Can I make sworn statement while sanction to prosecute is pe
P RaviShankar-cell-8939332195
(Querist) 10 October 2016
This query is : Resolved
My pvt complaint was made to magistrate against 3 persons and includes 5 public servants as coaccused. I've applied to state government under section 197 CR.p.c for sanction against the public servants. While so can I make sworn statement before magistrate against the 3 persons while sanction is pending against public servants. Will Magistrate issue process to the 3 persons without issuing process to public servants. Please help
rajagopal.s
(Expert) 11 October 2016
Hi
You can make a sworn statement before the magistrate.
No issues on that as whether sanction necessary or not is decided only at the stage when sanction is mandatory at some part of proceeding and not otherwise.
Magistrate is bound to issue summons once he has taken cognizance of the case.
Please refer to supreme court judgment in Parkash Singh Badal v. State of Punjab and Ors. Para 20 and 38 reproduced below:
20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.
38. The question relating to the need of sanction Under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.
P. Venu
(Expert) 11 October 2016
It is my considered opinion that, in a private complaint except that under Section 156(3), the sanction is necessary for proceeding against the public servant, if the alleged offences relate to the discharge of public duties entrusted with them.
Rajendra K Goyal
(Expert) 11 October 2016
You said:
While so can I make sworn statement before magistrate against the 3 persons while sanction is pending against public servants. Will Magistrate issue process to the 3 persons without issuing process to public servants.
reply:
Yes you can, rest depend on merits.
