Sanction Required Even For Acts Done In Excess Of Official Duty

“No court shall take cognizance of any offence of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.”

Recently a group of women demanded the repeal of section 197 of the Code of Criminal Procedure along with the draconian Armed Forces (Special Powers) Act of 1958.

The demand of women in governance Network or WinG India follows an order of the Gauhati High Court to the Center to compensate the families of two Eastern Assam youths who were killed by the security forces six years ago after being branded as extremists.

In D. Devraja Vs Owais Sabeer Ussain the Court held that, the object of section 197 of the Code is to prevent public servants from being subjected to vexatious proceedings for the acts which are done in the discharge of their official duty or committed in excess of such duty or authority, further, to decide whether sanction is necessary, the test is whether the act is totally unconnected with the official duty or if there is reasonable nexus with the official duty.

A bench comprising Justice V Ramasubramanian and Justice Pankaj Mithal has reiterated that the Section 1979 (1) of the Code of Criminal Procedure is required even in cases where the official was acting in excess of his official duties. The Hon’ble Supreme Court referred to various precedent such as D. Devraja case and states that, ‘even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 of CrPC’ in this case the Hon’ble Supreme Court acquitted a person who was formerly an Executive Director of the Bharat Heavy Electricals Limited (BHEL) in a corruption case. The Court revolved around the former executive director of BHEL opting for limited tenders without following the prescribed procedure for pre-qualification of prospective tenders for a desalination plant’s.

There was allegation about collusion between executive director and four public servants.

During trial two individual accused passed away and other accused were found of guilty of various offences, where two public servants were convicted solely under the provision of the Indian Penal Code. The Court further states that the first accused the Executive Director who had retire prior to the filing of the final report did not receive the same protection under Prevention of Corruption Act the he could not have been prosecuted for offences as per BHEL position. In a appeal it was submitted as while no sanction was required to prosecute Executive Director under PC Act at the time of final report u section 197(1) of the CrPC previous sanction was still necessary for charges under IPC. The State who is respondent is present case contended that such sanctioned was only required when the offense was allegedly committed while acting in the discharging of official duties and denied all contention regarding connection between the alleged conspiracy and there official duties.

In view of the above the Supreme Court finally concluded, the Court uphold the contention advanced on behalf of the first accused that the prosecution ought to have taken previous sanction in term of section 197 (1) of the Code of Criminal Procedure for prosecuting the Executor Director for offence under the IPC.