I have covered this issue of requirement of sanction for prosecution under Section 197 of Cr.P.C. for an offence under the Prevention of Corruption Act in detail in my book [Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths, New Delhi (ISBN: 978-81-8038-592-6)].
The law is well settled that no sanction is necessary under Section 197 of the Cr.P.C., for prosecution of a public servant for an offence of bribery due to the reason that a public servant in taking a bribe cannot be said to be acting or purporting to act in the discharge of his official duty. There are a large number of judgments on this issue and I have covered about 20 judgments of various courts on this issue in my above-mentioned book.
However, while sanction under Section 197 Cr.P.C. is not applicable for a corruption case, sanction under Section 19 of the Prevention of Corruption Act is still required to prosecute a public servant for a corruption case.
For example, way back in 1948, it was held by Bombay high court in the case of Lumbhardar Zutshi v. Emperor, AIR 1948 Bom 79 : 1949 Cri LJ 4 (DB), it was held that sanction under S. 197(1) was not required for a corruption offence on the ground that one cannot see how a Government servant in proposing, negotiating or accepting illegal gratification can ever be said to act in the discharge of his official duty, and that his actions are a complete negation of it.
The decision of the Federal Court in H.H.B. Gill v. Emperor, AIR 1947 FC 9 at p. 11 : 48 Cri LJ 165, is to the same effect. Likewise, the Privy Council in the cases of H.H.B. Gill v. The King, AIR 1948 PC 128 : 49 Cri LJ 503, and Phanindra Chandra v. The King, AIR 1949 PC 117 : 50 Cri LJ 395, had held that sanction under S. 197, Cr.P.C., is not necessary against a public servant on charges of bribery.
These two decisions of the Privy Council were followed by the Supreme Court in Ronald Wood Mathams v. State of W.B., AIR 1954 SC 455 : (1955) 1 SCR 216 : 1954 Cri LJ 1161, to hold that the sanction under S. 197, Cr.P.C., is not necessary for instituting proceedings against a public servant on charges of bribery.
Subsequent decisions of the courts in India are also on the same line that sanction under Section 197 Cr.P.C. is not required for a corruption case.
So, receiving an illegal gratification is not considered to be acting or purporting to act in the discharge of his official duty.
However, as I mentioned above, sanction under Section 19 of the Prevention of Corruption Act is still required to prosecute a public servant for a corruption case.
[Note: Some of above content has been taken from my above-mentioned book.]
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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