Article 14 of the Constitution Vs Section 197 of the Crpc:
N.K.Assumi
(Querist) 26 August 2008
This query is : Resolved
Section 197 of the Criminal Procedure Code is violative of Article 14 of the Constitution.As it give undue advantage to the class of persons specified in 197 Crpc over ordinary citizen of India.
arunprakaash.m.
(Expert) 26 August 2008
If there exists a reasonable calssification then there is no violation of art 14 of the constitution.
N.K.Assumi
(Querist) 26 August 2008
Ok? But the classification is not reasonable as the poor and the helpless person are not protected whereas 197 Crpc protect the powerful and the strong as against the helpless, so can we say that it is reasonable?
Murali Krishna
(Expert) 26 August 2008
I am afraid. It is not violation of Article 14 of COI.
Section 197 of CrPC is to provide protection to honest and diligent officers in performing their duties without fear of criminal cases against them in preformance of their duties.
Hence, I feel that the question of violation of equality does not arise.
N.K.Assumi
(Querist) 26 August 2008
whether 197 is there or not why should those clss of person should be afraid of performing their duties?
Murali Krishna
(Expert) 26 August 2008
I request you to go through the obejcts and reasons for inserting Sec 197 in the Cr.PC. There are so many unscrupulous elements which create fear in the minds of the public servants by way of filing criminal cases for petty things. Whether the public servant has to spend all his time in defending petty and frivoluos cases instead of public service. I am sure as an advocate, you know pretty well the vagaris of a criminal case. If such criminal cases are foisted against a public servant, which public servant come forward to do his duty. He needs State protection.
K.C.Suresh
(Expert) 27 August 2008
197 is to protect honest PS. To avoid vexatious prosecution this section is inserted. But the act complained must be in discharge of his official duty or purport to be in discharge of his official duty. There is no violatuion of Art.14.
The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v.
Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while emphasizing on the balance between protection to the
officers and the protection to the citizens observed as follows:- "It is necessary to protect the public
servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the
trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence."
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. The policy of the legislature is to afford adequate protection to public 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 they choose to exercise it, complete control of the prosecution. 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. 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. The question is 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. Before Section 197 can be invoked, it must be shown that the official concerned was
accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it.
The act must fall within the scope and range of the official duties of the public servant concerned. It is 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. 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. 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 his question is i
N.K.Assumi
(Querist) 27 August 2008
Thank you all of you for your tremendous contribution in this matter, which really exhibit you hard works. God bless you all and this Forum.
