AYUB S. PATHAN,
Legal Adviser,
State CID (Crime), Pune
Date – 14/08/2009
*
▪ F.I.R. and contents of F.I.R.,
▪ responsibility of SHO before drafting the FIR of
economic offences,
▪ Delay in F.I.R.,
▪ Panchnama,
▪ Case diary,
▪Various Supreme Court Rulings in these connections,
And
▪ → We can restate the subject for convenience as under.
" F.I.R. in economic offences, how it differs from
the F.I.R. of other offences and Initiation of
Investigation".
First of all we have to find ‘what economic offence’ means? Actually the term ‘economic offence’ so far is not defined in any law then we must try to define the same. Shall I ask somebody to define the same?
Define Economic offence –
Economic – Matter connected with the trade and industry, profitable, commercial, financial, monetary or the money making things.
Offence - Any illegal act, bridge crime or violation as per the dictionary meaning.
Though new terminology the concept is not new to law actually the frauds involving the monitory losses or gains which we took or registered it within the ambit of section 405,406,408,409,420,467,468,471, R/W. Read with 120 (B) of Indian Penal Code and also u/sec. 18, 24 and 35A of the Banking Regulation Act, are term as economic offences in the present time, considering growth of industrial, financial, co-operative and various Government schemes involving huge amounts.
Therefore factually the FIR which should be recorded for these offences will not defer legally. But some precautions and care should be taken to avoid the discrepancies while recording the same which I will deal the same in the letter part of this note.
As we all know what FIR means which actually is not defined anywhere in Cr.P.C.. But to understand the same we have to go to section 154 of Cr.P.C. which run as under-
Section 154 -
Information in cognizable cases – (1) Every information relating to the commission of a cognizable offence, if given to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the state Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Section 154 Cr.P.C. deals with information given to the police officer and reduced into writer or the statement given writing by signing the same and substance thereof shall be recorded in the book kept by such police officer in respect of commission of cognizable offence.
The principal object of FIR is to set the criminal law in motion. The requisite of FIR is that the information so received either orally or in writing must disclose a cognizable offence which must be entered in to the book kept by Station House Officer (SHO) popularly known as ‘Station Diary’.
Contents - FIR is not an encyclopedia and need not contain an exhaustive account (2003 Cr.L.J. 2322). But still must contain necessary ingredients of the offence on the basis of which the investigation can be started. It does not matter whether the person lodging the report had witnessed the offence or not, nor it is necessary that all detail should be mentioned in the report about the manner of occurrence, the participants in the crime and the time and place of occurrence.
Delay in FIR – It is settled law that, delay in filing FIR is not a ground to doubt the prosecution case. Unless there are indications of fabrication, the court can not reject the prosecution version which is substantiated by the evidence, merely on the ground of delay. In a recent case of Amar Singh V. Balwinder Singh (AIR 2003 SC 1164), their Lordships of the Supreme Court held thus :- " There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR".
Law has not fixed any time for filing FIR, as such a delayed FIR is not illegal. A mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case abroad. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. Where eye-witness are reliable and trustworthy, mere delay in filing FIR would be no ground to discard the entire prosecution case.
Any delay in FIR must be explained upon the fact in circumstances of each case. Normally the delay is to be avoided to clear the doubts and suspicion in the mind of the Court regarding the FIR being fabricated or concocted.
In case of reasonable delay the court has to see whether plausible explanation was offered and if offered whether it was satisfactory. (AIR 2006 SC 2002)
How it Differs from other offences - Actually though the contents of the FIR in economic offences does not differs from the FIR of other offences in terms of its contents. But the investigation machinery is directed towards a particular direction in connection with the offence alleged, incase of economic offences. The basis of the FIR in economic offences is the documentary evidence. The evidence as we all know is either oral or documentary. In case of other offences we me not have chance to collect documentary evidence, which is always a direct evidence but we have to carry out the investigation based upon circumstantial. In case in economic offences we have direct evidence of fraud, forgery, cheating and even the conspiracy at some point of time.
We can state some of the instances as under regarding the economic offence if committed in relation to –
i) In cases of financial institutions like co-operative societies, credit co-operative societies, Banks etc. – The statement of account in respect of act alleged, deposit and withdrawal receipts, submission of audit report and inspection of books of accounts, and as such directions-circulars, regulations issued by Reserve Bank of India under Banking Regulation Act, 1949 etc.
ii) In cases of Government Offices, offices of the local bodies and semi Govt. authorities – The official orders issued involving financial stakes, Government resolutions, subsidies (if any ) declared by the Government, bills submitted, orders of approval and release of payments, treasury remarks and passing orders, policy decisions of the Government, project report in respect of the schemes of the Government, project cost, completion report, amount appropriated for the same and registered maintained for the same etc.
iii) In cases of co-operative societies, credit co-operative societies, trusts, organizations, companies (public and private Ltd) – certificate of incorporation, memorandum of association and articles of association, books of account, muster rolls, trust deeds, IT returns, audit reports, challans and invoices, orders, statement profit and losses. Etc.
These are some of the instances wherein we can have documentary evidence in economic offences, at the time of registration of offences or immediately after the FIR.
Precautions while recording FIR and investigation, Panchnama and case diary. While recording the FIR we have to gather the above said documentary evidence and the substance there of can be stated in the FIR along with the contents and essential ingredients of the offence alleged. The concise statement of allegation should be stated in the words of informant and the contents of the document or the directions as the case may be, must be clearly stated and ambiguous statements should be avoided. The substance of the offence must be stated in brief.
Now in respect of the investigation the documents as earlier stated must be seized by drawing the panchanama and the search and seizure can be carried out under section 94 and section 102 of Cr.P.C.
At the same time in case of absconding offenders the procedure under section 82 and 83 of Cr.P.C. can be followed.
In case of banking and financial companies the procedure as laid down by the Reserve Bank of India under The Banking Regulation Act 1949 is to be followed. The guidelines as laid down in section 18(cash reserves), sec.24(maintenance of percentage of assets), sec.30(audits) and sec.35(inspection By RBI) are to be followed and the failure to comply the same liable for the penalties as laid down in section 46 of the said act.
At the same time deeds and misdeeds of the culprits is to be recorded in respect of the mismanagement of the financial institutions or banks. (AIR 2006 SC 915)
To sum up we have to note that the documentary evidence made available or seized after the recording of FIR is to be linked with the rights, duties and liabilities of the accused persons so as to bring home the ingredients of the offences registered against the accused and the same should be corroborated by the oral evidence of the witnesses from the concerned departments, so as to secure conviction. The SHO if conducts the investigation on cardinal principles of the criminal law, not to look over single piece of evidence which may be helpful in the interests of the investigating agency as well as the State.
Thank You.
Adv. Ayub S Pathan,
Legal Adviser,
StateCID(Crime), Pune
Thursday, August 13, 2009
AYUB S. PATHAN,
Legal Adviser,
Maharashtra State CID (Crime), Sangam Bridge,Pune-41105
▪ Sanction to prosecute the public servants u/sec. 197
Cr.P.C. and other related matters.
Sanction to Prosecute u/sec 197 Cr.P.C. of public
Servants.
Sanction to Prosecute the public Servants u/sec 197 Cr.P.C.
**Most Burning- as Public servants are let to Scot free for want
of sanction and
**Worrying Issue- as Sanctions are either delayed or refused
] It is to illustrate this aspect, it will be helpful to reproduce relevant extracts of sec. 197 of criminal procedure code 1973.
Sec.197. (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 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 employees or on the case may be, was at the time of commissioner of the alleged offence employed, in connection with the officers of the union, of the central Government!
b) In the case of a person who is employed or on the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of state, of the state Government. [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 (I) of Article 356 of the constitution was in force in a state, clause (b) will apply as it for the expression, "State Government" Occurring there in, 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 Force 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.
(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, & thereupon the provisions of that subsection will apply as it for the expression "Central Government" Occurring therein, the expression "State Government" were substituted.
] It is further to state that, bare perusal of this section it can be understood that, before this section can be invoked in the case of a public servant two conditions ,"sina-qua-non" must be satisfied i.e. (a) That the accused was a public servant who was removable from his office only with the sanction of the state Government & (b) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharged of his official duty. This section is an exception to General rule as contained therein in Sec. 190 Cr.p.c., that, the cognizance of any offence can be taken by the respective magistrates as enumerated therein.
I will discuss both these conditions in later part of my notes but prior to that, the object of this provisions needs be elaborated.
A] The object of this section is to save official from vexatious proceeding against judges, magistrates & public servants but it is not a part of policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. There must be severable nexus between act alleged constituting an offence & acts done or purported to be done under the colour of his office while performing his official duties. But it the act alleged in performed while acting in discharge of official duty the Government will not allow to prosecute him unless the sanction is obtained.
With this object the section puts a bar from taking cognizance by courts for an offence by public servant while acting or purporting to act in discharge of his official duties.
B] It will be pertinent to note the ancillary object of this provision. The provisions of section 197 do not give any immunity to the public servant from being prosecuted. They are not in the nature of General exceptions of under Indian penal Code 1908. They do no say nor purport to suggest that, nothing is an offence which is committed by a public servant during the course of the discharge of his official duties. Act which amounts to an offence will still be so, even if it is done by a public servant. The protection so granted to public servant is not a license to commit an offence. Law does not make distinction between the acts done by private person & that done by a public servant so far as criminality of the same in concerned.
Though the protections deserves to be granted to the public servant if he is discharging his official duty, even if there might be some lapses, still it cannot be extended, so spaciously even in respect of the accusation which tends to show that, this act has absolutely no nexus what so ever in his official duty. The object is obviously aimed as exposing the dishonest public servants in their acts which are wholly unconnected with their official duty on the office they hold however merely opens an avenue for them to commit such acts by virtue of their position of their official & capacity as public servant. The scope of this section is discharged by Hon’ble Bombay high courts of judicature in Nandu Zambanlikr v/s Shrikant Naik & another 1999(1)B.Cr.C.196 & In Mrs. Mary Kutty Thomas & Mr. Pawar D.C.P. Zone IV & another, 1983(2) B CR 73.
C] As I have already stated in para-, the two conditions must be full filled for applications of the provisions & Sec. 197, i.e.
(I) The offence is committed by a public servant who is not removable form his office save by or with the sanction of Government, And.
(II) The alleged act complained off is committed by him while acting or purporting to act in discharge of his official duty.
If both these conditions are satisfied the sanction must follow as enumerated in Sec. 197 Cr.p.c.
The Hon’ble Apex court in B. Saha v/s M.S.Kochar ( 1997(4)sec. 177) The question how should the expression, " any offence alleged to have been committed by him while acting or purporting to acting the discharge of his official duty." or "Official duty" be understood? & what does it mean? " Official act" or "official duty" means an act done or duty done by an officer in his official capacity.
It was held in B. Sahas case (supra)(pg.184-85,Para- 17) – "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 Sec. 197 (1) of the code, are capable of a narrow as well as a wide interpretations. It these words are construed too narrowly, the section will be rendered altogether sterile; for it is no part of an official duty to commit an offence & never can be. In 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, the right approach to 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, which is emitted to the protection of Sec.197 (1), an act constituting an official directly & reasonably connected with his official duty will require sanction for prosecution under the said provision.
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 official duty then it must be held to be official, to which applicability of section 197 Cr.p.c. can not be disputed, as held by Supreme Court in SLP (cri) 5453107.
D] It is submitted that, considering the above discussion the question as to whether the protection of section 197 Cr.P.C. is available to all or every public servant or not? will have to be answered after the two conditions being satisfied as aforesaid. Firstly the important conditions for necessity of sanction is that, the public servant must be removable from his office save by or with the sanction of the Govt. If a public servant is removable by the superior authority, not being the Govt. The question of sanction will not arise. The provisions of section 197 (1) Cr.P.C. are be applicable to, Judges, Magistrates and those public servant who can not be removed from their office except the sanction of the Govt. Sanction of the Govt. in necessary for prosecution of a Judge, but in case of the public servant, he must come within the category of public servant not removable from their office without sanction of the Govt. The sanction does not apply to public servants whom some lower authority as by law or rule or order been empowered to remove. It clearly intends to draw a line between a public servant and to provide that only in the case of the higher ranks should the sanction of the state Govt. to their prosecution be necessary. That, the sanction under section 197 will be required, where the public servant is removable by the Govt. by or with the sanction of the Govt. Hence if the public servant belongs to the category that, he is not removable from his office except by or with sanction of the Govt. Then the provision of 197 Cr.P.C. will come in to play, to protect him & not other wise. Act this Juncture it will be necessary to mention that even if the public servant fulfills the first condition, that, he is not removable save by or with the sanction of the Govt. then also immunity can be granted to him from prosecute further he will have to clear the litmus test that, the act complained off was done while acting or purporting to act under colour of his office or while discharging his official duty. Therefore both these conditions works as rider from getting protection of Sec. 197 Cr.P.C. & runs concurrently.
It is not the "duty" which requires examinations so much as the "act" because the official act can be performed both in discharge of the official duty as well as in dereliction of it. A line has to be drawn between the narrow inner circle of strict official duties & acts out side the scope of official duty. In Bhagwan Prasad Srivastava v/s N.P.Mishra, AIR 1970 SC 1661 the Apex court has distinguished the act & duty in official capacity.
The moot point whether the accused has performed the unpunished act/ acts acting in discharge of official duty can not be decided in summery fashion, would be decide & during the course of frail, should be left open to be decided in the main Judgment which may be delivered on conclusion of the trial. In Rajkishor Roy v/s Kamleshwar Pandey AIR 2002 SC 2861, the Hon’ble apex court has laid down, to decide the factor of an act done in official capacity as the conclusion of trial. It can be therefore said that, if first condition in satisfied by the public servant, he has to face the trial to show that, the act done, is done in the official capacity.
E] It is now expedient to note that, the provision of Sec. 197 (1) Cr.P.C. are quite clear in it’s applicability to Judges, magistrates & those close of public servant who are not removable save by or with the sanction of the Govt., if the act complained off in act done or purported to be done in discharge of official duty.
Now to deal with sub-section (2) & (3) of Sec. 197 Cr.P.C. It is evident that, The provision of these sub-section are for the protection of the members of the armed forces while acting or purporting to act. in discharge of their official duties. As in extreme cases the Armed forces are employed & for the maintenance of public order, a duty which in ordinary course falls on the police sub-section (4) empower the state Govt. in such cases to accord sanction. Sub-section (3) empowers the state Govt. to notify such clause of the member of the force which is charged with the maintenance of public order for affording protection to it against prosecution without sanction. It is for the state Govt. to determine which clause of forces should be specified in such notification. Admittedly the provision of Sec. 197(3) can be extended to all such forces charged with maintenance of public order. As for as extension of the applicability & Sec. 197(3) Cr.P.C. there is no notification issued by state of Maharashtra classifying such other forces for the protection to be granted under these provisions. Even the public servants of other department i.e. other than the forces engaged in maintenance of Law & order are not given immunity from prosecutions. In the absence of such notification or without extending the application of sec. 197 (2) by notification u/sec. 197 (3) the sanction for prosecution of public servants, who are removable by their office without prior sanction of the Govt. is not necessary.
F] It in further to submit that, apart from this legal position, the various High Court and Hon'ble supreme court has held in many cases that, where the accused public servants were alleged to have fabricated records, committed fraud or misappropriation and as such offences u/sections. 161,167,217,218,409,467,468 or 500 I.P.C. for their, personal gain and not on a part and their official duty sanction ,under Sec.468,467,471,420,120-B sanction to prosecute public servant for forgery of valuable security conspiracy, & cheating no sanction is required from the very act changed with, as it is not a part of duty of public servant while discharging his official duties to commit forgery & indulge in to conspiracy AIR 2004 SC 730 state of U.P. v/s M.P. Gupta.
G] Under the facts & circumstances stated herein above, prior to according sanction for prosecution of public servant we have to testify it’s necessity by weighing evidence of act alleged against him & whether he satisfies two conditions before seeking sanction; That is, (a) Whether such public servant falls in to category of "not removable from office save by or with the sanction of Govt."
(b) Whether he has acted or purporting to act in discharge of official duties at the time of commission of offence. Of the answer to both these question will not all be required for prosecution of such public servant & not other wise.
It is stated that, the Govt. Of Maharashtra has observed some irregularities in prosecution of protected pubic servants U/Sec. 197(1) of Cr.P.C. without sanction of Govt. Hence the Govt. of Maharashtra has issued a circular dtd. 22/12/2006 being Govt. circular No. ENQ-1106/pra.kra.99/POL-2 Mantralaya Mumbai, & there by directed to submit all matters to it for seeking sanction to prosecute the protected public servants u/sec. 197(1) Cr. P. C.
It is also to state that, except the aforesaid circular, I have not came across any other specific notification from any other Department of Govt. of Maharashtra U/Sec. 197(3) of CR.P.C. 1973 either in respect of this subject, or for applicability of this provision to Non-Gazetted officers or other Govt. Employees of lower ranks in other department except the applicability to the forces engaged with maintenance of law order.
AT the same time, I would like to put my concern on record that, In spite of specific directions of central Govt. of by the Hon’ble Apex Court, the Govt. of Maharashtra or the concerned sanctioning authorities in the state has considerably delayed the sanction for the prosecution of public servants or other non-Gazzetted officers, which is Not at all in the interest of Govt. & the prosecution Agency. In this regard I would like to reproduce the circular of Govt. of India, on the hard copy could not be made available for your kind perusal.
‘‘ Govt. of India ’’
=) Minister of personal, public Grievances And pensions Department of personal Training.
- circular No. 399/33/2006 – AVD – III
- OFFICE MEMORANDUM.’’
With a subject Guidelines for checking delay in grant of sanction for Prosecution,
1) The Hon’ble Delhi High Court on it’s own motion has taken sue-motu Cognizance of newspaper report, relating to Long delays in grant of sanctions for prosecution cases. The Hon’ble Court has expressed it’s concern over the non-action on the part of Competent authorities in granting sanctions for the prosecution, despite the fact that, the Hon’ble Supreme Court in Vineet Narain V/s Union of India, AIR 1998 SC 889 directed that, ‘‘ the time Limit of three Months for grant of sanction for prosecution must be strictly adhered to However, additional time of one month may be allowed where Consultation is required with the Attorney General (A.G.) or any law officer in the AG’s office.’’
2) Delay in disposal of sanction of prosecution cases is not in the interest of the Govt. The Govt. has keen that, innocent officers should not needlessly face harassment through Prosecution on account of failure of the competent authority to appreciate Property the Fact brought out in the CBI Investigation reports. In order to ensure that, cases for grant of sanction for Prosecution are disposed off quickly those should not be any delay in disposing the same.
Through it appears to have been issued in respect of CBI cases, it’s validity can not be disputed in respect of other agencies entrusted with investigations. At the same time the decision Hon’ble Supreme Court in Vineet Narrains case is binding on all the respective state Govts. also.
Not only this but the Central Vigilance Commission has issued circular No. 8(1) (b)/98 (3) where in same issued has been taken up Seriously by CVC, New Delhi.
There have been a number of decisions of Hon’ble Supreme Court in which the law has been clearly laid down on this issues some of the landmark prosecutions are laid down in following cases.
Jagjitsingh V/s state of Punjab, 1996 Cr. L.J. 2962.
State of Bihar V/s P. P. Sharma, AIR 1991 SC 1260.
SP (CBI) V/s Deepak Chaudhary, AIR 1996 SC 186
Vineet Narrain V/s Union of India , AIR 1998 889.
Where in the clear guidelines are laid down in respect of Grant of Sanction and the time limit within which it should be granted.
The Constitution Bench of Hon’ble Apex Court Comprising of Justice N. Santosh Hegde, J. S. N. Variava, J. B. P. Singh, J. H. K. Sema J. & S. B. Sinha in JMM Bribarry case, has observed that, ‘‘ The Democracy Itself will be at a stake it sanction is delayed or refused in spite of having overwhelming material showing that, a prima-facie case is made out. ’’
To conclude with, this being the position of law of Guidelines issued by Hon’ble Supreme Court, from time to time, we have to seek sanction for those public servants only to whom the provisions of sec. 197(1) are applicable or in respect of whom the Provision of sec. 197(2)are made applicable u/sec. 197(3). Otherwise the sanction is not necessary for Every public servant as a matter of routine.
As such, If possible, with due respect, we should make the representation to the Government with due respect of solidarity to consider the matters of sanction at the earliest. Even the request for, amending laws in respect of it, or for making provisions for deemed sanction can also be made. Whatever suggestion we propose to make will be Surely in the interest of Govt, prosecution Agency and public at large & will also thereby the ends of Justice would be Secured.
Thank You.
Pune :-
Date :- 13/08/2009
Ayub S. Pathan
Legal Adviser,
State CID, M.S. Pune
-------------------------------------------------------
Legal Adviser,
Maharashtra State CID (Crime), Sangam Bridge,Pune-41105
▪ Sanction to prosecute the public servants u/sec. 197
Cr.P.C. and other related matters.
Sanction to Prosecute u/sec 197 Cr.P.C. of public
Servants.
Sanction to Prosecute the public Servants u/sec 197 Cr.P.C.
**Most Burning- as Public servants are let to Scot free for want
of sanction and
**Worrying Issue- as Sanctions are either delayed or refused
] It is to illustrate this aspect, it will be helpful to reproduce relevant extracts of sec. 197 of criminal procedure code 1973.
Sec.197. (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 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 employees or on the case may be, was at the time of commissioner of the alleged offence employed, in connection with the officers of the union, of the central Government!
b) In the case of a person who is employed or on the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of state, of the state Government. [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 (I) of Article 356 of the constitution was in force in a state, clause (b) will apply as it for the expression, "State Government" Occurring there in, 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 Force 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.
(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, & thereupon the provisions of that subsection will apply as it for the expression "Central Government" Occurring therein, the expression "State Government" were substituted.
] It is further to state that, bare perusal of this section it can be understood that, before this section can be invoked in the case of a public servant two conditions ,"sina-qua-non" must be satisfied i.e. (a) That the accused was a public servant who was removable from his office only with the sanction of the state Government & (b) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharged of his official duty. This section is an exception to General rule as contained therein in Sec. 190 Cr.p.c., that, the cognizance of any offence can be taken by the respective magistrates as enumerated therein.
I will discuss both these conditions in later part of my notes but prior to that, the object of this provisions needs be elaborated.
A] The object of this section is to save official from vexatious proceeding against judges, magistrates & public servants but it is not a part of policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. There must be severable nexus between act alleged constituting an offence & acts done or purported to be done under the colour of his office while performing his official duties. But it the act alleged in performed while acting in discharge of official duty the Government will not allow to prosecute him unless the sanction is obtained.
With this object the section puts a bar from taking cognizance by courts for an offence by public servant while acting or purporting to act in discharge of his official duties.
B] It will be pertinent to note the ancillary object of this provision. The provisions of section 197 do not give any immunity to the public servant from being prosecuted. They are not in the nature of General exceptions of under Indian penal Code 1908. They do no say nor purport to suggest that, nothing is an offence which is committed by a public servant during the course of the discharge of his official duties. Act which amounts to an offence will still be so, even if it is done by a public servant. The protection so granted to public servant is not a license to commit an offence. Law does not make distinction between the acts done by private person & that done by a public servant so far as criminality of the same in concerned.
Though the protections deserves to be granted to the public servant if he is discharging his official duty, even if there might be some lapses, still it cannot be extended, so spaciously even in respect of the accusation which tends to show that, this act has absolutely no nexus what so ever in his official duty. The object is obviously aimed as exposing the dishonest public servants in their acts which are wholly unconnected with their official duty on the office they hold however merely opens an avenue for them to commit such acts by virtue of their position of their official & capacity as public servant. The scope of this section is discharged by Hon’ble Bombay high courts of judicature in Nandu Zambanlikr v/s Shrikant Naik & another 1999(1)B.Cr.C.196 & In Mrs. Mary Kutty Thomas & Mr. Pawar D.C.P. Zone IV & another, 1983(2) B CR 73.
C] As I have already stated in para-, the two conditions must be full filled for applications of the provisions & Sec. 197, i.e.
(I) The offence is committed by a public servant who is not removable form his office save by or with the sanction of Government, And.
(II) The alleged act complained off is committed by him while acting or purporting to act in discharge of his official duty.
If both these conditions are satisfied the sanction must follow as enumerated in Sec. 197 Cr.p.c.
The Hon’ble Apex court in B. Saha v/s M.S.Kochar ( 1997(4)sec. 177) The question how should the expression, " any offence alleged to have been committed by him while acting or purporting to acting the discharge of his official duty." or "Official duty" be understood? & what does it mean? " Official act" or "official duty" means an act done or duty done by an officer in his official capacity.
It was held in B. Sahas case (supra)(pg.184-85,Para- 17) – "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 Sec. 197 (1) of the code, are capable of a narrow as well as a wide interpretations. It these words are construed too narrowly, the section will be rendered altogether sterile; for it is no part of an official duty to commit an offence & never can be. In 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, the right approach to 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, which is emitted to the protection of Sec.197 (1), an act constituting an official directly & reasonably connected with his official duty will require sanction for prosecution under the said provision.
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 official duty then it must be held to be official, to which applicability of section 197 Cr.p.c. can not be disputed, as held by Supreme Court in SLP (cri) 5453107.
D] It is submitted that, considering the above discussion the question as to whether the protection of section 197 Cr.P.C. is available to all or every public servant or not? will have to be answered after the two conditions being satisfied as aforesaid. Firstly the important conditions for necessity of sanction is that, the public servant must be removable from his office save by or with the sanction of the Govt. If a public servant is removable by the superior authority, not being the Govt. The question of sanction will not arise. The provisions of section 197 (1) Cr.P.C. are be applicable to, Judges, Magistrates and those public servant who can not be removed from their office except the sanction of the Govt. Sanction of the Govt. in necessary for prosecution of a Judge, but in case of the public servant, he must come within the category of public servant not removable from their office without sanction of the Govt. The sanction does not apply to public servants whom some lower authority as by law or rule or order been empowered to remove. It clearly intends to draw a line between a public servant and to provide that only in the case of the higher ranks should the sanction of the state Govt. to their prosecution be necessary. That, the sanction under section 197 will be required, where the public servant is removable by the Govt. by or with the sanction of the Govt. Hence if the public servant belongs to the category that, he is not removable from his office except by or with sanction of the Govt. Then the provision of 197 Cr.P.C. will come in to play, to protect him & not other wise. Act this Juncture it will be necessary to mention that even if the public servant fulfills the first condition, that, he is not removable save by or with the sanction of the Govt. then also immunity can be granted to him from prosecute further he will have to clear the litmus test that, the act complained off was done while acting or purporting to act under colour of his office or while discharging his official duty. Therefore both these conditions works as rider from getting protection of Sec. 197 Cr.P.C. & runs concurrently.
It is not the "duty" which requires examinations so much as the "act" because the official act can be performed both in discharge of the official duty as well as in dereliction of it. A line has to be drawn between the narrow inner circle of strict official duties & acts out side the scope of official duty. In Bhagwan Prasad Srivastava v/s N.P.Mishra, AIR 1970 SC 1661 the Apex court has distinguished the act & duty in official capacity.
The moot point whether the accused has performed the unpunished act/ acts acting in discharge of official duty can not be decided in summery fashion, would be decide & during the course of frail, should be left open to be decided in the main Judgment which may be delivered on conclusion of the trial. In Rajkishor Roy v/s Kamleshwar Pandey AIR 2002 SC 2861, the Hon’ble apex court has laid down, to decide the factor of an act done in official capacity as the conclusion of trial. It can be therefore said that, if first condition in satisfied by the public servant, he has to face the trial to show that, the act done, is done in the official capacity.
E] It is now expedient to note that, the provision of Sec. 197 (1) Cr.P.C. are quite clear in it’s applicability to Judges, magistrates & those close of public servant who are not removable save by or with the sanction of the Govt., if the act complained off in act done or purported to be done in discharge of official duty.
Now to deal with sub-section (2) & (3) of Sec. 197 Cr.P.C. It is evident that, The provision of these sub-section are for the protection of the members of the armed forces while acting or purporting to act. in discharge of their official duties. As in extreme cases the Armed forces are employed & for the maintenance of public order, a duty which in ordinary course falls on the police sub-section (4) empower the state Govt. in such cases to accord sanction. Sub-section (3) empowers the state Govt. to notify such clause of the member of the force which is charged with the maintenance of public order for affording protection to it against prosecution without sanction. It is for the state Govt. to determine which clause of forces should be specified in such notification. Admittedly the provision of Sec. 197(3) can be extended to all such forces charged with maintenance of public order. As for as extension of the applicability & Sec. 197(3) Cr.P.C. there is no notification issued by state of Maharashtra classifying such other forces for the protection to be granted under these provisions. Even the public servants of other department i.e. other than the forces engaged in maintenance of Law & order are not given immunity from prosecutions. In the absence of such notification or without extending the application of sec. 197 (2) by notification u/sec. 197 (3) the sanction for prosecution of public servants, who are removable by their office without prior sanction of the Govt. is not necessary.
F] It in further to submit that, apart from this legal position, the various High Court and Hon'ble supreme court has held in many cases that, where the accused public servants were alleged to have fabricated records, committed fraud or misappropriation and as such offences u/sections. 161,167,217,218,409,467,468 or 500 I.P.C. for their, personal gain and not on a part and their official duty sanction ,under Sec.468,467,471,420,120-B sanction to prosecute public servant for forgery of valuable security conspiracy, & cheating no sanction is required from the very act changed with, as it is not a part of duty of public servant while discharging his official duties to commit forgery & indulge in to conspiracy AIR 2004 SC 730 state of U.P. v/s M.P. Gupta.
G] Under the facts & circumstances stated herein above, prior to according sanction for prosecution of public servant we have to testify it’s necessity by weighing evidence of act alleged against him & whether he satisfies two conditions before seeking sanction; That is, (a) Whether such public servant falls in to category of "not removable from office save by or with the sanction of Govt."
(b) Whether he has acted or purporting to act in discharge of official duties at the time of commission of offence. Of the answer to both these question will not all be required for prosecution of such public servant & not other wise.
It is stated that, the Govt. Of Maharashtra has observed some irregularities in prosecution of protected pubic servants U/Sec. 197(1) of Cr.P.C. without sanction of Govt. Hence the Govt. of Maharashtra has issued a circular dtd. 22/12/2006 being Govt. circular No. ENQ-1106/pra.kra.99/POL-2 Mantralaya Mumbai, & there by directed to submit all matters to it for seeking sanction to prosecute the protected public servants u/sec. 197(1) Cr. P. C.
It is also to state that, except the aforesaid circular, I have not came across any other specific notification from any other Department of Govt. of Maharashtra U/Sec. 197(3) of CR.P.C. 1973 either in respect of this subject, or for applicability of this provision to Non-Gazetted officers or other Govt. Employees of lower ranks in other department except the applicability to the forces engaged with maintenance of law order.
AT the same time, I would like to put my concern on record that, In spite of specific directions of central Govt. of by the Hon’ble Apex Court, the Govt. of Maharashtra or the concerned sanctioning authorities in the state has considerably delayed the sanction for the prosecution of public servants or other non-Gazzetted officers, which is Not at all in the interest of Govt. & the prosecution Agency. In this regard I would like to reproduce the circular of Govt. of India, on the hard copy could not be made available for your kind perusal.
‘‘ Govt. of India ’’
=) Minister of personal, public Grievances And pensions Department of personal Training.
- circular No. 399/33/2006 – AVD – III
- OFFICE MEMORANDUM.’’
With a subject Guidelines for checking delay in grant of sanction for Prosecution,
1) The Hon’ble Delhi High Court on it’s own motion has taken sue-motu Cognizance of newspaper report, relating to Long delays in grant of sanctions for prosecution cases. The Hon’ble Court has expressed it’s concern over the non-action on the part of Competent authorities in granting sanctions for the prosecution, despite the fact that, the Hon’ble Supreme Court in Vineet Narain V/s Union of India, AIR 1998 SC 889 directed that, ‘‘ the time Limit of three Months for grant of sanction for prosecution must be strictly adhered to However, additional time of one month may be allowed where Consultation is required with the Attorney General (A.G.) or any law officer in the AG’s office.’’
2) Delay in disposal of sanction of prosecution cases is not in the interest of the Govt. The Govt. has keen that, innocent officers should not needlessly face harassment through Prosecution on account of failure of the competent authority to appreciate Property the Fact brought out in the CBI Investigation reports. In order to ensure that, cases for grant of sanction for Prosecution are disposed off quickly those should not be any delay in disposing the same.
Through it appears to have been issued in respect of CBI cases, it’s validity can not be disputed in respect of other agencies entrusted with investigations. At the same time the decision Hon’ble Supreme Court in Vineet Narrains case is binding on all the respective state Govts. also.
Not only this but the Central Vigilance Commission has issued circular No. 8(1) (b)/98 (3) where in same issued has been taken up Seriously by CVC, New Delhi.
There have been a number of decisions of Hon’ble Supreme Court in which the law has been clearly laid down on this issues some of the landmark prosecutions are laid down in following cases.
Jagjitsingh V/s state of Punjab, 1996 Cr. L.J. 2962.
State of Bihar V/s P. P. Sharma, AIR 1991 SC 1260.
SP (CBI) V/s Deepak Chaudhary, AIR 1996 SC 186
Vineet Narrain V/s Union of India , AIR 1998 889.
Where in the clear guidelines are laid down in respect of Grant of Sanction and the time limit within which it should be granted.
The Constitution Bench of Hon’ble Apex Court Comprising of Justice N. Santosh Hegde, J. S. N. Variava, J. B. P. Singh, J. H. K. Sema J. & S. B. Sinha in JMM Bribarry case, has observed that, ‘‘ The Democracy Itself will be at a stake it sanction is delayed or refused in spite of having overwhelming material showing that, a prima-facie case is made out. ’’
To conclude with, this being the position of law of Guidelines issued by Hon’ble Supreme Court, from time to time, we have to seek sanction for those public servants only to whom the provisions of sec. 197(1) are applicable or in respect of whom the Provision of sec. 197(2)are made applicable u/sec. 197(3). Otherwise the sanction is not necessary for Every public servant as a matter of routine.
As such, If possible, with due respect, we should make the representation to the Government with due respect of solidarity to consider the matters of sanction at the earliest. Even the request for, amending laws in respect of it, or for making provisions for deemed sanction can also be made. Whatever suggestion we propose to make will be Surely in the interest of Govt, prosecution Agency and public at large & will also thereby the ends of Justice would be Secured.
Thank You.
Pune :-
Date :- 13/08/2009
Ayub S. Pathan
Legal Adviser,
State CID, M.S. Pune
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