Sanction to Prosecute Public Servants: Change in Regime — A Balancing Act

Foreword

The most universally accepted and basic principle of criminal law is that an accused is innocent until proven guilty. In India, this is evident from various protections afforded to an accused at different stages of a criminal proceeding under the Code of Criminal Procedure, 1973¹ (the Code). For instance, while dealing with a private complaint, Section 190² of the Code requires a Magistrate to apply his judicial mind before taking cognizance of an offence. Similarly, while issuing summons to an accused under Section 204³ of the Code, application of mind is required to ensure that no accused, against whom specific overt acts are not alleged or against whom the material-on-record does not disclose a prima facie case, is summoned and subjected to the rigours of trial. Further, a Magistrate is required to mandatorily conduct an enquiry as envisaged under Section 202⁴ of the Code in the event an accused resides beyond the jurisdiction of such Magistrate so to ensure that criminal proceedings are not used as a tool to harass innocent parties who are not residing within the jurisdiction of such Magistrate.

Insofar as prosecution of a public servant is concerned, the Code provides for an additional layer of protection under Section 197⁵ of the Code, which mandates that, without prior sanction, a Magistrate cannot take cognizance of an offence which is alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty.

With the Nagarik Suraksha Sanhita, 2023⁶ (BNSS), now in force, this article aims to shed light on the law dealing with the requirement of prior sanction under Section 197 of the Code, the shortcomings thereof and how those shortcomings are sought to be addressed by BNSS.

Sanction: Object and scope of Section 197 of the Code

The object of Section 197 of the Code is to safeguard a public servant against vexatious criminal proceedings for offences alleged to have been committed by such public servant while acting or purporting to act in discharge of his official duty.

The requirement of prior sanction to prosecute a public servant was first introduced under Section 197 of the Code of Criminal Procedure, 1898 (1898 Code)⁷.

The constitutional validity of Section 197 of the 1898 Code came to be questioned before the Constitutional Bench of Supreme Court in Matajog Dobey v. H.C. Bhari⁸ on the grounds of being discriminatory and violative of Article 14⁹ of the Constitution. While upholding the constitutional validity of the said provision, the Supreme Court held as follows—

15. … Article 14 does not render Section 197 of the Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.¹⁰

The said observations hold good when applied to Section 197 of the Code as well.

Section 197 of the Code has certain limitations which are forthcoming from the provision itself. Protection under Section 197 of the Code is available only when the alleged act committed by the public servant is reasonably connected with the discharge of his duty and is not merely a cloak for doing an objectionable act. For instance, negligence on part of a government medical officer while treating a patient, which may constitute an offence, will require prior sanction. But sanction is not required if such officer commits theft of property belonging to the patient.

In Gill v. R.¹¹, while dealing with the issue of sanction under Section 197 of the 1898 Code, the Privy Council had laid down the following test to determine whether a public servant has acted or purported to act in discharge of his official duty—

… The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held. Without further examination of the authorities Their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited, think it sufficient to say that in their opinion no sanction under S. 197 of the Code of Criminal Procedure was needed.

The Supreme Court, in Matajog Dobey case¹², relied upon Gill case¹³ and laid down the following test—

19. The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the 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 performance of his duty.¹⁴

In B. Saha v. M.S. Kochar¹⁵, the Supreme Court while discussing the phrase “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” appearing in Section 197(1) of the 1898 Code, has observed that construing the said phrase narrowly would render the provision sterile and construing it widely would encompass every act committed under the garb of discharge of official duty. The Supreme Court concluded by observing that: 18. … sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.

The scope of Section 197 of the Code has evolved significantly over time. Through a series of judgments starting from K. Satwant Singh v. State of Punjab¹⁶, Harihar Prasad v. State of Bihar¹⁷, Parkash Singh Badal v. State of Punjab¹⁸ and Chandan Kumar Basu v. State of Bihar¹⁹, the Supreme Court has held that, depending on the facts and circumstances of the case and in addition to the exception provided in the Explanation to Section 197(1) of the Code, sanction may not be required in relation to offences punishable under Sections 406, 409, 420, 467, 468 and 471 IPC²⁰. These observations were made in cases where public servants were accused of having misused their offices for personal gains and the acts alleged had no correlation with the duties to be discharged by the public servant.

Stage at which the issue of sanction is to be considered

At first glance, one may contend that the issue of sanction under Section 197 of the Code has to be considered at the time of taking cognizance based on the allegations made in the complaint. However, recognising the fact that each case turns on its own facts, courts have evolved a flexible approach to the stage at which the question of sanction may be considered.

In Matajog Dobey case²¹, while answering the question whether the issue of sanction is to be considered as soon as the complaint is lodged and on the basis of allegations made therein, the Supreme Court observed that a complaint may not disclose all the facts relevant to decide if the alleged act was committed by the accused while discharging his official duty and such facts may come to light only after a police or judicial enquiry or during the course of trial. It was held that the issue of sanction may have to be answered from stage to stage. This proposition remains unchanged.

However, in cases where the allegations reveal an essential connection between the alleged act and the official character of the person committing the alleged act, a Magistrate cannot take cognizance in the absence of prior sanction. In D.T. Virupakshappa v. C. Subash²², while dealing with the allegations that the accused had allegedly assaulted the complainant to extract information during an ongoing investigation, the Supreme Court quashed the complaint at the inception for want of prior sanction on the premise that the allegations prima facie disclosed that the alleged act was relatable to the discharge of official duty by the accused.

Therefore, the approach taken while considering the requirement of sanction has been quite flexible. While ideally the question of sanction should be looked into at the stage of taking cognizance, it is also permissible for the Magistrate to assess the requirement of sanction during or after conclusion of trial on the basis of materials-on-record. If the material-on-record does disclose the requirement of prior sanction, the Magistrate can either stay further proceedings to enable the complainant to obtain sanction from the competent authority or discharge the accused for want of sanction.

In cases where proceedings against the accused are quashed or the accused is discharged only on the ground of sanction, it is open to the complainant to approach the competent authority and seek such prior sanction. If the sanction is granted, then the complainant is at liberty to file a fresh complaint. It has often been noted that the issue of sanction has caused significant delays in trials before criminal courts. Where the issue of sanction is raised either by the public servant (accused) concerned or the Magistrate himself is of the opinion that prior sanction was required in the facts and circumstances of the case, the proceedings are either stayed to await such sanction or the accused is discharged on that basis with liberty being reserved to the complainant to approach the competent authority for sanction and commence proceedings afresh. Apart from resulting in loss of valuable judicial time, such delays in criminal proceedings are also likely to dilute the quality of evidence with witnesses’ memories fading over a period of time. Additionally, the right to a fair and speedy trial of the accused is also adversely affected in such cases.

On one hand, as per judgments of the Supreme Court, the requirement of sanction should not be considered at the inception and it should be reserved for a later stage so as to protect the interests of the accused; and on the other hand, non-consideration of sanction at the inception may result in grave injustice to the victim and the accused. There are no provisions in the Code to address the above issue and this is where the BNSS comes into play.

Prosecution of public servants under BNSS

Section 218²³ of the BNSS is the equivalent provision to Section 197 of the Code. While the language of Section 218 of the BNSS is largely the same as Section 197 of the Code, the first proviso to Section 218(1) of the BNSS directs the competent authority to consider a sanction request within 120 days from the date of receipt of such request, failing which, sanction would be deemed to have been accorded. The said proviso is meant to protect the interests of prosecution and accused by ensuring that the request for sanction is considered in a time-bound manner.

Section 223²⁴ of the BNSS (equivalent to Section 200²⁵ of the Code), which provides for procedure to be followed in proceedings instituted on a private complaint, has introduced certain safeguards for the accused, including public servants. First proviso to Section 223(1) of the Code prohibits a Magistrate from taking cognizance without giving the accused an opportunity of hearing. Further, Section 223(2) prohibits a Magistrate from taking cognizance of an offence alleged to be committed by a public servant unless — (a) such public servant is given an opportunity to explain the situation which led to the alleged incident; and (b) a report containing facts and circumstances is obtained from such public servant’s superior officer.

The legislature, in enacting the BNSS, has attempted to remove certain hurdles which often come in the way of administration of justice and which often cause delays, even at the stage of cognizance and summons of a criminal complaint. It is not uncommon for an accused to challenge an order taking cognizance and/or issuing summons, either in a revision petition or by invoking Section 482²⁶ of the Code, on the grounds of non-application of mind. This is sought to be overcome by providing an opportunity of hearing to an accused at pre-cognizance stage under Section 223 of the Code.

Further, from the language employed in Section 197 of the 1898 Code, which is retained in Section 197 of the Code and Section 218 of the BNSS, it appears that the legislature always intended for the sanction requirement to be considered at the time of taking cognizance. Since the 1898 Code and the Code lacked necessary provisions to complement Section 197, the judiciary had to intervene from time-to-time to fill those gaps. However, Section 223 of the BNSS has plugged these gaps by affording an opportunity of hearing to a public servant at pre-cognizance stage thereby equipping the Magistrate to consider the issue of sanction at pre-cognizance stage rather than reserving it for a later stage, which may lead to multiplicity of proceedings.

Lastly, the said changes under Section 223 of the BNSS will result in nipping frivolous and vexatious complaints at the bud and consequently, reduce the burden of judiciary. For instance, frivolous complaints which are filed to settle civil/employment/marital disputes will now be dealt with more caution and circumspection as opposed to mechanically taking cognizance based on the allegations contained in the complaint irrespective of the nature of the dispute and attending circumstances thereto.

Conclusion

A right to fair trail guaranteed under Article 21²⁷ of the Constitution is a right equally available to the victim and the accused. The protection of sanction to a public servant is an important facet of the said right. The above provisions of BNSS strike the right balance between the competing rights of the parties by fixing a timeline to consider a sanction request on side and by affording an opportunity of hearing to the public servant at pre-cognizance stage on the other side. Further, an effective implementation of the said provisions may result in expeditious disposal of complaints which require sanction.

In the larger scheme of things, while the above provisions of BNSS address the existing issues on sanction, they also leave room for debate with respect to right of hearing afforded to an accused at pre-cognizance stage. With the enforcement of BNSS, some of the questions that may arise for consideration are—

(a) Since the accused will participate in the proceedings at pre-cognizance stage, is he entitled to cross-examine the witnesses at that stage?

(b) How much reliance can be placed on the report furnished under Section 223(2)(b) of the BNSS since the said provision does not provide for examination of the author of such report?

(c) What is the relevance of an enquiry under Section 225²⁸ of the BNSS (Section 202²⁹ of the Code) considering the fact that the accused is being heard at pre-cognizance stage?

(d) Whether right of hearing at pre-cognizance stage is available to an accused being tried for the offence punishable under Section 138³⁰ of the NI Act?

There will be more questions as time passes. It is to be seen how these issues will be dealt with by the legislature and the judiciary.

*      *     *     *