....

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and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. Latest case law In N.K. Ganguly V. CBI, New Delhi - 2016 (8) TMI 501 - SUPREME COURT a criminal case was filed against the appellant and other officers under Section 120 B of IPC read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 in the matter relating to the alleged unauthorized and illegal transfer of plot No. 119, Noida from th .....

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granting membership as per the bye laws of the Society. The Officers of the New Okhla Industrial Development Authority allowed the transfer of the said plot unauthorizedly and illegally from ICPO to ICPO-ICMR Housing Society, despite the fact that they were not competent to pass such order of transfer. After the completion of the investigation, a charge sheet was filed against the appellants for the alleged offences committed by them on account of unauthorized and illegal transfer of the plot in .....

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s before the High Court urging various grounds and prayed that the entire proceedings on the file of the Special Judge be quashed. The High Court found no merit in the applications and refused to interfere with the order of the Special Judge and dismissed the same. Hence the present appeal. The appellants submitted the following before the Supreme Court- The entire transaction of transferring the plot in question in favor of ICPO-ICMR Housing Society was handled in a transparent manner and it wa .....

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llants were employed as public servants at the time of commission of alleged offences; The transfer of the plot in question occurred when the appellants were holding public officeand the alleged offences committed by them, if at all, in discharge of their official duty; The Special Judge erred in taking cognizance of the offences alleged against the appellants without prior sanction of the Central Government having obtained by the respondent; The following are the submissions on the part of the .....

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a value which was much lesser than the prevailing market value at the time, thus making an unlawful gain for themselves, which is an offence; The High Court has rightly dismissed the applications filed by the appellants by passing a valid judgment and order which does not call for interference by the Supreme Court in exercise of its appellate jurisdiction; Therefore no previous sanction is required to be obtained from the competent authority under Section 197 of CrPC. On consideration of the ar .....

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dicate the existence of the alleged conspiracy. In view of the same Section 197 CrPC is squarely applicable to the facts of the present case. Prior sanction of the Central Government was required to be taken by the respondent before the Special Judge took cognizance of offence once the final report was filed under Section 173 (2). The Supreme Court analyzed the case laws relied on both sides. The Supreme Court held that it becomes clear that for the purpose of obtaining previous sanction from th .....

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