Judges and public servants should discharge their duties ethically and without any biases. Due to the rise in corruption, there is a provision in the Code of Criminal Procedure under section 197 for the prosecution of judges and public servants.
In this CrPC note, let us analyse the law and focus on the provisions available in the Indian laws to prosecute judges and public servants while holding their office.
Purpose of Protection to Judges and Public Servants
The government provides such facilities to help judges and public servants discharge their duties without any external pressure, bias, or unethical procedures.
Note: The definition of a “public servant” in section 21 of IPC does not apply as per section 2(c) of the Prevention of Corruption Act, 1988.
Prosecution of Judges and Public Servants – Section 197 CrPC
Section 197 of the Code of Criminal Procedure specifies that no court is competent to take cases against public servants and judges in the proceedings against crimes committed except with prior approval from a competent authority.
The offence committed must apply to a past or present judge, magistrate or public official who is not allowed to remove himself from office under government penalties when he fulfils his official duties. It applies to staff employed at the time of the commission of the offences by the central government and the state government.
In addition, no court in India has taken cognizance of the personnel of the Union’s armed forces who have committed the offence.
The state military members may be included in the special treatment clause using a notification to the state government. The state armed forces, which serve a public purpose, may be placed under the similar authority of central officials concerning the section’s provisions with appropriate preservation of public safety as determined by the government.
During the failure of state machinery and installation of Article 356 of the Indian Constitution in the state, any judge or armed force member hired by the state government would act as a central official of the government.
Note: Prior sanction of the competent authority is required under section 19(1) of the Prevention of Corruption Act, 1988; whereas the same is required under section 197(1) of the CrPC for an offence committed while acting or purporting to act in the discharge of his official duty and not for any other reason.
Note: For filing cases against public servants, a prior notice under section 80(1) of CPC of two months has to be given to the public servant by post or be laid on his desk. This section aims to reduce the chance of further litigations. Notice under section 80(1) CPC is mandatory. If there is a need for litigation against the public servant without going for section 80(1) CPC, then leave of the court is mandatory under section 80(2) CPC, else the suit will be dismissed.
Case Laws Related to Section 197 CrPC
Here are some important case laws related to section 197 of the Criminal Procedure Code:
Chandan Basu vs the State of Bihar (2014)
The sanction for the prosecution of public servants under sections 420, 409, 467, 468, and 471 of the Indian Penal Code is not required.
The State of Orissa vs Ganesh Jew (2004)
Section 197 CrPC does not apply if the accused public servant had ceased to be a public servant on the date the court took cognizance of the offences under the Prevention of Corruption Act.
State of Bihar vs PP Sharma (1991)
In this case, it was held that the nature of the sanction order is administrative and not quasi-judicial.
Neera Yadav vs CBI (2017)
It was held that when a sanction under section 19 of the Prevention of Corruption Act, 1988, has already been granted, a sanction under section 197 CrPC is not required.
UP Judicial Officers Association vs UOI (2002)
We direct that no crime for investigation should be registered pursuant to any FIR without the permission of the Chief Justice of the High Court concerned when any criminal conduct is attributed to a judicial officer in the discharge of his duties or in the purported exercise or discharge of his duties.
BSNL vs Pramod Samant (2019)
Despite falling within the purview of the concept of state under Article 12 of the Indian Constitution, officers of Public Sector Undertakings (PSUs) will not be allowed to pursue sanctions under section 197.
Baijnath vs the State of MP (2016)
No penalty for prosecution under section 197(1) of the Criminal Procedure Code shall apply to all offences committed by public servants. If the nature of the offence does not relate to the public servant’s official duties, protection provided under this section is not provided.
Conclusion
Judiciary is an independent pillar of democracy. Public servants and judges should work ethically and without any bias in discharging their duties.
Since corruption is one of the obstructing factors in the country’s development, it needs to be addressed from the grassroots level to the top level.
Rich people taking advantage of their financial capacity try to influence the public servants and judges, which is a significant bottleneck that needs to be arrested for the smooth running of democracy. For this, efforts must be boosted to have a deep and thorough analysis of the existing laws, which is the current demand of the hour.
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