Whether sanction under section 197 Cr.P.C. is required to prosecute a public servant with regard to I.P.C. offences, if prosecution is launched after his/her retirement?
Answer: There are two parts in this question: (1) whether sanction under Section 197 of Cr.P.C. is required to prosecute a public servant with regard to IPC offences, and (2) whether such sanction is required after his retirement.
Whether sanction is required for IPC offences?
The relevant extract of Section 197(1) of Criminal Procedure Code (Cr.P.C.) is reproduced below:
“197. Prosecution of Judges and public servants.— (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013—
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: …”.
It is clear from the above provisions that sanction under Section 197 Cr.P.C. is not necessary in respect of every public servant. Other than for a Judge or Magistrate, this sanction is required only in respect of a public servant who is not removable from his office save by or with the sanction of the Government. Here, Government implies “Governor” or “President”, as the case may be. If a public servant can be removed from his service by an authority lower than the Governor or the President or by any other authority (such as in a bank), then this sanction is not required for prosecution of such public servant.
Secondly, even in respect of such a public servant who is not removable from his office save by or with the sanction of the Government, sanction would be needed only if the alleged offence was committed by him while acting or purporting to act in the discharge of his official duty. If the offence was committed in his personal capacity or in any other manner (which is not while acting in discharge of his official duty or purporting to act so), then again this sanction would not be required.
Therefore, if any offence is committed, whether under the Indian Penal Code (IPC) or under any other Act, which was committed by him while acting or purporting to act in the discharge of his official duty, sanction may be needed if such public servant can be removed only by or with the sanction of the Governor or President.
It should thus be noted that sanction under Section 197 of Cr.P.C. is not required in respect of every public servant and that it may be needed in respect of IPC offences also, provided that such offences were committed while acting in the discharge of official duties.
Also see: Necessity of sanction for prosecution for IPC offences for a bank employee.
Whether sanction is required after retirement of the public servant?
The answer is “Yes”. Sanction under Section 197 Cr.P.C. is required even after the retirement of a public servant or after he otherwise ceases to be a public servant. This is in view of the fact that Section 197 Cr.P.C. specifically uses the words “…any person who is or was…”. Thus, this provision is applicable for the present and past public servants, provided other conditions are satisfied as explained above.
In the case of R. Balakrishna Pillai v. State of Kerala, AIR 1996 SC 901 at pp. 902-03 : (1996) 1 SCC 478, the Supreme Court has held that in the case of a person who is or was a public servant not removable from his office save by or with the sanction of the Government and who is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, sanction under S. 197 of Cr.P.C. is required for the prosecution of a public servant even after his retirement. The Supreme Court further pointed out that now S. 197(1) Cr.P.C. itself uses the language “When any person who is or was … a public servant …”.
[Note: Some portions of this answer were taken from the author’s book: Prevention of Corruption Act, by Dr. Ashok Dhamija, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]
There is a case where a public servant is co accused in offence u/s 302, 348, 203, 34. IPC . In main charge sheet he was not included. But in supplymentary charge sheet . he charged only U/S 348,203,34 of IPC before sanction of 197 cr.p.c.
QUESTION -1) Whether sanction of 197 is mandatory before filing charge sheet ?
2) Can HOn. court take cognisance and frame charge without having permission under 197 Cr.P.C.?
Section 197 Cr.P.C. is not applicable to every public servant, and secondly, it is not applicable for every act / offence. If this section is applicable in the case mentioned by you (while in service), then the sanction would be required even after retirement and the court cannot take cognizance without such sanction.