Prior sanction of Government not required for prosecuting Public Servants for acts not done in the discharge of official duties.

Whether prior sanction of the Government is required for prosecuting Public Servants?

Section 197 of CrPC (The Code of Criminal Procedure, 1973) provides that the public servants cannot be prosecuted for any act done by them while discharging their official duty. However, this protection would apply to the pubic servants if the alleged criminal acts were done by the public servants in the discharge of their official duties. A simple test to decide if an act was performed by the public servant is part of his official duty is to consider that if the public servant had neglected to perform the said act (criminal act complained of), would he be answerable for a charge of dereliction (willful neglect) of duty. If the answer to this question is yes, then the alleged would likely act be part of the public servant’s official duty.

The Supreme Court has clarified the aforesaid legal issue in the case titled SHADAKSHARI versus STATE OF KARNATAKA & ANR. (Criminal Appeal No 256/2024). The relevant paragraphs of the aforesaid judgment have reproduced below.

23. Thus, this court has been consistent in holding that Section 197 CrPC does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of official duties.

25. The question whether respondent No.2 was involved in fabricating official documents by misusing his official position as a public servant is a matter of trial. Certainly, a view can be taken that manufacturing of such documents or fabrication of records cannot be a part of the official duty of a public servant.