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Prosecution without obtaining sanction under Section 197 crpc

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Criminal Law

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Question: Prosecution launched without obtaining sanction from the government under Section 197 crpc? I am a police inspector and being a police officer I have arrested four people when they were gambling IPL match. Total thirty nine lakh sixty eight thousand was recovered from his possession along with twenty seven mobile phones. They make a complaint to the superior officer that I have stolen one crore fifty lakh rupees from their possession. Which is false and frivolous. 

Now the officer has lodged an FIR against me, three sub-inspector and nine constables. The police have filed a charge sheet. The Magistrate has taken cognisance. My advocate pleaded that the prosecution is against the provisions of Section 197 crpc because cognisance has taken without a valid sanction from the state government. The court has rejected our plea. Please suggest in the circumstances of my case. 

Asked from: Uttar Pradesh

You want the protection available to the government servant under Section 197 of the code of criminal procedure. The provisions of Section 197 protects the government servant against the malicious and frivolous prosecution when he committed the alleged act in the discharge of his official duty. 

Prosecution without sanction under Section 197 crpc

It is not necessary that every offence committed by a public servant requires sanction for prosecution under Section 197 of the Criminal Procedure Code. 

Sanction under Section 197 crpc is mandatory for the prosecution of the government servant who is removable from the service save by or with the sanction of the Government.

Superior officers like IAS, IPC, PCS and Judges have such immunity from prosecution because they are removed from the service only by the sanction of the government. 

Removed from service without sanction of government

If a government servant is subject to removal from his service by the order of a senior officer or an authority other than the government then he cannot invoke Section 197 crpc.

According to section 3 of the U.P. Government Servant (Discipline and Appeal) Rules 1999, the police inspector can be removed by the Deputy Inspector General of Police. Government sanction is not necessary for removal and dismissal of the police inspector. 

When government sanction is not necessary for your removal from service hence, you cannot claim protection granted to government servants under Section 197 crpc.

Essential conditions for invoking Section 197

There are three essential conditions for invoking Section 197 of the code of criminal procedure. 

  1. The accused is a government servant. 
  2. He committed the offence in discharge of his official duty.
  3. He is removable from the service save by or with the sanction of the Government.

The first two elements are existing in your case. In State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 the Supreme Court has explained that when an act is said to be done in the discharge of his official duties. The court held that:

If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.

If the alleged act is not the part of his official duty it could not be treated as an act in discharge of his official duties. Therefore, provisions of Section 197 will not attract.

Your team had arrested the culprits indulging in betting on IPL matches. That act is part of your official duty and it has a reasonable connection with your official duty. 

Since, government sanction is not necessary for your termination or removal from service, hence, the provisions of Section 197 crpc don’t apply in your case. 

The charge sheet and cognisance taken by the court on the charge sheet is valid. There is no impediment in respect of the prosecution. The prosecution without obtaining sanction of government under Section 197 crpc is valid.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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