The purpose of Section 197 of the Code of Criminal Procedure of 1973 is to
shield civil servants from baseless and malicious legal actions related to their
official duties. This section mandates the need for prior approval from the
appropriate authority before prosecuting specific civil servants.
Importance of Sanction
Safeguarding Public Servants:
Section 197 CrPC acts as a shield for public
servants who act in good faith while performing their official duties. It
ensures that they are not subjected to unnecessary legal harassment or
prosecution based on false or politically motivated complaints.
Promotion of effective administration:
By providing legal protection to civil
servants, Section 197 CrPC encourages them to discharge their duties
conscientiously and without fear of legal consequences. This is vital for the
government and administration to work effectively.
Balancing accountability and governance:
While holding civil servants
accountable is important, it's equally crucial to strike a balance between
accountability and letting them perform their duties without too much
Preventing Misuse of Legal Processes:
Without Section 197 CrPC, individuals or
entities with ulterior motives could easily misuse the legal system to target
public servants by filing baseless or politically motivated cases against them.
The requirement of prior sanction acts as a check against such misuse.
Upholding the Principle of Administrative Neutrality:
Public servants are
expected to carry out their duties impartially and without bias. Section 197 CrPC helps maintain this administrative neutrality by protecting them from undue
legal pressure or harassment that may compromise their ability to act
Is Sanction Required for Filing FIR?
For filing of a First Information Report (FIR) against a public servant, there's
no obligatory requirement to secure prior sanction, as mandated by Section 197
of the Code of Criminal Procedure, 1973.
When Sanction Not Required?
Pursuant to the Criminal Law Amendment Act of 2018, it's important to note that
no prior sanction is necessary for a public servant facing allegations under the
specified sections of the Indian Penal Code, which include sections 166A, 166B,
354, 354A, 354B, 354C, 354D, 370, 375, 376, 376A, 376AB, 376C, 376D, 376DA,
376DB, or 509.
When Sanction is Required?
Section 197 (1) of the Code of Criminal Procedure, 1973 applies only to such
public servants as are not removable from office save or with the sanction of
the State Government or of the Central Government. In other words, in order that
the protection under the section may apply, the public servant must be removable
from office not by any other authority but with the sanction of the State
Government or the Central Government.
When obtaining sanction is a necessary prerequisite for initiating legal
proceedings, it must be secured before the charge sheet is presented to the
magistrate. If, in such a case, the sanction is obtained after the magistrate
has already taken cognizance of the offense, it becomes ineffective, and the
prosecution will likely fail due to the absence of the required sanction.
However, if the law simply states that no court can proceed with the trial
without a valid sanction (as seen in Section 7 of the Explosive Substances Act,
1908), obtaining the sanction even after the case has been committed but before
the trial begins in the Court of Sessions is considered acceptable and in
compliance with the law.
Before taking cognizance by the court of an alleged offence involving a public
servant, it's imperative to obtain the requisite sanction, especially if the
purported misconduct occurred in the course of his official duties. However, if
the alleged act bears no relevance to his official responsibilities, obtaining
such sanction is unnecessary.
Who Will Give Sanction?
When needed sanction should always be given by the authorized person, expressed
in the name of the President or the Governor and must be duly authenticated in
accordance with the rules framed under Articles 77 or 166 of the Constitution of
India, as the case may be.
As regards separation of offences requiring sanction from those not requiring
sanction in one and the same case and in regard to the same individual the law
seems to have crystallized in this point in Baijnath v. State of M.P.
In this case, one of the accused faced charges under Section 409 (criminal
breach of trust) and Section 477A IPC (falsification of accounts) without the
necessary permission under Section 197 CrPC. Although these offenses seemed to
occur while the accused held a position subject to Section 197 CrPC, the Supreme
Court reviewed prior cases and concluded that no sanction was required for
prosecuting the accused under Section 409 IPC.
This decision was based on the
fact that the act of criminal misappropriation did not occur while the appellant
was acting in his official capacity, and it had no direct link to his duties as
a public servant. The official position merely provided an opportunity for the
offense of falsifying accounts.
However, the Court determined that the offense under Section 477A IPC fell
within the scope of official duties (specifically, maintaining accounts).
Therefore, the absence of Section 197 CrPC sanction was detrimental to the
prosecution in this regard. The conviction under Section 477 IPC was overturned
while the conviction under Section 409 IPC was upheld, as a result.
If a civil servant is acting lawfully, he cannot be charged with a criminal
offence such as breach of trust under Section 409 IPC, as confirmed by this
decision. This is in accordance with Section 197 CrPC. It also clarifies that
cheating and bribery cannot be considered crimes committed by public officials
in the performance of their official duties.
Similarly, it has been held that
cheating and bribery cannot inherently be held to be committed by public
officials when they act or purport to act in the discharge of their official
duties. By falsely certifying the fake bills of a contractor a public servant
did not commit the offence of abetment of cheating in discharge of his official
duty and as such no sanction under Section 197 CrPC was required to prosecute
Similarly, abusing and kicking a subordinate, abusing an advocate as a 'rowdy',
big gambler and a mischievous element by a magistrate even in a report to the
District Judge or abusing a complainant by a police officer for the mere fault
of the former in lodging a complaint could not be regarded as acts done in the
discharge of the official duties of a public servant and as such no sanction
would be necessary to prosecute a public servant indulging in such acts.
Where, however, a Deputy Superintendent of Police used force against an accused
to effect his arrest, it was held that no case of assault could be lodged
against him without sanction under Section 197 CrPC, as his act was reasonably
connected with his duty.
Competency of law:
Secretary refused sanction to prosecute a Government Pleader
� In the present case the Government decided to refuse sanction and the fact was
communicated by the Law Secretary. As sanction to prosecute under Section 197 CrPC is to be granted by the appointing authority, the same authority can refuse
sanction also. The Law Secretary of the Government is thus competent to refuse
sanction to prosecute a Government Pleader or an ex-Government Pleader. Raman Kutty Menon v. State of Kerala,
1986 Cri LJ 758 at p. 762
Sanction by Deputy Secretary:
Validity of. The Secretary only has the power of
according sanction. However, once the orders of sanction were given by the
Minister or the Secretary such order could always be issued by the Deputy
Secretary by order and in the name of the Governor. However, the statement did
not find support from the Allocation of Business rules and the panel lawyer had
not been able to show that by any special or general order the powers to accord
sanction for prosecution were given to the Deputy Secretary. In the aforesaid
circumstances the sanction for prosecution was not proved to have been given by
the person competent to accord sanction. Rajendra Prasad v. State of M.P.
1993 Cri LJ 750 at p. 753 (MP)
Necessity of examination of sanctioning authority:
The detailed investigation
report and the connected records were sent to the Collector for his perusal. In
his order, the Collector has affirmed that, following a thorough examination of
the evidence and the circumstances pertaining to the allegations, he is
convinced that legal prosecution of the appellant is warranted.
There is no need to suspect the correctness of the statement of the Collector
that he studied the records and applied his mind before according the sanction
for prosecution though he was not examined. Raja Singh v. State,
1995 Cri LJ 955
at p. 959 (Mad)
Sanction of Central Government:
It was not disputed that in case a finding has
to be given that conspiracy was made initially at Singapore, then provisions of
Section 188 of CrPC would have directly come into play. Section 188 of the CrPC
lays down that when an offence is committed outside India by a citizen of India,
he may be dealt with in respect of such offence as if it had been committed at
any place within India, provided that no such offence shall be enquired into or
tried in India except with the previous sanction of the Central Government.
Vinod Kumar Jain v. State through C.B.I.
1991 Cri LJ 669 at pp. 671, 672: (1900)
42 DLT 186: (1990) DRJ 121
Sanction and opportunity of hearing:
The conclusion of the learned judge that
the opportunity of hearing must be granted and the non-grant of the same would
vitiate the order of sanction is clearly contrary to the following observation
of this Court in P.P. Sharma's case.
The assertion made by the learned single judge that the principles of natural
justice were violated due to the absence of an opportunity before the case's
registration is clearly unfounded and contradictory. State of Maharashtra and
others v. Ishwar Piraji Kalpatri and others
, 1996 Cri LJ 1127 at p. 1131 (SC)
If there is any lacuna in the sanction order, then entire prosecution vitiates:
The sanctioning authority should not only apply its mind to the facts of the
case but also give its reasons for according sanction. The sanction order must
contain the said material so as to be in accordance with Section 20 of the
Prevention of Food Adulteration Act, 1954.
If there is any deficiency in the
sanction order, it renders the entire prosecution invalid, and the accused is
entitled to its advantages. In the present case also the sanction order was not
as per proper sanction order. Therefore, the conviction and sentence imposed by
the appellate Court were set aside. Adda Kasivisweswara Rao v. Sate of A.P.
1991 Cri LJ 227 at P. 229
If the sanction order recites that all the materials required for sanction are
placed before it such recital should be deemed to be correct as it was a matter
of regular official act. 1979 Cr LJ 1265
Where a sanction for the prosecution has to be accorded by the President, Deputy
Secretary can authenticate the order as the one made by the President. AIR 1967
Securing sanction is vital to shield public servants who have acted in good
faith from unjust harassment arising from complaints. Without this safeguard,
public servants would operate under constant fear and external pressures,
hindering their ability to fulfill their duties. Section 197 of the CrPC is
pivotal in enabling public servants to perform their official roles without the
threat of unfounded legal actions, striking a balance between accountability and
safeguarding those who act in good faith, thereby supporting efficient
governance and administration.
- Andhra Pradesh Police Academy, First Course in Investigation
- P. Venkatesh, Police Diaries, Statements, Reports and Investigations, Premier Publishing Company, Allahabad
- R. Deb, Principles of Criminology, Criminal Law and Investigation, S.C. Sarkar & Sons, Calcutta
Written By: Md. Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565