S.197 CrPC Applies Only To Acts In Discharge Of Public Servant's Official Duties; Fabrication Of Documents Not Part Of Official Duty: Supreme Court


Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Supreme Court on Wednesday (January 17), while deciding a criminal appeal, held that the prior sanction for prosecution as per Section 197 of the Code of Criminal Procedure is not required to prosecute a public servant for the act of creating fake documents as the alleged acts do not form a part of his official duty.

In this case, the High Court had quashed the criminal proceedings against the public servant for the want of prior sanction under Section 197 CrPC.

Reversing the High Court judgment, the Bench of Justices Abhay S. Oka and Ujjal Bhuyan, allowed the criminal appeal filed by the complainant-appellant against the quashing of the criminal proceedings by noting that the criminal proceedings cannot be continued against the public in absence of a prior sanction to prosecute him.

“Section 197 Cr.PC does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of official duties.”, the Supreme Court observed.

Briefly put, it was alleged by the complainant-appellant that the accused-public servant was involved in fabricating official documents by misusing his official position as a Village Accountant.

Issue Discussed

Whether sanction is required to prosecute accused-public servant who faces accusation amongst others of creating fake documents by misusing his official position as a Village Accountant?

Observations by the Supreme Court

Before answering the issue, the court explained the scheme of Section 197 (1) of Cr.P.C.

Thereafter, the Court placed reliance on Para 5 of Shambhoo Nath Misra Vs State of U.P. judgment, which held that fabrication of records and misappropriation of funds by a public servant cannot form a part of an official duty. Relevant excerpt of Shamboo Nath Mishra is produced below for convenience:

The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.”

Further, the court has also relied on State of Orissa v. Ganesh Chandra Jew Judgment which held that “Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty.”

Based on the precedents, the Court took a view that manufacturing of such documents or fabrication of records cannot be a part of the official duty of a public servant.

“That being the position, we are of the unhesitant view that the High Court had erred in quashing the complaint as well as the chargesheet in its entirety. Consequently, we set aside the order of the High Court dated 25.11.2020 passed in Criminal Petition No. 4998/2020. We make it clear that observations made in this judgment are only for the purpose of deciding the present challenge and should not be construed as our opinion on merit. That apart, all contentions are kept open.”, the court observed while allowing the criminal appeal of the complainant.