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CRPC 197 Sanction not required to prosecute police or public servant

Monday, May 9, 2016

Sanction NOT required - to Prosecute Police / Govt. or Public Servants - for Criminal Offences

LATEST SC Judgment - 25 April 2016 - Just 2 Days Back !
Sanction NOT required - to Prosecute Police / Govt. or Public Servants - for Criminal Offences
Protection of ‘sanction’ to Govt. servants cannot be camouflaged to commit crime;
SC Directions in this Judgment :- SC summarizes principles governing ‘sanction’ :-
Held:
A :- SC Directions - “37. The principles emerging from the aforesaid decisions are summarized hereunder :
I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.”
B :- “31. In Shambhoo Nath Misra v. State of U.P. & Ors. 1997 (5) SCC 326 this Court considered the question when the public servant is alleged to have committed the offence of fabrication of false record or misappropriation of public funds etc. Can he be said to have acted in discharge of official duties ? Since it was not the duty of the public servant to fabricate the false records, it was held that the official capacity only enabled him to fabricate the records and misapporopriate the public funds hence it was not connected with the course of same transaction. This Court has also observed that performance of official duty under the colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The court during trial or inquiry has to apply its mind and record a finding on the issue that crime and official duty are integrally connected or not. This Court has held thus : “4. …. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duty are not integrally connected.
5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.”
C :- “Para 35. This Court has held that in case there is an act of beating a person suspected of a crime of confining him or sending him away in an injured condition, it cannot be said that police at that time were engaged in investigation and the acts were done or intended to be done under the provisions of law. Act of beating and confining a person illegally is outside the purview of the duties.”
D :- “Para 36. In Paramjit Kaur (Mrs) v. State of Punjab & Ors. (1996) 7 SCC 20, this Court directed the Director, CBI to appoint an investigation team headed by a responsible officer to conduct investigation in the kidnapping and whereabouts of the human rights activist and also to appoint a high- powered team to investigate into the alleged human rights violations.”
E :- "Para 38. In the instant cases, the allegation as per the prosecution case it was a case of fake encounter or death caused by torture whereas the defence of the accused person is that it was a case in discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct there is no requirement of any sanction. However it would be open to the accused persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of prosecution version and can re-decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official duty, the court shall re-examine the question of sanction and take decision in accordance with law. The trial to proceed on the aforesaid basis. Accordingly, we dispose of the appeals/writ petition in the light of the aforesaid directions."
………………………J.
                                                  (V. Gopala Gowda)
New Delhi;                             ………………………J.
April 25, 2016.                              (Arun Mishra)
ITEM NO.1A-For Judgment     COURT NO.9               SECTION IIB/X
Read more at: http://www.livelaw.in/protection-sanction-govt-servants-cannot-camouflaged-commit-crime-sc/
►►► SC Order - On SC Website :- http://judis.nic.in/supremecourt/imgs1.aspx?filename=43569
►►► SC Order - On Indian Kanoon :- https://indiankanoon.org/doc/71777130/

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