ARTICLES ON SECTION 197 CRIMINAL PROCEDURE CODE : PART - I

SOME REFLECTION IN INDUSTRIAL, SERVICE AND CRIMINAL JURISPRUDENCE : THE ANALOGY OF SECTION 197 OF CRIMINAL PROCEDURE CODE : SANCTION FOR PROSECUTION OF A GOVERNMENT SERVANT AND THE TANTRUMS THORWN BY HIM TO ESCAPE PROSECUTION : AN APEX JUDICIAL DICTUM : PART - I

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),SHRAM BHAWAN, JAGJIVAN NAGAR,DHANBAD:826003

PRELUDE : As a professional and an Author since last 20 years, it has been my endeavour to write sequel of articles on single subject. In Labour Law Note my sequel articles 'The Proportionality of Punishment in Disciplinary Proceedings" has entered the CCLXI part wherein I have discussed 236 case-laws pertaining to Government organisations, Autonomous Bodies, Private as well as Public sectors. The sequel has been appearing in LLN since 2010.I had also penned sequels on Article 311 (2) (b) , Section 11A of Industrial Disputes Act, 1947 and Strike. As labour professionals, at times, we come across Section 197 Cr P C.I have published 4 articles on the subject which have appeared in LLN, LLJ and FLR .In our Department there are some officers who say that Railway Officers cannot be prosecuted without obtaining sanction under section 197 Cr P C.I fail to understand as to how the senior officers can misinterpret section 197, CR P C. The language of section 197,Cr P C is as follows : 

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-

(a) 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 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: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

(3A) 1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

The section says that only persons who are engaged in affairs of the Union (Union of India) or State (State here means Province or State of the Union of India) and are remunerated by State or Central Government, can claim immunity under Section 197 Cr P C. Railway Officers, as we know, are not Governmnet Servants nor covered under CCS Rules.They are the employees of the Railway Board which is a "Body Corporate" created under Railways Act,1989.A Body Corporate" is a "Corporation". I fail to understand as to how corpoartion employees can have the immunity under Section 197, Cr P C ! But we have senior officers who misguide us which is bad and sad.Such Officers have awarded gratuity to convicted persons.This is nothing but irony of fate.

Now, I have decided to pen a sequel of articles on section 197, Cr P C and now presenting Part - I wherein a Government Officer was prosecuted under sanction under Section 197, Cr P C but he approached the Hon'ble Supreme Court under Article 32 of the Constitution of India by throwing some feeble arguments. The case-law is as follows :

THE CASE-LAW :

M. K. GOPALAN AND ANOTHER vrs THE STATE OF MADHYA PRADESH[AIR 1954 SC 362 = 1954 SCR 168]DoJ : 5 April, 1954[CONSTITUTION BENCH]

FACTS OF THE CASE :

      One, Shri M K Gopalan was an Agricultural Demonstrator of the Government of Madras and was employed as an Assistant Marketing Officer in Central Provinces and Berar for the purchase and movement of blackgram and other grains on behalf of the Madras Government. He, as well as the second petitioner and 44 others, were under prosecution before Shri K. E. Pandey, a Special Magistrate of Nagpur, Madhya Pradesh, in Case No. I of 1949 pending before him on charges of cheating, attempt to commit cheating, criminal breach of trust and criminal conspiracy, (i.e., for offences punishable under section 420 read with section 120-B or 109 of the Indian Penal Code, section 409 and section 409 read with section 120-B of the Indian Penal Code) and the allegation was that by reason of the acts committed by the accused, the Government of Madras had to incur an expenditure of Rs. 3,57,147.10 in excess of the amount due. The Special Magistrate before whom the case was pending was appointed by the Madhya Pradesh Government under section 14 of the Criminal Procedure Code, and as the first petitioner was a servant of the Government of Madras, the prosecution against him had been initiated by sanction given by the Government of Madras under section 197(1) of the Criminal Procedure Code.

The validity of the prosecution was challenged on various grounds, and the writ petition was filed in the Hon'ble Supreme Court for quashing the proceedings on the ground of their invalidity. The three main points taken before the Hon'ble Apex Court were:

(1) Section 14 of the Criminal Procedure Code, in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first, second or third class in respect of particular cases and thereby to constitute a Special Magistrate for the trial of an individual case, violates the guarantee under Article 14 of the Constitution;

(2) The sanction given under section 197(1) of the Criminal Procedure Code for the prosecution as against the first petitioner was invalid, inasmuch as the order of the Madras Government granting the sanction did not disclose that all the facts constituting the offences to be charged were placed before the sanctioning authority nor does the sanction stated the time or place of the occurrence or the transactions involved in it, or the persons with whom the offences were committed.

(3) Even if the sanction under section 197 (1) of the Criminal Procedure Code was valid, it was for the very Government which accords the sanction to specify also the Court before which the trial is to be held under section 197(2) and in the absence of any such specification by the said Government, the power under section 14 of the Criminal Procedure Code of appointing a Special Magistrate for the trial of the case cannot be exercised by the Madhya Pradesh Government.

The contention under (2) above was raised relying on the Privy Council case in Gokulchand Dwarkadas Morarka vrs. The King, A.I.R. 1948 P.C. 82.

The above points were dealt with by the Hon'ble Apex Court seriatim:

 The First Ground :

      In support of the objection raised under Article 14 of the Constitution, reliance was placed on the decision of the Apex is Court in Anwar Ali Sarkar's case, [1952] S.C.R. 284 . That decision, however, applies only to a case where on the allotment of an individual case to a special Court authorised to conduct the trial by a procedure substantially different from the normal procedure, discrimination arises as between persons who have committed similar offences, by one or more out of them being subjected to a procedure, which is materially different from the normal procedure and prejudicing them thereby. In the pre- sent case, the Special Magistrate under section 14 of the Criminal Procedure Code has to try the case entirely under the normal procedure, and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar's case (1) and the other cases following it arises here. A law vesting discretion in an authority under such circumstances cannot be said to be discriminatory as such, and is therefore not hit by Article 14 of the Constitution. There is, therefore, no substance in this contention.

The Second Ground :

      As regards the second ground which is put forward on the authority of the Privy Council case of Gokulchand Dwarkadas Morarka vrs. The King, A.I.R. 1948 P.C. 82. By the time the writ petition was filed in the Hon'ble Apex Court, the trial was not commenced. The Privy Council itself in the case mentioned above had recognised that the lacunas, if any, in the sanction of the kind contemplated by that decision can be remedied in the course of the trial by the specific evidence in that behalf. Learned counsel for the State, without conceding the objection raised, had mentioned before the Hon'ble Apex Court that evidence in that behalf will be given at the trial. It was, therefore, unnecessary to decide the point whether or not the sanction, as it is, and without such evidence was invalid.

The Third Ground :

       The third ground was somewhat seriously pressed before the Hon'ble Court. The contention of counsel for the petitioners was based on sub-section (2) of section 197 of the Criminal Procedure Code, which runs as follows :-

 "The Governor-General or Governor, as the case may be, exercising his individual judgment may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate, or public servant is to be conducted, and may specify the Court before which the trial is to be held."

The argument was :

(i)  that it is for the very Government which sanctioned the prosecution under section 197(1) to specify the Court before which the trial is to be held and no other, and that consequently, in a case to which section 197(1) applies, the exercise of any power under section 14 is excluded. It was said that though the exercise of the power under section 197(2) in so far as it relates to specification of the Court is concerned is discretionary and optional, but if in an individual case, that power is not exercised, it must be taken that the appropriate Government did not feel called upon to allot the case to any special Court, and that, therefore, such allotment by another Government under section 14 would affect or nullify the power of the appropriate Government under section 197(2).

(ii)   that such dual exercise of the power by two Governments would be contrary to the policy underlyingsection 197 which is for the protection of the public servant concerned, by interposing the sanction of the Government between the accuser and its servants of the categories specified therein. This argument is farfetched, stated the Hon'ble Supreme Court. In the first instance, there is no reason to think that section 197(2) is inspired by any policy of protection of the concerned public servant, as section 197(1) is. There can be no question of protection involved by an accused being tried by one Court rather than by another at the choice of the Government. The power under section 197(2) appears to be vested in the appropriate Government for being exercised, on grounds of convenience, or the complexity or gravity of the case or other relevant considerations. The argument as to the implication of non-exercise of the power by the appropriate Government under section 197 (2) is also untenable. The power to specify a Court for trial in such cases is a permissive power, and there can be no such implication, as is contended for, arising from the non-exercise of the power.

APPRECIATION OF THE CONTENTIONS RAISED :

      On appreciating the contentions raised before it, the Hon'ble Supreme Court stated that the  entire argument, however, is based on a misconception of the respective scopes of the powers under section 197 (2) and section 14. The one relates to the "Court" and the other to the "Person". Under sub-section (2) of section 197, the sanctioning Government may specify a Court for the trial of the case but is not bound to do so. When it does not choose to specify the Court, the trial is subject to the operation of the other provisions of the Code. But even when it chooses to exercise the power of specifying the Court before which the trial is to be held, such specification of the Court does not touch the question as to who is the person to function in such Court before which the trial is to take place. That is a matter still left to be exercised by the Provincial Government of the area where the trial is to take place. The Hon'ble Court stated that argument of learned counsel proceeds on treating the word "Court" in sub-section (2) of section 197 as being the same as a "person" in sub-section (1) of section 14, for which there is no warrant. There is accordingly no substance in this contention. In addition to the above three points, learned counsel for the petitioners had also raised a further point that in the present case Shri K. L. Pandey who was first appointed as a Special Magistrate for the trial of the case, and to whose file on such appointment this case was transferred, was later on appointed as acting Sessions Judge for some time and ceased to have this case before him. He reverted back from his position as acting Sessions Judge to his original post. The point taken is that without a fresh notification appointing him as Special Magistrate and transferring the case to him as such, he cannot be said to be seized of this case as Special Magistrate. Here again, learned counsel for the State informed the Hon'ble Courts , without conceding the point so taken, that he is prepared to advise the Government to issue the necessary notification and have the case transferred. In view of that statement, it is unnecessary to pronounce on the objection so raised.

THE CONCLUSION :

      Coming to the conclusion, the Hon'ble Apex court stated that in the result, all the points raised on behalf of the petitioners fail, and this petition must be dismissed. It is desirable to observe that the questions above dealt with appear to have been raised before the High Court at previous stages by means of applications under Article 226 and decided against. No appeals to the Apex Court had been taken against the orders therein. Nothing that we have said is intended to be a pronouncement as to the correctness or otherwise of those orders, nor to encourage the practice of direct approach to this Court (except for good reasons) in matters which have been taken to the High Court and found against, without obtaining leave to appeal therefrom, stated the Hon'ble Court

THE VERDIRCT :

The Writ Petition was dismissed.