Prosecute police
Querist :
Anonymous
(Querist) 21 July 2011
This query is : Resolved
Is sanction from government required to prosecute police officals when police have created false records and placed in judical proceedings.
if no sanction is required,pls let me know if there are any cititions/judgements for same
THANKACHAN V P
(Expert) 21 July 2011
I respectfully disagree with my learned friends forging documents are not part of their official duties.
2008 (3) KLT SN 79 (C.No. 96) SC
Hon'ble Mr. Justice Dr. Arijit Pasayat & Hon'ble Mr. Justice P. Sathasivam
Anjani Kumar v. State of Bihar
Crl. A. No.413 of 2000
24.4.2008
Criminal P.C. 1973, S.197 - Official duty meaning of - Official duty implies that act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature.
Dr. Arijit Pasayat, J.
Held: Use of the expression, 'official duty' implies that the act or omission must have been done by the public officer in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature.
2005 (4) KLT SN 88 (C.No.120) SC
Hon'ble Mrs. Justice Ruma Pal, Hon'ble Mr.Justice Arijit Pasayat &
Hon'ble Mr.Justice C.K.Thakkar
Center for P.I.L. v. Union of India
I.A.No.1 in W. P. No.387 of 2005
6.10.2005
Criminal P.C. 1973, S.197 -- Parameters for application of S.197 -- 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.
Arijit Pasayat, J.
The protection given under S.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
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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 S.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 this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of S.197 does not get immediately attracted on institution of the complaint case. Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 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 official to which applicability of S.197 of the Code cannot be disputed.
1996 (1) KLT 250 (SC); 2003 AIR SCW 6687;
AIR 2004 SC 2179 & 2004 (3) KLT 505 (SC) = 2004 SC 4174 Referred to
2005 (3) KLT SN 28 (C.No.32) SC
Hon'ble Mr. Justice Arijit Pasayat & Hon'ble Mr. Justice S.H. Kapadia
Kalimuthu v. State of Tamil Nadu
C.A. Nos.469, 470 & 471 of 2005
30.3.2005
Criminal P.C. 1973, S.197 -- "Official duty" meaning of -- Official duty implies that the act or omission must have been done by the public servant in course of duty which further must have been official in nature.
Arijit Pasayat, J.
Use of expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his
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duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefore then the bar under S. 197 of the Code is not attracted.
AIR 1956 SC 44; AIR 1988 SC 257; AIR 1967 SC 776 &
(1979) 4 SCC 177 Referred to
THANKACHAN V P
(Expert) 21 July 2011
2003 (2) KLT SN 57 (C.No. 76) Guj.
Hon'ble Mr.Justice D.H. Waghela
Khandwala v. State of Gujarat
Crl. R.P. No. 568 of 2001
29.7.2002
Criminal P.C. 1973, S.197 - Sanction for prosecution of public servant for offence committed "while acting or purporting to act in the discharge of his official duty" - An act constituting an offence will require sanction if "it is directly and reasonably connected with the official duty of the accused" - It is the quality of the act that is important.
The guiding principles that emerge from the survey of the legal dicta with regard to applicability of the provisions of S.197 of Cr.P.C. can be summarised as under:
(a) All the material brought on record for the prosecution as also other material placed or brought on record for the purpose may be considered by the Court in forming the opinion as to whether the provisions of S.197 of the Cr.P.C. were applicable in the facts of the case;
(b) The facts coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage;
(c) While it cannot be a part of official duty to commit an offence, every act constituting an offence committed in the course of duty cannot enjoy the protection of S.197 of the Cr.P.C. The right approach lies between the two extremes. An act constituting an offence will require sanction if it is directly and reasonably connected with the official duty of the accused.
(d) It is the "act" and the quality of the act that is important and if it falls within the scope and range of his official duties, the protection contemplated by S.197 will be attracted;
(e) There must be a reasonable connection between the act and the discharge of official duty; the alleged act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty or in purported discharge of his duty; and
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(f) In case of a gross violation of fundamental right to life, it can hardly be claimed that the alleged act amounting to an offence was committed while acting or purporting to act in the discharge of official duty.
1994 SCC (Crl.) 1311; AIR 1964 SC 33; AIR 2000 SC 2952;
1997 (2) GLR 1631 (SC); 1994 SC (Crl.) 899; 1995 Crl. L.J. 2620;
1991 (2) GLR 876; AIR (26) 1939 FC 43; AIR 1979 SC 1814;
1998 (1) SCC 205; AIR 1999 SC 2245 & 2001 AIR SCW 2125 Referred to
Ajay Bansal
(Expert) 25 July 2011
See A.I.R. Manuals etc.
