Introduction
The purpose of Section 197 of the Code of Criminal Procedure of 1973 is to shield civil servants from baseless and malicious legal actions related to their official duties. This section mandates the need for prior approval from the appropriate authority before prosecuting specific civil servants.

Importance of Sanction
Safeguarding Public Servants: Section 197 CrPC acts as a shield for public servants who act in good faith while performing their official duties. It ensures that they are not subjected to unnecessary legal harassment or prosecution based on false or politically motivated complaints.

Promotion of effective administration: By providing legal protection to civil servants, Section 197 CrPC encourages them to discharge their duties conscientiously and without fear of legal consequences. This is vital for the government and administration to work effectively.

Balancing accountability and governance: While holding civil servants accountable is important, it's equally crucial to strike a balance between accountability and letting them perform their duties without too much interference.

Preventing Misuse of Legal Processes: Without Section 197 CrPC, individuals or entities with ulterior motives could easily misuse the legal system to target public servants by filing baseless or politically motivated cases against them. The requirement of prior sanction acts as a check against such misuse.

Upholding the Principle of Administrative Neutrality: Public servants are expected to carry out their duties impartially and without bias. Section 197 CrPC helps maintain this administrative neutrality by protecting them from undue legal pressure or harassment that may compromise their ability to act impartially.

Is Sanction Required for Filing FIR?
For filing of a First Information Report (FIR) against a public servant, there's no obligatory requirement to secure prior sanction, as mandated by Section 197 of the Code of Criminal Procedure, 1973.

When Sanction Not Required?
Pursuant to the Criminal Law Amendment Act of 2018, it's important to note that no prior sanction is necessary for a public servant facing allegations under the specified sections of the Indian Penal Code, which include sections 166A, 166B, 354, 354A, 354B, 354C, 354D, 370, 375, 376, 376A, 376AB, 376C, 376D, 376DA, 376DB, or 509.

When Sanction is Required?
Section 197 (1) of the Code of Criminal Procedure, 1973 applies only to such public servants as are not removable from office save or with the sanction of the State Government or of the Central Government. In other words, in order that the protection under the section may apply, the public servant must be removable from office not by any other authority but with the sanction of the State Government or the Central Government.

When obtaining sanction is a necessary prerequisite for initiating legal proceedings, it must be secured before the charge sheet is presented to the magistrate. If, in such a case, the sanction is obtained after the magistrate has already taken cognizance of the offense, it becomes ineffective, and the prosecution will likely fail due to the absence of the required sanction.

However, if the law simply states that no court can proceed with the trial without a valid sanction (as seen in Section 7 of the Explosive Substances Act, 1908), obtaining the sanction even after the case has been committed but before the trial begins in the Court of Sessions is considered acceptable and in compliance with the law.

Before taking cognizance by the court of an alleged offence involving a public servant, it's imperative to obtain the requisite sanction, especially if the purported misconduct occurred in the course of his official duties. However, if the alleged act bears no relevance to his official responsibilities, obtaining such sanction is unnecessary.

Who Will Give Sanction?
When needed sanction should always be given by the authorized person, expressed in the name of the President or the Governor and must be duly authenticated in accordance with the rules framed under Articles 77 or 166 of the Constitution of India, as the case may be.

Court Judgments:
As regards separation of offences requiring sanction from those not requiring sanction in one and the same case and in regard to the same individual the law seems to have crystallized in this point in Baijnath v. State of M.P.

In this case, one of the accused faced charges under Section 409 (criminal breach of trust) and Section 477A IPC (falsification of accounts) without the necessary permission under Section 197 CrPC. Although these offenses seemed to occur while the accused held a position subject to Section 197 CrPC, the Supreme Court reviewed prior cases and concluded that no sanction was required for prosecuting the accused under Section 409 IPC.

This decision was based on the fact that the act of criminal misappropriation did not occur while the appellant was acting in his official capacity, and it had no direct link to his duties as a public servant. The official position merely provided an opportunity for the offense of falsifying accounts.

However, the Court determined that the offense under Section 477A IPC fell within the scope of official duties (specifically, maintaining accounts). Therefore, the absence of Section 197 CrPC sanction was detrimental to the prosecution in this regard. The conviction under Section 477 IPC was overturned while the conviction under Section 409 IPC was upheld, as a result.

If a civil servant is acting lawfully, he cannot be charged with a criminal offence such as breach of trust under Section 409 IPC, as confirmed by this decision. This is in accordance with Section 197 CrPC. It also clarifies that cheating and bribery cannot be considered crimes committed by public officials in the performance of their official duties.

Similarly, it has been held that cheating and bribery cannot inherently be held to be committed by public officials when they act or purport to act in the discharge of their official duties. By falsely certifying the fake bills of a contractor a public servant did not commit the offence of abetment of cheating in discharge of his official duty and as such no sanction under Section 197 CrPC was required to prosecute him.

Similarly, abusing and kicking a subordinate, abusing an advocate as a 'rowdy', big gambler and a mischievous element by a magistrate even in a report to the District Judge or abusing a complainant by a police officer for the mere fault of the former in lodging a complaint could not be regarded as acts done in the discharge of the official duties of a public servant and as such no sanction would be necessary to prosecute a public servant indulging in such acts.

Where, however, a Deputy Superintendent of Police used force against an accused to effect his arrest, it was held that no case of assault could be lodged against him without sanction under Section 197 CrPC, as his act was reasonably connected with his duty.

Competency of law: Secretary refused sanction to prosecute a Government Pleader — In the present case the Government decided to refuse sanction and the fact was communicated by the Law Secretary. As sanction to prosecute under Section 197 CrPC is to be granted by the appointing authority, the same authority can refuse sanction also. The Law Secretary of the Government is thus competent to refuse sanction to prosecute a Government Pleader or an ex-Government Pleader. Raman Kutty Menon v. State of Kerala, 1986 Cri LJ 758 at p. 762

Sanction by Deputy Secretary: Validity of. The Secretary only has the power of according sanction. However, once the orders of sanction were given by the Minister or the Secretary such order could always be issued by the Deputy Secretary by order and in the name of the Governor. However, the statement did not find support from the Allocation of Business rules and the panel lawyer had not been able to show that by any special or general order the powers to accord sanction for prosecution were given to the Deputy Secretary. In the aforesaid circumstances the sanction for prosecution was not proved to have been given by the person competent to accord sanction. Rajendra Prasad v. State of M.P. 1993 Cri LJ 750 at p. 753 (MP)

Necessity of examination of sanctioning authority: The detailed investigation report and the connected records were sent to the Collector for his perusal. In his order, the Collector has affirmed that, following a thorough examination of the evidence and the circumstances pertaining to the allegations, he is convinced that legal prosecution of the appellant is warranted.

There is no need to suspect the correctness of the statement of the Collector that he studied the records and applied his mind before according the sanction for prosecution though he was not examined. Raja Singh v. State, 1995 Cri LJ 955 at p. 959 (Mad)

Sanction of Central Government: It was not disputed that in case a finding has to be given that conspiracy was made initially at Singapore, then provisions of Section 188 of CrPC would have directly come into play. Section 188 of the CrPC lays down that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offence as if it had been committed at any place within India, provided that no such offence shall be enquired into or tried in India except with the previous sanction of the Central Government. Vinod Kumar Jain v. State through C.B.I. 1991 Cri LJ 669 at pp. 671, 672: (1900) 42 DLT 186: (1990) DRJ 121

Sanction and opportunity of hearing: The conclusion of the learned judge that the opportunity of hearing must be granted and the non-grant of the same would vitiate the order of sanction is clearly contrary to the following observation of this Court in P.P. Sharma's case.

The assertion made by the learned single judge that the principles of natural justice were violated due to the absence of an opportunity before the case's registration is clearly unfounded and contradictory. State of Maharashtra and others v. Ishwar Piraji Kalpatri and others, 1996 Cri LJ 1127 at p. 1131 (SC)

If there is any lacuna in the sanction order, then entire prosecution vitiates: The sanctioning authority should not only apply its mind to the facts of the case but also give its reasons for according sanction. The sanction order must contain the said material so as to be in accordance with Section 20 of the Prevention of Food Adulteration Act, 1954.

If there is any deficiency in the sanction order, it renders the entire prosecution invalid, and the accused is entitled to its advantages. In the present case also the sanction order was not as per proper sanction order. Therefore, the conviction and sentence imposed by the appellate Court were set aside. Adda Kasivisweswara Rao v. Sate of A.P., 1991 Cri LJ 227 at P. 229

If the sanction order recites that all the materials required for sanction are placed before it such recital should be deemed to be correct as it was a matter of regular official act. 1979 Cr LJ 1265

Where a sanction for the prosecution has to be accorded by the President, Deputy Secretary can authenticate the order as the one made by the President. AIR 1967 Punj. 174

Conclusion:
Securing sanction is vital to shield public servants who have acted in good faith from unjust harassment arising from complaints. Without this safeguard, public servants would operate under constant fear and external pressures, hindering their ability to fulfill their duties. Section 197 of the CrPC is pivotal in enabling public servants to perform their official roles without the threat of unfounded legal actions, striking a balance between accountability and safeguarding those who act in good faith, thereby supporting efficient governance and administration.

References:

1. https://devgan.in/crpc/section/197/
2. Andhra Pradesh Police Academy, First Course in Investigation
3. P. Venkatesh, Police Diaries, Statements, Reports and Investigations, Premier Publishing Company, Allahabad
4. R. Deb, Principles of Criminology, Criminal Law and Investigation, S.C. Sarkar & Sons, Calcutta

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565