(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.- For the purposes of this section,-
(a) Error includes competency of the authority to grant sanction;
(b) A sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority of with the sanction of a specified person or any requirement of a similar nature.
a) Applicability of Section 197 of Cr.P.C:
In order to apply Section 197 Cr.P.C. the following ingredients must exist:
(a) the Accused must be a Public Servant;
(b) the Public Servant is not removable from his office by or with the sanction of the Government;
(c) the act Complained of must be an act in discharge of his official duty.
It is to be pointed out that only when the above ingredients are satisfied, the Public Servant, will get the protection under Section 197 of Cr.P.C.
Public Servant Removal by Government - Dr.S.Sourubarani & another v. C.Selvi - 2005 (1) L.W. (Crl.) 139 – the Hon’ble Madras High Court held in Para No.8 –
“The Complaint or the Petition ....., the Petitioners are Public Servants as contemplated U/s.197 of Code of Criminal Procedure, 1973 and therefore, as contemplated U/s.197(1)(b) of Cr.P.C, the Court ought not to have taken congizance of the offence, except with the previous sanction by the State Government, who alone is competent to remove these Petitioners from the Office. Since the Petitioner are working as Doctors under Government Service, there may not be any dispute to bring them within the meaning of Public Servants. Admittedly, before filing the Petition or after the filing of the Petition, no Sanction of the Government was obtained, in order to prosecute the Public Servants, since they were performing their duty as Public Servants.”
b) Object of Section 197 of Cr.P.C:
The object of section 197 Cr.P.C. is to give protection from malicious prosecutions. It is also apposite to suitably mention hereunder the judgments of Hon’ble Supreme Court to know the object of Section 197 Cr.P.C:
Inspector of Police Vs Battena Patla Venkata Ratnam - AIR 2015 SC 2403
“The object of section 197 of the code is to protect the Public servants from malicious or vexatious prosecutions but it can not be treated as shield to protect corrupt officials.”
State Of U.P Vs Paras Nath - (2009) 6 SCC 372
“It is not the part of the duty of a public servant, while discharging his official duty to enter into a criminal conspiracy or to indulge in criminal misconduct..”
c) Whether sanction under Section 197 of Cr.P.C. gives total protection to all acts of the Public Servant?
No, Section 197 of Cr.P.C. does not blindly gives protection to all the omissions and commissions of public servant, but when a Public Servant is acting in discharge of his official duty and there should not be any misconduct attached with his discharge of his official duty, then protection under section 197 of Cr.P.C. will come into play. The judgement made in State of U.P Vs Paras Nath cited supra has decided the point in detail.
It would be a worthy one to understand the meaning of the term “In discharge of official duty” in the words of Hon’ble Supreme Court in
PP.Unnikrishnan Vs Pthiyotil Ahkulth - AIR 2000 SC 2952
“No protection has been granted to public servant if the act complained is not in connection with the discharge of his duty”
d) Whether sanction prescribed under departmental rule is similar to sanction under section 197 CrP.C?
No, the sanction prescribed under section 197 is different from the sanction prescribed under departmental rules and the same will not bind the criminal courts as decided in the following case State of Punjab Vs Rajkumar AIR 1988 SC 805
e) Public Servant – Meaning Of:
The term “PUBLIC SERVANT” as used in section 197 of Cr.P.C. and in section 19 of Prevention of Corruption Act has been defined under section 21 of IPC.
Prakash Singh Badal Vs State of Punjab - 2007 (1) SCC 1
“Mere error, omission or irregularity in sanction is not considered fatal unless it has resulted in failure of justice .....”
State of Karnataka Vs Ameer John – 2008 Crl.L.J. 347 SC
“Ordinarily the sanction authority is the best person to judge as to whether public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. For the above mentioned, indisputably application of mind on the part of sanctioning authority is imperative. The order granting sanction must be demonstrative of the facts that there had been proper application of mind on the part of the sanctioning authority”
R.S.Nayak Vs A.R.Antulay – AIR 1984 SC 684 - It was held that
“Grant of sanction is not an idle formality but a solemn and sacrosanct act, which removes the umbrella of protection of Government Servants against frivolous prosecution and that requirement must be strictly complied with before any prosecution could be launched against Public Servant”
It is also to be noted here that a person who is NOT A PUBLIC SERVANT but who had actively took part in the offence as stipulated in Section 3(b) is liable to be tried under the P.C. Act, 1998 and in this regard the Hon’ble Supreme Court has held in Para 9 and 10 of P.Nallammal & another Vs State – 1999 (6) SCC 559 as follows:
9. The placement of the monosyllable “only” in the sub-section is such that the very object of the sub-section can be discerned as to emphasise the exclusivity of the jurisdiction of the Special Judges to try all offences enveloped in Section 3(1). That can be further noticed while reading that sub-section. It is as follows:
“3. (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely—
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).”
10. Thus, clause (b) of the sub-section encompasses the offences committed in conspiracy with others or by abetment of “any of the offences” punishable under the PC Act. If such conspiracy or abetment of “any of the offences” punishable under the PC Act can be tried “only” by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter.
f) Competency of Officer to Accord Sanction:-
In CBI Vs. V.K.Sehgal – (1999) 8 SCC 501, Hon’ble Supreme Court in Para 10 to 12, held as follows:
10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court. In Kalpnath Rai v. State (through CBI) [(1997) 8 SCC 732 : 1998 SCC (Cri) 134] this Court has observed in para 29 thus:
“29. Sub-section (2) of Section 465 of the Code is not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that ‘the court shall have regard to the fact’ that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean that if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial.”
11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.
12. That apart, there is now another trammel on the appellate powers. It must be remembered that the need for a valid sanction for prosecution was incorporated in Section 6 of the Prevention of Corruption Act, 1947 (it will hereinafter be referred to as “the 1947 Act”). The present prosecution was launched under the said Act, but by the time the case reached final stage in the trial court, the 1947 Act was repealed by the Prevention of Corruption Act, 1988 (hereinafter referred to as “the 1988 Act”) which came into force on 9-9-1988. The prosecution and the trial thereafter continued by virtue of sub-section (2) of Section 30 of the 1988 Act. That section reads thus:
“30. Repeal and saving.—(1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.”
g) Whether Delay in Granting Sanction is fatal?
Ramanahd Choudhary Vs State of Bihar – 1994 Crl.L.J 1221
“Delay of 13 years in granting sanction - Investigation was quashed by Apex Court”
h) Whether Sanction is necessary to file Final Report U/s.173(2) Cr.P.C.?
CBI Vs Rajkumar Jain AIR 1998 SC 2985
“.....it must therefore be said that both the Special Judge and the High Court were patently wrong in observing that the CBI was required to obtain sanction from the Prosecuting Authority before approaching the Court for accepting the Final Report U/s.173(2) Cr.P.C. .....”
i) Whether order refusing to accord sanction be reviewed?
No doubt the Sanctioning Authority can review his earlier order rejecting the request to grant sanction provided that the Investigation Officer has to place the new materials collected by him after the rejection of sanction by the authority concerned. However in a case where fresh materials have been by the Investigating Agency subsequent to the earlier order and placed before the sanctioning authority and purely on that basis the matter can be reconsider and there is, and there is no impediment to adopt such a course of action Hence there is no legal bar to consider the review of his earlier decision of rejecting the request to grant sanction on the basis of new materials.
This view reiterated in the following judgement.
State of Himachal Pradesh Vs. Nishant Sareen – 2011 Cr.L.J. 404
j) Whether sanction is necessary at the time of filing of application U/s.156(3) of Cr.P.C. and at the time of filing of Application U/s.200 Cr.P.C.?
AIR 2005 SC 4413 = 2005 (8) SCC 202, Centre for Public Interest Litigation Vs. UOI.
“The concept of Section 197 Cr.P.C. does not get immediately attracted on the institution of the complaint case”
Anil Kumar Vs. M.K.Aiyappa – 2013 (10) SCC 705 - In the above case, it was held that:
“Sanction is necessary at the stage of forwarding an application U/s.156(3) Cr.P.C. and also to proceed U/s.200 Cr.P.C. During March 2018, the Hon’ble Supreme Court in Manju Surana Vs. Sunil Arora & others, referred the issue to the Larger Bench”
k) Difference between sanction required U/s.197 Cr.P.C. and Sanction U/s.P.C.R. Act.
In Dr.Subramanian Swamy Vs Dr.Manmohan Singh, AIR 2012 SC 1185 – Hon’ble Supreme Court has held that - In a case relating to sanction to prosecute a public servant under the Prevention of Corruption Act, 1988, the Apex Court held that”
“the question of sanction will come into play at the time of taking cognizance and not before it. The scheme of Section 197 Cr.P.C. is difference from Section 19 of Prevention of Corruption Act, 1988 and the both the section operating in difference fields”
l) Sanction – Competent Authority:
It is to be noted that in order to launch the prosecution as against the public servant, a valid sanction is required U/s.197 Cr.P.C. and the same has to be accorded by the Competent Person after going through the materials placed before him. AIR 2014 SC 827 – CBI Vs Ashok Kumar Agarwal.
“Sanction accorded by the Authority not competent to give sanction is not the sanction in the eye of law
iii) CONCLUSIONS:
As discussed supra in so far as the criminal prosecution against the Public Servant is concerned, there must be a valid sanction, if the act of the Public Servant is in discharge of the public duty and in order to have better prosecution under the provisions of Prevention of Corruption Act also prior sanction is necessary. Hence, prosecuting agency has to take every care and they must be vigilant in prosecuting Public Servant.