Proceedings Can Be Quashed Under 482 CrPC Which Are Prima Facie Bad For Want Of Sanction: Allahabad HC

Coverage of this Article

KEY TAKEAWAYS

-The primary objective of Section 197 is to protect the public servants from frivolous criminal complaints. Thus, this Section protects the public servants from unnecessary harassment

INTRODUCTION

-The Code of Criminal Procedure, 1973 contains certain special provisions with regards to the prosecution of public servants and judges. Section 197 of CrPC provides that no Court shall take cognizance of an offense alleged to have been committed by a Judge, Magistrate or Public servant, without the prior sanction of the Union (if the person was employed by the Union) or State Government (if the person was employed in connection with the duties of the State).

PURPOSE BEHIND SECTION 197

-The primary objective of Section 197 is to protect the public servants from frivolous criminal complaints. Thus, this Section protects the public servants from unnecessary harassment. The competent authority under Section 197 has two options. First, it can refuse the sanction if the authority feels that the complaint is frivolous or vindictive; or second, the authority can grant the sanction if it feels that there is prima facie merit in the allegation.

MAHENDRA PAL SINGH LEKHPAL AND ANOTHER V. STATE OF UP

-A recent judgment with respect to the application of Section 197 is the case of Mahendra Pal Singh Lekhpal and Another v. State of UP. In this case, an appeal was filed under Section 482 for quashing the summoning order issued by the Judicial Magistrate, Farrukhabad against the applicant no.

STAGE OF SANCTION

-The appropriate stage of obtaining the sanction is prior to initiation of proceedings. However, in Dharmesh @ Nanu Nitinbhai Shah vs. State of Gujarat, the sanction was obtained after the filing of the chargesheet.

QUASHING AN FIR FOR WANT OF SECTION

-The test for determining the applicability of Section 197 is whether the act or omission of the public officer was in direct connection to the discharge of his public duty.

ANALYSIS OF SECTION 482 OF CRPC

-Section 482 of CrPC provides "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice"

ABATEMENT OF CRIMINAL PROCEEDINGS

-The Supreme Court has categorized the criminal proceedings into different categories on the basis of which they can be quashed. In the case of State of Haryana v. Bhajan Lal 1992 AIR 604, the court held that where no prima facie case is made out against the accused even after accepting the allegations of the FIR at their face value, the FIR must be quashed. Furthermore, if the allegations made in the FIR constitute a non-cognizable offense, then an investigation into the same can be permitted only when the order of the Magistrate to this effect is obtained under 155(2) of IPC.

CONCLUSION

-There have been several instances where unscrupulous complaints have been filed against public servants with the malicious motive of hindering the discharge of public duty.

KEY TAKEAWAYS

• The primary objective of Section 197 is to protect the public servants from frivolous criminal complaints. Thus, this Section protects the public servants from unnecessary harassment
• Protection can be availed under this Section "only when alleged act done by the public servant is reasonably connected with the discharge of his official duty, an offence committed outside the scope of the duty of the public servant would certainly not require sanction".
• Where sanction is obtained after charge sheet is filed but prior to recording of evidence and framing of charges, the cognizance would be irregular but not illegal.

INTRODUCTION

The Code of Criminal Procedure, 1973 contains certain special provisions with regards to the prosecution of public servants and judges. Section 197 of CrPC provides that no Court shall take cognizance of an offense alleged to have been committed by a Judge, Magistrate or Public servant, without the prior sanction of the Union (if the person was employed by the Union) or State Government (if the person was employed in connection with the duties of the State).

Other than Section 197, Section 196 also requires prior sanction before the Court can take cognizance of any offense under section 153A, section 153B, Section 295 A, section 505(1) to section 505(3) of the Indian Penal Code or a criminal conspiracy to commit these offenses. In several instances, the Courts have quashed proceedings for want of sanction under Section 196 as well.

PURPOSE BEHIND SECTION 197

The primary objective of Section 197 is to protect the public servants from frivolous criminal complaints. Thus, this Section protects the public servants from unnecessary harassment. The competent authority under Section 197 has two options. First, it can refuse the sanction if the authority feels that the complaint is frivolous or vindictive; or second, the authority can grant the sanction if it feels that there is prima facie merit in the allegation.

In the case of Matajog Dubey vs. H.C. Bhari AIR 1956 SC 44, it was held that it is essential to protect public servants "from harassment in the discharge of official duties" and the same safeguards need not be accorded to ordinary citizens.

The Apex Court in the case of Pukhraj vs. State of Rajasthan and another (1973 2 SCC 701), held that for the applicability of this Section, the "offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty"

However, this Section also has certain limitations. The Apex Court in the case of Indra Devi v. State of Rajasthan & Anr [SLP (Crl) No. 1605 of 2018 held that acts of misappropriation, fabrication of records or cheating could not be considered to be done by the public officials in the discharge of official duty.

MAHENDRA PAL SINGH LEKHPAL AND ANOTHER V. STATE OF UP

A recent judgment with respect to the application of Section 197 is the case of Mahendra Pal Singh Lekhpal and Another v. State of UP. In this case, an appeal was filed under Section 482 for quashing the summoning order issued by the Judicial Magistrate, Farrukhabad against the applicant no. 1 (Lekhpal) and applicant no. 2 (Kanoongo), who were both public servants under the Consolidation department. The applicants were alleged to have illegally measured the plot of the opposite party. The applicants alleged that the Judicial Magistrate issued the summons without considering the fact that the alleged offense was committed by the applicants in discharge of their public duty. The applicants had also contended that they were unaware of any order issued by the Settlement Officer Consolidation for stopping the measurement of the plot.

The Court noted that the applicants were public servants and hence want of sanction would vitiate the criminal proceedings against them. Even where the public officer is summoned for committing a mistake or for acting in excess of his powers, the requirements of sanction would be mandatory.

Furthermore, the Court observed that Section 197 has certain limitations. Protection can be availed under this Section "only when alleged act done by the public servant is reasonably connected with the discharge of his official duty, an offence committed outside the scope of the duty of the public servant would certainly not require sanction".

Thus, the Court held that where proceedings are ex facie bad for want of sanction, there the High Court must quash the proceedings under Section 482 of Code of Criminal Procedure. In the instant case, summon issued by the Judicial Magistrate was set aside and the application was granted.

STAGE OF SANCTION

The appropriate stage of obtaining the sanction is prior to initiation of proceedings. However, in Dharmesh @ Nanu Nitinbhai Shah vs. State of Gujarat, the sanction was obtained after the filing of the chargesheet. The sanction was obtained before the recording of evidence and framing of charges. The Court, under Article 136 of the Indian Constitution, held that failure to obtain the sanction prior to initiation of proceedings would make the cognizance by Magistrate irregular but not illegal and hence there was no need to interfere and start proceedings with a fresh recourse.

The Apex Court in the case of State of Karnataka and another v Pastor P. Raju (2006) differentiated between issuance of process and taking cognisance of an offence. The Court held that the police can submit a report of investigation before the magistrate without obtaining the sanction under Section 196 but the Court cannot take cognizance of such offense without obtaining the prior mandatory sanction under Section 196.

QUASHING AN FIR FOR WANT OF SECTION

The test for determining the applicability of Section 197 is whether the act or omission of the public officer was in direct connection to the discharge of his public duty.

When a Magistrate takes cognizance of an offense alleged to have been committed by a public servant without taking the mandatory sanction of the Government as provided under Section 197, then such cognizance will be illegal. Such a cognizance would be bad for want of sanction. The same was held by the Apex Court in the case of D. Devaraja vs. Owais Sabeer Hussain. The Court held that where the Magistrate takes cognizance of the offense without the Government's sanction, then such a cognizance would be illegal and the High Court must quash the FIR by exercising its powers under Section 482 of CrPC.

In several cases, the High Courts have quashed FIRs as they were lodged without obtaining the prior sanction of the government. In the case of Swaraj Thackeray v State of Jharkhand (2008), the FIR against the Maharashtra Nav Nirman Sena leader, Raj Thackeray, under sections 153A and 153B of Indian Penal Codewas quashed by the Jharkhand High Court on the grounds that the authorities had not obtained the requisite sanction for the prosecution.

Similarly, the Madhya Pradesh High Court, in the case of Sarfaraz Sheikh v The State of Madhya Pradesh rightly observed that "the requirement of prior sanction of the State Government is a basic jurisdictional fact before further action may be taken for taking cognisance of the offence."

ANALYSIS OF SECTION 482 OF CRPC

Section 482 of CrPC provides "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice"

In the case of Narinder Singh v. State of Punjab (2014) 6 SCC 466, the Court held that an FIR may be quashed by the High Court on the fulfilment of two essential conditions. Firstly, the quashing of FIR must be to prevent abuse of any of the court's process and secondly, the quashing of the FIR must be to secure the ends of the justice.

Thus, we see that the powers granted to the High Court under Section 482 of CrPC are based on the principles of justice, equity and good conscience. It is perhaps due to this reason only that the code does not specify or limits the grounds on the basis of which the High Court can exercise its inherent powers. The applicability of Section 482 has to be decided on the basis of the facts and circumstances of the case.

One of the most important cases regarding the applicability of Section 482 is the case of Parbatbhai Ahir v. State of Gujarat. In this case, the Supreme Court laid down the following principles governing Section 482,

• The Court firstly clarified that no new powers are vested on the High Court by virtue of Section 482. This section only preserves the already existing inherent powers of the High Court, that is, the power to prevent the abuse of law and to secure the ends of justice.
• Section 482 can be invoked to quash an FIR or criminal proceedings even where the offense is a non-compoundable offense.
• While exercising its inherent powers, the High Court must be satisfied that the ends of justice will be met by exercising these powers.
• Furthermore, the Court specified that no conclusive guidelines can be framed with respect to a situation when the FIR must be quashed due to settlement reached between the victim and accused. Such a situation has to be analyzed on a case-to-case basis and the decision to quash the FIR has to be taken depending on the facts and circumstances of the case.
• The Court clarified that the nature of offense must be taken into consideration while deciding on a plea to quash the proceedings on the ground of settlement reached between the victim and the offender. The Court held that offenses of grace nature such as murder, rape, etc cannot be quashed merely on the basis of the settlement as this offense are not private in nature but are against the society at large.
• Similarly, the Court held that certain criminal cases have a substantial element of civil flavour, and such cases may be quashed where a settlement is reached between the victim and offender. Examples of such offenses are disputes arising out of financial and commercial transactions, etc.
• Where the High Court believes that the probability of conviction is remote by virtue of the conviction reached and prejudice and oppression would be caused as a result of the continuation in proceedings, the High Court must exercise its inherent powers
• Lastly, the Court held that where a financial or economic offense is committed by the offender, and the High Court, after balancing the effect of the offense on the financial system, decides not to quash the proceedings, then in such an act, the High Court would be justified to hold that such an offense cannot be regarded as a private offense.

ABATEMENT OF CRIMINAL PROCEEDINGS

The Supreme Court has categorized the criminal proceedings into different categories on the basis of which they can be quashed. In the case of State of Haryana v. Bhajan Lal 1992 AIR 604, the court held that where no prima facie case is made out against the accused even after accepting the allegations of the FIR at their face value, the FIR must be quashed. Furthermore, if the allegations made in the FIR constitute a non-cognizable offense, then an investigation into the same can be permitted only when the order of the Magistrate to this effect is obtained under 155(2) of IPC. When the allegations made in the FIR are absurd or if the FIR clearly shows that it has been lodged with a mala fide intention and is filled with an ulterior motive, then the Court may quash the proceedings.

Similarly, in the case of R P Kapur v. State of Punjab 1960 AIR 862, the Apex Court held that when there is any legal bar to the contraction of investigation or where there is no evidence to prove the allegations made out in the FIR, the proceedings may be quashed.

CONCLUSION

There have been several instances where unscrupulous complaints have been filed against public servants with the malicious motive of hindering the discharge of public duty. Such complaints prevent the public officers from discharging their public duty and subject the officers to unnecessary harassment. The public suffers too and hence the legislature has drafted some special provisions to provide additional safeguards to the public servants. The Courts have also in numerous cases noted that these safeguards are indeed necessary.

However, Section 197 cannot be used to protect corrupt officers. The purpose of this Section is to promote good governance by protecting from vexatious complaints but if the same Section is used to accord protection to corrupt officers, then the very purpose of the Section would be defeated.

Thus, protection under Section 197 can only be provided to honest officials. The Supreme Court has also reiterated this essential condition from time to time and has denied the protection to those officials who were found to be acting in a mala fide intention. Often, this provision is used to delay the proceedings in corruption cases. The Section was never meant to protect the corrupt officials. The protection has been given in public interest and the same cannot be used by the officials who act against the interest of the public at large.