ACKNOWLEDGEMENT.

Id like to extend my thanks to my Criminal Procedure

Code teacher Prof. R.K. Murali for his continued
guidance and assistance which helped immeasurably in
the completion of this project.
TABLE OF CONTENTS

Acknowledgement. ................................................................. 1
Table of Contents ................................................................... 2
Introduction ............................................................................ 3
Section 197 in The Code Of Criminal Procedure, 1973 ......... 5
Interpretation of Sec. 197 ....................................................... 7
Constitutional validity of Sec. 197 of CrPC ........................... 9
Case Study ............................................................................ 10
Conclusion ............................................................................ 17
Bibliography ......................................................................... 19

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INTRODUCTION
Section 197 of the CrPC affords protection against vexatious proceedings
instituted against inter alia Public Servants. The privilege of immunity from
prosecution without sanction(official permission or approval for an action) only
extends to acts which can be shown to be in the discharge of official duty. 1
It is usually read with Section 6 of Prevention of Corruption, Act and Section
131 of Cr.PC.
The impugned Section, in relevant parts, reads as follows: 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 discharge of his official duty no court shall take cognizance of such
offence except with the previous sanction.

The object of the section is to guard against malicious proceedings against a

public servant without securing the opinion of his superior.2
However, it is has been held that this section cannot be interpreted to protect every
offence committed by a public servant while he was actually in the performance
of his official duties. Further, it has been established that the acts concerned must
have a direct connection or a strong causal link with the official duties.3

The bar created is absolute, in the absence of sanction where S.197 applies;
cognizance of the offence is absolutely barred.4 However, the Courts have
observed that the protection given to a public servant is thus limited by making

1
Pichai Pillai v. BalasundaraMudaly, (1935) 58 Mad 787
2
Sri Baliram Singh v. State of Bihar, 1990 CrLJ 719( Pat)
3
Binod Kumar Singh v. State of Bihar, 1986 CrLJ 1878, 1882 (Pat)
4
State of Maharasthrav.BudhikotaSubbarao (Dr.), (1993) 3 SCC 399
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the sanction of the government a condition precedent to the launching of a
prosecution.5

5
S JaferuklahJaferiv. Abdul Aziz, AIR 1970 AP 13, 15
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 SECTION 197 IN THE CODE OF
CRIMINAL PROCEDURE, 1973
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 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 discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction-

(a) 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;

(b) 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: 1 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.

(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.

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(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.

(3A) 1 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.

(3B) 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.]

(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.
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INTERPRETATION OF SEC. 197
The relevant parts of the concerned section, to be evaluated are as follows:

i. Public Servant

The definition of the phrase public servant is taken from Section 21 of

the Indian Penal Code by virtue of 2(y) of Cr.PC.6This was affirmed by the
case of Pukhrajv.Ummaid Ram.7

ii. No Court shall take cognizance of such offence

The mandatory character of the protection afforded by the provision is

brought out by the aforementioned expression. The Courts have interpreted
that the use of the words no and shall make it abundantly clear that the
bar on the exercise of power by the Court to take cognizance of any offence
is absolute and complete.8
The section is mandatory , also because it is the foundation of the
jurisdiction of the Court.9

iii. While acting or purporting to act in the discharge of his official duty

The interpretation of the words accused of any offence alleged to have

been committed by him while acting or purporting to act in the discharge
of his official duty has not been free from difficulty.
It has been the opinion of several Courts that the word while must be
read with the words that follow and is not to be constructed strictly in its
meaning of time.10 The case of Abdul Hafiz11established that where

6
Parmeshwar, 8 A 201
7
Pukhrajv.Ummaid Ram. , AIR 1964 Raj 174
8
State of Orissa v. Ganesh Chandra Jew, AIR 2004 SC 2179
9
Arjan, A 1939 L 479
10
M. Madiahv. State of Karnataka , 1978 CrLJ 734 (Kant)
11
Abdul Hafiz v. Ghulam-Mohi-ud-din , 1997 CrLJ 591
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 sanctions were necessary where the facts showed that the offence was
committed by the accused while discharging his official duties.
It was also held that a temporal meaning should not be given to the words
while acting, etc in the section.12
The leading case in this respect is Hori Ram v. Emperor13. In that case,
after analyszing previous authorities, it was held that the correct
interpretation is whether a public servant, while acting in the discharge of
his official duties, commissioned an act which was attached to the official
nature of his work. This case was approved by the Privy Council decision
of HHB v. King.14

iv. Narrow v. Strict Interpretation

The phraseology used in the concerned section, specificallyany offence

alleged to have been committed by him while acting or purporting to act in
the discharge of his official dutyis capable of being interpreted in a narrow
as well as a wide way.
The Honble MP High Court has opined that the interpreter should tread
carefully.
If these words are construed too narrowly, the section will be rendered
altogether sterile, for, it is no part of any official duty to commit an offence,
and never can be. In the wider sense, these words will take under their
umbrella every act constituting an offence, committed in the course of the
same transaction in which the official duty is performed or purports to be
performed.

12
Phanindra Chandra v. King , AIR 1949 PC 117
13
Hari Ram v. Emperor , AIR 1939 FC 43, 56 What is FC?
14
HHB v. King , AIR 1948 P C 128, 133
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 CONSTITUTIONAL VALIDITY OF SEC.
197 OF CRPC
Article 14, of the Indian Constitution does not render Section 197, ultra
vires as the discrimination is based upon a rational classification15. Public
Servants have to be protected from the harassment in the discharge of the
official duties, while ordinary citizens not so engaged do not require this
safeguard. Section 197(1) does not create any arbitrary discrimination; on the
other hand it makes a reasonable differentia: public Servants not removable
from their respective offices save by or with the sanction of a State Government
or the Central Government, or put in one class and the public servants not
removable from their respective offices even without such sanction are put in
another class. The reason for this classification quite obliviously is that the
public Servant who hold responsible positions and who discharge important
functions shall alone be afforded certain amount of protection from the
harassment resulting from vexatious prosecutions while those who discharge
comparatively unimportant functions or hold less responsible positions would
not be accorded such protection. Such a classifications can in no sense be
regarded as arbitrary or unreasonable and the section is not, therefore,
inconsistent with article 14 of the Constitution.

15
of Matajog Dobey v. H. C. Bhari AIR 1956 SC 44
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CASE STUDY
DINESH SHARMA (DR.) V. STATE OF M.P
2006 (3) MPLJ 291

The present case is a 2006 judgment from the Gwalior Branch of the High Court
of Madhya Pradesh. The verdict was delivered by Syed Ali Naqvi J. and the
matter relates to the protection granted to Public Servants under Section 197 of
the Cr.PC.
The Honble High Court of Madhya Pradesh has attempted to analyse the
phrase "any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty". The Court opined that a
common ground had to be found, as the phrase was capable of both, wide and
narrow construction. This revision petition is preferred against order No. 65 of
1998 whereby, quashing the order passed in a criminal case pending.
It was argued by learned counsel for the applicant that he was Medical Officer,
In-charge of Unit Hospital, Telecom Bn. ITBP, Shivpuri M.P. and he was duty
bound to look after the health of employees and officers of the Bn. including
complainant P. Vijay Kumar. He wrote a confidential letter to complainant P.
Vijay Kumar concerning his health, which is part of the performance of his
official duty, hence, sanction under section 197 of Criminal Procedure Code for
prosecution is a prerequisite for taking cognizance against the applicant by trial
Court.
Contrary to that, it has been argued by learned counsel for non-applicant that
out of enmity, applicant intentionally wrote a defamatory letter to him and
forwarded copy of the letter to his senior officer. His act does not come within

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the purview of the performance of official duty, so no sanction is required to
prosecute applicant in Court of law.
On the grounds of lack of sanction to prosecute the petitioners, and keeping in
mind the fact that the legislative intent was to protect public servants from
unnecessary litigation, the Honble high Court quashed the Criminal Case
pending against the petitioners. In exercise of inherent powers, the Honble
High Court discharged the said quashing of the criminal complaint.

CASE INTERPRETATION BY THE COURT

1) The interpretation of this Honble Court was a reflection of the various

opinions mentioned in the Supreme Court case of Rakesh Kumar Mishra v.
State of Bihar16 . This case establishes that 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.17 It was
opined that 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.

2) The court then moved to discuss the intention of the legislature. It was
observed that the policy of legislature is to afford adequate protection to public

16
Rakesh Kumar Mishra v. State of Bihar, 2006(1 )SCALE15
17
State of Orissa v. Ganesh Chandra Jew, (2004)8 SCC 40
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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 it chooses to exercise it, complete
control of the prosecution. 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 from the protection.

3) The ultimate question, according to the Court, was 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. It was 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.

4) The Court admitted that 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. However, it maintained that
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.

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5) The Court then moved to review the mandatory character of the
protection afforded to a public servant is brought out by the expression "no
Court shall take cognizance of such offence except with the previous sanction".
It was held that the use of the words "no" and "shall" make it abundantly clear
that the bar on the exercise of power by the Court to take cognizance of any
offence is absolute and complete. That is, the complaint cannot be taken notice
of.

6) For assistance, the opinion of learned author William Blackstone was

looked to. According to Black's Law Dictionary, the word "cognizance" means
"jurisdiction" or "the exercise of jurisdiction" or "power to try and determine the
cause". In common parlance, it means taking notice of. A Court, therefore, is
precluded from entertaining a complaint or taking notice of it or exercising
jurisdiction if it is in respect of a public servant who is accused of an offence
alleged to have been committed during the discharge of his official duty". 18
7) Finally, the Court moved to the issue of narrow and wide interpretation,
and the common ground to be found. In the opinion of the Court, the words
any offence alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty employed in section 197(1) of the
Code, are capable of a narrow as well as a wide interpretation.

The analysis of the court was that if these words are construed too
narrowly, the section will be rendered altogether sterile, for, it is no part of any
official duty to commit an offence, and never can be. However, it was also
cautioned that in the wider sense, these words will take under their umbrella
every act constituting an offence, committed in the course of the same
transaction in which the official duty is performed or purports to be performed.

18
State of Maharashtra v. Dr. BudhikotaSubharao , 1993 (3) SCC 339 (Para 5)
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 The right approach, as determined by the Honble court was to the import
of these words lies between these two extremes.
In support of this contention, the Court relied on the case of Director of
Inspection and Audit and others v. C. L. Subramaniam19.
The Court observed that if the provisions of section 197, Criminal
Procedure Code are examined, it is manifest that two conditions must be
fulfilled before they become applicable;
a) one is that the offence mentioned therein must be committed by a public
servant
b) and the other is that the public servant employed in connection with the
affairs of the Union or a State is not removable from his office save by or with
the sanction of the Central Government or the State Government as the case
may be.
It was held that the object of the section is to provide a guard against
vexatious proceedings against Judges, magistrates, and public servants and to
secure the opinion of superior authority whether it is desirable that there should
be a prosecution. If on the date of the complaint itself it is incumbent upon the
Court to take cognizance of such offence only when there is a previous sanction
then unless the sanction to prosecute is produced the Court cannot take
cognizance of the offence, naturally at that stage, the Court taking cognizance
has to examine the acts complained of and see whether the provisions of section
197, Criminal Procedure Code are attracted.
Further, the case of Matajog Dobey v. H. C. Bhari20 was scrutinized,
wherein it was observed that there must be a reasonable connection between the
act and the discharge of official duty; the act must bear such relation to the duty

19
Director of Inspection and Audit and others v. C. L. Subramaniam, AIR 1995 SC 866
20
MatajogDobeyv. H. C. BhariAIR 1956 SC 44
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that the accused could lay a reasonable, but not a pretended or fanciful claim,
that he did it in the course of the performance of his duty.
Utilizing all these interpretative constructions, the Court came to the
conclusion that the said reference with respect to the character and integrity,
which according to the complainant-respondent amounted defamation, cannot in
any manner be said to be unconnected or not reasonably connected with the
official duties. In the opinion of the Court, these statements in the counter-
affidavit were made by the appellants definitely while acting or at least
purporting to act in the discharge of the official duties namely filing the same in
their defence to the allegations made in the writ petition which they had to do.

ANALYSIS

In the present case:

Firstly, the legislative intention behind the provision is correctly identified to be
to prevent public servants from being vexed with unrequited litigation which
hampers their work. It was to enable public servants to discharge their duties
without being antagonised by unnecessary litigation. The end aim of this step
was to ensure the smooth functioning of the public service branch of the Indian
Government Administration.

Further, the Court has been correct to hold that the words any offence alleged
to have been committed by him while acting or purporting to act in the
discharge of his official duty employed in section 197(1) of the Code, are
capable of a narrow as well as a wide interpretation. If these words are
construed too narrowly, the section will be rendered altogether sterile, for, it is
no part of any official duty to commit an offence, and never can be. In the wider

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sense, these words will take under their umbrella every act constituting an
offence, committed in the course of the same transaction in which the official
duty is performed or purports to be performed. The right approach to the import
of these words lies between these two extremes. While on the one hand, it is not
every offence committed by a public servant while engaged in the performance
of his official duty, while is entitled to the protection of section 197(1), an act
constituting an offence, directly and reasonably connected with his official duty
will require sanction for prosecution under the said provision".
"Use of the expression "official duty" implies that the act or omission must have
been done by the public servant in the course of his service and that it should
have been the discharge of his duty. The section does not extend its protective
cover to every act or omission done by a public servant in service but restricts
its scope of operation to only those acts or omissions which are done by a public
servant in discharge of official duty.

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CONCLUSION
S. 197 of the Code of Criminal Procedure, 1973, is essentially a beneficient
legislation. As has been highlighted repeatedly during the course of this study,
the intention behind the promulgation of such a Section can be gleaned to be to
the prevention of harassment of public officials by way of frivolous or malicious
prosecution.

Over the course of this study, 6 judgments rendered by the Honble High Court
of Madhya Pradesh have been analyzed. The focus of the analysis was to draw
out the relevant principles of statutory interpretation adopted by the Court in
respect of different factual scenarios.

In conclusion, therefore, the authors would like to present an overview of the law,
as interpreted and stated by the Honble High Court of Madhya Pradesh.

Public servant is to be defined with reference to S. 21 of the IPC, read with the
wording of S. 197 of the Code. It was concluded that the term does not include
officers of public undertakings, because (with reference to S. 197) even while
they might be acting in the interests of the Central or State government, they
would be employed in connection with the affairs of the undertaking itself and
not the affairs of the Union or State government.

The usage of the words no court and shall in S. 197 imply that there is an
absolute prohibition on the Court from taking cognizance of a matter without
corresponding sanctions from the appropriate government. The Court has
expounded that absent the mandatory requirement of sanction, the intention of
the legislature behind S. 197 would be defeated and public officials would be
susceptible to harassment. Therefore, the only sound construction in this respect
is that which makes the requirement of sanction mandatory on every Court.
Page | 17
One question that recurs through a number of the judgments is as to which acts
are covered under the ambit of the protection granted by S. 197 of the Code. It is
in this respect that a march of law may be observed across judgments.

As repeatedly highlighted, S. 197 is essentially a beneficial legislation, which

should be interpreted liberally or widely. While a narrow construction would
render S. 197 sterile, even a liberal construction must respect certain limits. What
S. 197 seeks to protect is any misfeasance committed by the public servant,
having a legitimate link to the discharge of his official duties. However, what S.
197 cannot be construed to protect is a malfeasance so committed by the public
servant. That is to say, an offence or an act which is in itself prohibited by law
cannot be construed to come within the ambit of liberal construction of this
Section.

It may be concluded that S. 197, being a beneficient legislation, would protect

even those acts which are clearly contradictory to law and bear no link to the
discharge of official functions as a result of its wide construction. However, this
would be a thoroughly absurd consequence of the Section, which would also be
contrary to common sense. It is presumed that Parliament did not intend absurd
consequences to follow from its Act, and that it expected the Act to be construed
with common-sense.

Therefore, across judgments, it was noted that any offence per se contrary to law,
and having no link to the discharge of official duty, was not afforded the
protection of S. 197 by the Court.

Therefore, the interpretation of S. 197 of the Code by the Honble High Court of
Madhya Pradesh has been comprehensively studied.

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BIBLIOGRAPHY
BOOKS

Justice GP Singh, Principles of Statutory Interpretation, 13th edition, LexisNexis Butterworths

R.V. Kelkar, Criminal Procedure, 7th edition, Eastern Book Company Lucknow

STATUTES

Code of Criminal Procedure, 1973

Prevention of Corruption Act, 1988

Indian Penal Code, 1860

WEBSITES

http://supremecourtofindia.nic.in/clist_bm/2012/bm_dl21012013.pdf

REPORTS

41stLaw Commission Report,

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