OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE

PROJECT REPORT SUBMITTED TOWARDS FULFILLMENT OF THE SUBJECT :

CRIMINAL LAW-II

Under the guidance of : DR. FATHER PETER LADIS.F

(FACULTY OF CRIMINAL LAW-II )

Submitted by : Rajeev Ranjan

B.A.L.LB(HONS.), Roll No.-1360
4th semester, 2nd Year

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA

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 DECLARATION

The researcher hereby declares that this research paper is prepared by

the researcher with the help of only those sources which are mentioned
in the bibliography part of this paper ,foot notes on the last of each page.
This research paper is not a copy of any ones research paper as per the
knowledge of the researcher.

This research paper is firstly presented to DR. Father Peter, the faculty
of Criminal Law-II in The Chanakya National Law University, Patna.
Before this, this paper has never been submitted to any other
teacher/professor or any other school/college/university.

Rajeev Ranjan

19/04/2017

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr.Father Peter whose guidance helped

me a lot with structuring my project.

I owe the present accomplishment of my project to my friends, who

helped me immensely with materials throughout the project and without
whom I couldnt have completed it in the present way.

I would also like to extend my gratitude to my parents and all those

unseen hands who helped me out at every stage of my project.

THANK YOU,
RAJEEV RANJAN
Roll No. 1360

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S.No PARTICULARS PAGE

1. ACKNOWLEDGEMENT 3

2. RESEARCH METHODOLOGY 5-6

3. CHAPTER 1 7-11

4. CHAPTER 2 12-17

5. CHAPTER 3 18-20

6. CHAPTER 4 21

7. BIBLIOGRAPHY 22

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RESEARCH METHODOLOGY

Aims and Objectives:

The aim of this research paper is to present a detailed study on the offences affecting the
administration of justice
Scope and Limitations:
The researcher has used the doctrinal method and has relied on the secondary sources for the
content of the research paper.
Owing to the large number of topics that could be included in the project, the scope of this research
paper is exceedingly vast. However in the interest of brevity, this paper has been limited to the
topics which deal with social aspect of the topic only.
.Research Questions:
The three research questions are as follows:
1.What are the offences affecting the administration of justice in India ?
2 What are the legal provisions to handle such offences?
3 Does the law needs any change in order to be more effective ?
Chapterisation:
The project has been divided into four chapters :
The first chapter deals with the trial of Public Servants In India.
The second chapter deals with procedure to be followed against offences.
The third one deals deals with the constitutional validity of the procedure .
The fourth chapter deals with the conclusion, criticism & suggestion part..
Sources of Data:
The researcher has relied on the following secondary sources of data:
Books
Websites
Articles

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Method of Writing
The method of writing followed in this project is both analytical and descriptive.
Mode of Citation
The researcher has followed a uniform mode of citation in this project.
Hypothesis
Before doing the research work, the researcher had certain hypothesis which were to be tested
during research. The hypothesis is following-
1. Trial against a public servant needs the prior sanction of the government authority is a
privilege.
2. The privilege to the public authority is more misused than used.

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 CHAPTER-1

TRIAL OF PUBLIC SERVANTS IN INDIA

Trial : - In law, a trial is a coming together of parties to a dispute, to present information (in the
form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes.
One form of tribunal is a court. The tribunal, which may occur before a judge, jury, or other
designated trier of fact, aims to achieve a resolution to their dispute.
When we talk about trial, generally we refer to the trial which is in the case where there is a crime
committed/alleged to be committed by an accused but we generally do not refer to trial of public
servants. In order to understand the procedure of trial of public servants, first and foremost we
need to understand that who can be called as public servants.
So, as per the section 21 of The Indian Penal Code (45 of 1860 ), the definition of Public Servant
is-
The words "public servant' denote a person falling under any of the descriptions hereinafter
following; namely:-
Every Commissioned Officer in the Military, [Naval or Air] Forces [of India];[Third- Every
Judge including any person empowered by law to discharge, whether by himself or as a member
of any body of persons, any adjudicatory functions;
Every officer of a Court of Justice [(including a liquidator, receiver or commissioner)] whose
duty it is as such officer, to investigate or report on any matter of law or fact, or to make,
authenticate, or keep any document, or to take charge or dispose of any property, or to execute
any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court,
and every person specially authorized by a Court of Justice to perform any of such duties;
Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public
servant;
Every arbitrator or other person to whom any cause or matter has been referred for decision or
report by any Court of Justice, or by any other competent public authority;
Every person who holds any office by virtue of which he is empowered to place or keep any
person in confinement;
Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give
information of offences, to bring offenders to justice, or to protect the public health, safety or
convenience;

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 Every officer whose duty it is, as such officer, to take, receive, keep or. expend any property on
behalf of [the Government], or to make any survey, assessment or contract on behalf of [the
Government], or to execute any revenue process, or to investigate, or to report, on any matter
affecting the pecuniary interests of [the Government], or to make, authenticate or keep any
document relating to the pecuniary interests of [the Government], or to prevent the infraction of
any law for the protection of the pecuniary interests of [the Government]
Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to
make any survey or assessment or to levy any rate or tax for any secular common purpose of any
village, town or district, or to make, authenticate or keep any document for the ascertaining of
the rights of the people of any village, town or district;
Every person who holds any office in virtue of which he is empowered to prepare, publish,
maintain or revise an electoral roll or to conduct an election or part of an election
Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central,
Provincial or State Act or a Government company as defined in section 617 of the Companies
Act, 1956 (1 of 1956).]
The above mentioned posts are considered to be a post of Public Servant. Now, a question arises
that if they have been accused with some charges, then what will be the process of prosecution that
will be followed. The answer lies within the section 197 of Code Of Criminal Procedure,1973
which clearly states that-
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.
(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

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provisions of that sub-section will apply as if for the expression "Central Government" occurring
therein, the expression "State Government" were substituted.
(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.

Important cases related to the provision-

Matajog Dobey v. H.C. Bhari [(1955) 2 SCR 925 = AIR 1956 SC 44]

A Constitution Bench of Supreme Court had occasion to consider the scope of Section 197 of the
Code of Criminal Procedure after holding that Section 197 of the Code of Criminal Procedure was
not violative of the fundamental rights conferred on a citizen under Article 14 of the Constitution,
this Court observed:
Section 107 Public servants have to be protected from harassment in the discharge of official
duties while ordinary citizens not so engaged do not require this safeguard. It was argued that
Section 197, Criminal Procedure Code vested an absolutely arbitrary power in the Government to
grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or
even indicate any guiding principles to control the exercise of the discretion.
There is no question of any discrimination between one person and another in the matter of taking
proceedings against a public servant for an act done or purporting to be done by the public servant
in the discharge of his official duties. No one can take such proceedings without such sanction.
On the Code was attracted or not and to ascertain the test to be adopted for finding out whether of
scope and meaning of that section, Their Lordships stated:
Slightly differing tests have been laid down in the decided cases to ascertain the scope and the
meaning of the relevant words occurring in Section 197 of the Code; `any offence alleged to have
been committed by him while acting or purporting to act in the discharge of his official duty. But
the difference is only in language and not in substance.
The offence alleged to have been committed must have something to do, or must be related in
some manner, with the discharge of official duty. No question of sanction can arise under Section
197, unless the act complained of is an offence; the only point to determine is whether it was
committed in the discharge of official duty. There must be a reasonable connection between the
act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the
discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the
merits. What we must find out is whether the act and the official duty are so interrelated that one

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can postulate reasonably that it was done by the accused in the performance of the official duty,
though possibly in excess of the needs and requirements of the situation.
Privy Council and that of Supreme Court, Their Lordships After referring to the earlier decisions
of the Federal the summed up the position thus:
The result of the foregoing discussion is this: There must be a reasonable connection between the
act and the discharge of official duty; the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the
performance of his duty.
Their Lordships then proceeded to consider the stage at which the need for sanction under Section
197(1) of the Code had to be considered. Their Lordships stated:
The question may arise at any stage of the proceedings. The complaint may not disclose that the
act constituting the offence was done or purported to be done in the discharge of official duty; but
facts subsequently coming to light on a police or judicial inquiry or even in the course of the
prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is
necessary or not may have to be determined from stage to stage. The necessity may reveal itself in
the course of the progress of the case.

Pukhraj v. State of Rajasthan [(1973) 2 SCC 701 = 1973 SCC (Cri.) 944]

Important points laid down in the case-

While the law is well settled the difficulty really arises in applying the law to the facts of any
particular case. The intention behind the section is to prevent public servants from being
unnecessarily harassed. The section is not restricted only to cases of anything purported to be done
in good faith, for a person who ostensibly acts in execution of his duty still purports so to act,
although he may have a dishonest intention. Nor is it confined to cases where the act, which
constitutes the offence, is the official duty of the official concerned.
Such an interpretation would involve a contradiction in terms, because an offence can never be an
official duty. The offence should have been committed when an act is done in the execution of
duty or when an act purports to be done in execution of duty. The test appears to be not that the
offence is capable of being committed only by a public servant and not by anyone else, but that it
is committed by a public servant in an act done or purporting to be done in the execution of duty.
The section cannot be confined to only such acts as are done by a public servant directly in
pursuance of his public office, though in excess of the duty or under a mistaken belief as to the
existence of such duty. Nor need the act constituting the offence be so inseparably connected with
the official duty as to form part and parcel of the same transaction. What is necessary is that the
offence must be in respect of an act done or purported to be done in the discharge of an official
duty. It does not apply to acts done purely in a private capacity by a public servant.

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Expressions such as the `capacity in which the act is performed, `cloak of office and `professed
exercise of the office may not always be appropriate to describe or delimit the scope of section.
An act merely because it was done negligently does not cease to be one done or purporting to be
done in execution of a duty.

Bakhshish Singh Brar v. Gurmej Kaur [(1987) 4 SCC 1988 SCC (Cri.) 29]

Apex Court stated that it was necessary to protect the public servants in the discharge of their
duties. They must be made immune from being harassed in criminal proceedings and prosecution,
and that is the rationale behind Section 196 and Section 197 of the Code. But it is equally important
to emphasize that rights of the citizens should be protected and no excesses should be permitted.
Protection of public officers and public servants functioning in discharge of their official duties
and protection of private citizens have to be balanced in each case by finding out as to what extent
and how far is a public servant working in discharge of his duties or purported discharge of his
duties, and whether the public servant has exceeded his limit.

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 CHAPTER-2

PROCEDURE TO BE FOLLOWED AGAINST SUCH OFFENCES

Section 80 of the CPC provides for sending a notice to the government or a public officer if one
wants to institute a suit against the government or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity until the expiration of two
months. The object of the notice is to give Secretary of State or the public officer an opportunity
to reconsider his legal position and to make amends or afford restitution without recourse to a court
of law.1 This section has been enacted as a measure of public policy and the underlying purpose is
the advancement of justice and securing of public good by avoidance of unnecessary litigation.2
Further, it has been intended to alert the Government or a public officer to negotiate just claims
and to settle them if well-founded without adopting an unreasonable attitude by inflicting wasteful
expenditure on the public exchequer.3 The Supreme Court, in the landmark case of Bihari
Chowdhary v. State of Bihar 4 has stated that, The object of the section is the advancement of
justice and the securing of public good by avoidance of unnecessary litigation. This project
analyses the position of the section as it stands today and its applicability.

NOTICE UNDER SECTION 80(1) OF CODE OF CIVIL PROCEDURE

Suits between individuals require no notice to be given to the defendant by the plaintiff before
filing of a suit. However as per Section 80 of the Code of Civil Procedure, 1908, no suit will be
instituted against the Government or against a public officer with regards to any act done by such
an officer in his official capacity, until the expiration of two months after the notice in writing has
been delivered to, or left at the office of :
(a) in the case of a suit against the Central Government, except where it relates to a railway, a
Secretary to that Government;
b) in the case of a suit against the Central Government where it relates to a railway, the General
Manager of that railway;
(c) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief
Secretary to that Government or any other officer authorized by that Government in this behalf;

1
Ghanshyam Das v. Union of India, (1984) 3 SCC Del 298.
2
Mulla on the Code of Civil Procedure, J.M. Shelat, 18th edn., LexisNexis Butterworths
3
State of Punjab v. Geeta Iron & Brass Works Ltd., (1978) 1 SCC 68.
4
AIR 1984 SC 1043

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(d) in the case of a suit against any other State Government, a Secretary to that Government or the
Collector of the district;
(e) in the case of a public officer, delivered to him or left at his office, stating the cause of action,
the name, description and place of residence of the plaintiff and the relief which he claims.5
NATURE AND APPLICABILITY
Section 80 enumerates two types of cases i) suits against the government; and ii) suits against
public officers in respect of acts done or purporting to be done by such public officers in their
official capacity. Regarding the former, the notice is required to be given in all cases. Regarding
the latter, notice is necessary only when the suit is in respect of any act Purporting to be done
by the public officer in the discharge of his duty, not in any other cases.6 Although it has been said
that substantive rights are to be determined in accordance with the provision of the Constitution 7,
Section 80 of the Code is not a procedural provision, but a substantive one.8
A statutory body may be an instrumentality of the state within the meaning of Art. 12 of the
Constitution9, nevertheless, it would not answer the description of government as it is understood
in law and in the context of S. 80.10
This section is explicit and mandatory and admits of no implications or exceptions.11 The language
of this section is imperative and absolutely debars a court from entertaining a suit instituted without
compliance with its provisions. If the provisions of the section are not complied with, the plaint
must be rejected under O. 7, r. 11(d)12.
Section 80 is mandatory and a suit filed before the expiry of the period of two months, which does
not necessarily mean 60 days but has to be calculated month-wise13, after the serving of notice as
per S. 80(1) is not maintainable.14

ESSENTIALS
A notice under S. 80 must contain
1. name, description and place of residence of the person giving notice;
2. a statement of the cause of action; and

5
Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company, Lucknow
6
State of Maharashtra v. Chander Kant, (1977) 1 SCC 257
7
Nirmal Chand v. Union of India, AIR 1966 SC 1068
8
Kanhayalal Osawl v. Govt. of India, AIR 1974 Guj 37
9
Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331.
10
Minakshi Patra v. Secretary, Irrigation and Power, Court of Orissa, AIR 1999 Ori 137.
11
Ramabrahma v. Dominion of India AIR 1958 Cal 183.
12
Jagadish Chandra v. Debendraprasad AIR 1931 Cal 503
13
Laxmi Narain v. State AIR 1977 Pat 73.
14
Bihari Chowdhry v. State of Bihar AIR 1984 SC 1043

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 relief claimed by him.
In considering whether the essential requirements of the section have been complied with, the
Court should ask the following questions:15
1. Whether the name, description and residence of the plaintiff are given so as to enable the
authorities to identify the person giving the notice?
2. Whether the cause of action and the relief which the plaintiff claims have been set out with
sufficient particulars?
Whether such notice in writing has been delivered to or left at the office of the appropriate
authority mentioned in the section? , and
1. Whether the suit has been instituted after the expiration of two months after notice has been
served, and the plaint contains a statement that such a notice has been so delivered or left?
NOTICE WHETHER EMPTY FORMALITY?
The statutory notice served in pursuance of section 80, serves the objective of providing an
opportunity to the government or a public officer to take the matter in the reconsideration and take
an appropriate decision which is in accordance with law. The notice by itself was not intended to
be an empty formality but it has become one. The administration is often unresponsive and shows
no courtesy even to intimate the aggrieved party why his claim is not accepted16.The reason behind
enactment of this section was as a measure of public policy, the purpose was the advancement of
justice and securing of good of the people by avoiding unnecessary litigation.

Krishna Iyer J. has stated We like to emphasize that Governments must be made accountable by
Parliamentary social audit for wasteful litigation expenditure inflicted on the community by
inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State
to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the
claim is being resisted. Now S. 80 has become a ritual because the administration is often
unresponsive and hardly lives up to the Parliaments expectation in continuing s. 80 in the Code
despite the Central Law Commissions recommendations for its deletion17
The law commission was in fact against the provision of issuing a notice under section 80, before
more than fifty years it has noticed that the section had inflicted hardship in cases where immediate
relief was needed and in most of cases the notice remained unanswered.

15
State of A.P. v. Gundugola Venkata, AIR 1965 SC 11.
16
Bihari Chowdhary v. State of Bihar ,(1984) 2 SCC 627
17
State Of Punjab v. M/S. Geeta Iron & Brass Works Ltd, 1978 AIR 1608

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NOTICE WHETHER MANDATORY?
The provisions in section 80 are express and explicit by themselves and make the serving of notice
mandatory by not admitting any implications or exceptions. They are imperative in nature and
must be strictly complied with. Notice whether under section 80 is the first step in the litigation.18A
court cannot entertain any suit unless the notice is duly served to the public official under section
80(1). If a section had done injustice, it is a matter which can be rectified by the legislature and
not by a court.19
A plaintiff filed a suit to stop the tax officer from selling the suit property he purchased from the
defendant, who was in arrears of income tax, it was held by the court that the central government
was a necessary party to the suit. Hence unless a notice has been served under section 80,the suit
will not be maintainable20
The section is imperative and must undoubtly be strictly construed; failure to serve a notice
complying with the requirements of the statute will entail dismissal of the suit21
Construction of Notice: As mentioned before the compliance with section 80 by serving a notice
is mandatory. But it is a procedural provision, a means by which the court impart justice. A notice
under this section must should not be construed in a pedantic manner divorced from common
sense22
Pollock has stated that We must import a little common sense into notice of this kind. A statutory
notice must be reasonably construed, keeping in mind the ultimate objective that an interpretation
should not lead to injustice .Every venial defect or error not going to the root of the matter cannot
be allowed to defeat justice or to afford an excuse to the government or a public officer to deny
just claim of an aggrieved party23
The question has to be decided by reading the whole notice in totality and in a reasonable manner.
If the notice on such a reading the court is satisfied that the information which was necessarily to
be provided to the defendants by the plaintiff was in fact provided, inconsequential defects or error
is immaterial and will not vitiate the notice. The provisions of the section are not intended to be
use as booby-traps against ignorant and illiterate persons.24

WAIVER OF NOTICE
Although, Under Section 80 of the civil procedure code mandates issuance of a notice for the
institution of notice, it is considered to be a mere procedural requirement and not a substantive

18
State of Seraikella v. Union of India 1951 SCR 474
19
Bhagchand v. Secy. Of State AIR 1927 PC 176
20
Prakash textiles v.Tax recovery Officer AIR (1983) kant 174.
21
Ghanshyam Dass v.Dominion of India 1984 3 SCC 46.
22
State of Madras v. C.P. Agencies AIR 1960 SC 1309
23
Jones v.Nicholls, (1844) 13 M & W 361:153 ER 149
24
Raghunath Das v. Union of India AIR 1969 SC 674

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need. This is because the issuance of a notice does not necessarily affect the jurisdiction of the
court in question. In the case of Dhina Singh v. Union Of India, It was held that this notice is for
the benefit of the government or the public officer, it is the prerogative of the government to choose
to waive the right25. Furthermore in the case, Commr. Of taxes v. Golak Nath, it was held by the
courts that the facts of the particular case was vital to see if the right could be waivered or not. 26
FORM OF NOTICE
No particular has been prescribed under the code. Due to the above, there is no need to give it in
any particular form to give a notice under Section 80. The mere satisfaction of all conditions
prescribed in this section is sufficient. Also, in the Amar Nath v. Union of India, it was held that
the notice must merely inform the opposite party about the nature and the basis of the claim and
relief sought.27
MODE OF SERVICE
A notice submitted under section 80 of the civil procedure code must be given to, or left at the
office of, the appropriate authority specified. This was held in the State of A.P V. Gundugola
Venkata28 . It has been specified in the code as to who the appropriate authority is under section
80. As per the section, it must be given to the secretary of the department or the collector of the
district. Under this section, personal delivery of the notice is not necessary, thus making the words
left at the office redundant. The section, however does not prohibit the personal deliver of the
notice. It further allows the notice to be sent through registered post.
TECHNICAL DEFECT IN NOTICE: SECTION 80(3)
The Code of Civil Procedure (amendment) act, 1976 gives a lot of clarity on a suit issued against
the government if there is a defect in the notice issued. The Amendment added Subsection 3 to
section 80 whereby it has been explicitly stated that no suit against the government has be
dismissed merely on the ground of a defective notice. It also adds that in such a case the name,
residence or the residence of the plaintiff is specified in the notice, allowing for the identification
of the plaintiff in the notice delivered or left at the authority or public officer and the cause of
action and the relief claimed by the plaintiff had been substantially indicated therein. This means
that if the notice contained basic details, it would be sufficient.
The above amendment to the code was made with the intention that justice is not denied to the
aggravated parties on the grounds of technical defects. Therefore, a notice under section 80 cannot
be held to be invalid and no suit can be dismissed on the grounds that there has been a certain
technical defect or error in the notice delivered or on the ground that such notice was served in an
improper way.29

25
AIR 1958 SC 274
26
AIR 1979 Gau 10
27
AIR 1963 SC 424
28
AIR 1965 SC 11
29
Section 80 of the Indian Procedure Code

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Also, the joint committee stated the following
The committee also feels that with a view to seeing that the just claims of many persons are not
defeated on technical grounds, the suit against the government or the public officer should not be
dismissed merely by reason of any technical defect or error in the notice or any irregularity in the
service of the notice if the name, description and residence of the plaintiff have been so given in
the notice as to enable the appropriate authority or public officer to identify the person serving the
notice, and the notice had been delivered or left in the appropriate authority, and the cause of action
and the relief claimed has been properly indicated in the notice.30 In copulating the period of
limitation for instituting a suit against the government or public officer, the period of notice has to
be excluded. 31

PROCEDURE: RULE 27
In the case where there is a suit filed by or against the Government, then such a plaint will have to
be signed by any authorized person appointed by the Government. It is also necessary that this
person is well versed with facts of the case. If such a person is authorized by the government, then
he shall be deemed to be a recognized agent of the Government as per the Civil procedure code. It
has also been given in the code that multiple summons may be issued to a government pleader.
There is no need for the state counsel to file a Vakalatnama. Reasonable time should be granted to
the government for filing a written statement.32 The courts, in all cases must assist the Government
to arrive at a settlement in all cases where it is a party. This is considered as one of the main duties
of the court. There are instances where the suit filed may have a substantial question of law or that
it may require the interpretation of law or the constitution. In such cases, the court will need to
send a notice to the attorney General, if the question is regarding a central law or it will need to
send a notice to the advocate general if the suit deals with a state law. This has been given in Order
27-A of the Code.

30
Report of the joint committee, gazette on India dt. 1-4-1976
31
S.15, Limitation Act, 1963. Also in Jai Chand v Union of India (1969) 3 SCC 642
32
Ghanshyam Das v. Dominion of India AIR 1984 SC 1004

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 CHAPTER-3

CONSTITUTIONAL VALIDITY OF THE PROCEDURE

Validity of provision :
Article 14 of the Constitution does not render Section 197, ultra vires as the discrimination is based
upon a rational classification. Public servants have to be protected from harassment in the
discharge of official duties, while ordinary citizens not so engaged do not require this safeguard33.
Section 197(1) does not create any arbitrary discrimination; on the other hand, it makes a
reasonable differentia: public servants not removable from their respective offices save by or with
the sanction of a State Government or the Central Government, are put in one class and the public
servants who are removable from their respective offices even without such sanction are put in
another class. The reason for this classification quite obviously is that the public servants who hold
responsible positions and who discharge important functions shall alone be afforded certain
amount of protection from the harassment resulting from vexatious prosecutions, while those who
discharge comparatively unimportant functions or hold less responsible positions would not be
accorded such protection. Such a classification can in no sense be regarded as arbitrary or
unreasonable and the section is not, therefore, inconsistent with article 14 of the Constitution34.
Need for sanction when to be considered?
In Matajog Dobey v. H.C. Bhari35, It is now authoritatively laid down by the Supreme Court that
it is not always necessary that the need for sanction under section 197 is to be considered as soon
as the complaint is lodged and on the allegations therein contained. The question may arise at any
stage of the proceedings. The complaint may not disclose that the act constituting the offence was
done or purported to be done in the discharge of official duty; but facts subsequently coming to
light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial,
may establish the necessity for sanction. Whether sanction is necessary or not may have to be
determined from stage to stage. The necessity may reveal itself in the course of the progress of the
case36.

33
AIR 1956 SC 44
34
AIR 1954 Nag 265.
35
MANU/SC/0071/1955
36
AIR 1956 SC 44.

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No form of sanction but application of mind necessary :
Under Section 197(1), no set form of sanction is necessary37. In a case under Section 6 of the
Prevention of Corruption Act, it is stated by the Supreme Court that it should be clear from the
form of the sanction that the sanctioning authority considered the evidence before it and after a
consideration of all the circumstances of the case sanctioned the prosecution, and, therefore, unless
the matter can be proved by other evidence, in the sanction itself the facts should be referred to
indicate that the sanctioning authority had applied its mind to the facts and circumstances of the
case38. As laid down by the Supreme Court, a public servant can be said to act or purport to act in
the discharge of his official duty, if his act is such as to lie within the scope of his official duty. A
judge neither acts nor purports to act as a Judge in receiving a bribe though the judgment which
he delivers may be such an act; nor does a Government Medical Officer act or purport to act as a
public servant in picking the pocket of a patient whom he is examining though the examination
itself may be such an act39. The acid test is as to whether the public servant can reasonably be
inferred to have acted by virtue of his office. What is important is the quality of the act. The
question whether an Offence was committed in the course of official duty or under colour of office
depends on the facts of each case40. The Supreme Court held, where the accused, Minister of
Electricity, Government of Kerala, is alleged to have supplied certain Units of electricity without
the consent of the Government, that the alleged criminal conspiracy has direct nexus with
discharge of his official duties and that as such sanction is required for his prosecution under
Section 197 Cr.P.C41
The disciplinary proceedings against government servants are taken under Service rules framed by
Government under Article 309 of Constitution. Besides, a public servant can also be prosecuted
for bribery and corruption in a criminal court. With a view to expedite such trials, the prevention
of Corruption act, 1947 (now replaced with P.C. Act) makes certain provisions. As it is in the
interest of public that corruption be eradicated, so also it is in the public interest that honest public
servants should be able to discharge their duties free from false, frivolous, and malicious
accusations. PCA thus seeks to balance both objectives. One hand, it seeks to provide for certain
safeguards against frivolous trials, other hand it seeks to provide for expeditious trial of corruption
cases. One such safeguard contained in Section 17 of PCA is that before a public servant can be
prosecuted for any specific offence42, sanction of State Government is necessary in case of a person
who is employed in connection with the affairs of a state and is not removable from his office save
by or with the sanction of the State Government Grant of sanction is only an administrative
function. Facts collected during the course of investigation have to be brought before the
sanctioning authority and the sanctioning authority has to consider the material. The grant of
sanction being an administrative act, the need to provide an opportunity of hearing to the accused,

37
27 Mad 54 (58).
38
Jaswant Singh v. The State of Punjab, AIR 1958 SC 124.
39
S.B. Saha vs. M.S. Kochar, AIR 1979 SC 1841:1979 Cr.L.J. 1367 (S.C.).
40
Baijnath vs. State of Madhya Pradesh, AIR 1966 SC 220.
41
R. Balakrishna Pillai vs. State of Kerala, AIR 1996 SC 901.
42
The offences are those punishable under s.161 or s. 164 or s.165, IPC or s. 5(2) or 5(3A) of the PCA

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does not arise43. Similar is in case of central Government. Explaining the provision Supreme Court
has said that sanction of that competent authority alone is necessary which is competent to remove
the public servant from the office which he is alleged to have misused or abused for corrupt motive.
Further the authority, entitled to grant sanction must apply its mind to the facts of the case,
evidence collected and other material before according sanction.
In Mohd. Iqbal Ahmed v. state of Andra pradesh44 SC has emphasised on two significant aspects
of sanction for prosecution. First, any case instituted without a proper sanction must fail as the
entire proceedings are rendered void ab initio. Therefore the prosecution must prove that valid
sanction has been granted by the sanctioning authority. Secondly, the sanctioning authority must
be satisfied that a case for sanction has been made out constituting the offence. the sanctioning
authority at the time of giving sanction must be aware of the facts constituting the offence and
must apply its mind. The grant of sanction is not an idle formality. It is a sacrosanct act which
affords protection to the Government Servants against frivolous prosecution.
In State of Maharastra v. R.S. Nayak45 it was held that protection under Section 197 is available
only when alleged act done by public servant is reasonably connected with discharge of his official
duty46. For the interest of democratic government and its functioning, the Governor must act in
such a case on his own.
Difference between sanction under Section 195 and sanction under Sections 96 and 197:
A court granting sanction under Section 195(1)(b) in connection with offences in a judicial
proceeding in such court, acts in its judicial capacity in granting the sanction upon legal evidence,
whereas the Government granting sanctions under Sections 196 and 197 acts purely in its executive
capacity, and the sanction need not be based on legal evidence47.

43
Superintendent of Police (CAI) v. Deepak Chowdhary. AIR 1996 SC 186
44
AIR 1979 SC677
45
AIR 1982 SC 1249
46
Centre for public interest litigation v. Union Of India, AIR 2005 SC 4413
47
27 Mad 54 (57)

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 CHAPTER-4

CONCLUSION, CRITICISM & SUGGESTION

Globalization has brought many changes, which has also positively affected our country. We
possess extraordinary resources as well as talent pools to bring changes in our system. i.e. the
system which is corrupt. Every citizen of our country now takes interest in playing vitals roles for
better governance of our country. They have become more vigilant and more protective about
themselves as well as our country. Now they ask question, they criticize, they protest against any
unhealthy activity which prevail in our system. Apart from doing these, they also make sure that
the Government is taking steps or measures in order to improve the situation of our country in
every perspective. When we speak about our government and system, a public servant plays a very
pivotal role in governing our country, because they are one most important organ of our system,
i.e. Executive. So the burden of executing every act of the system depends upon them. So
considering the importance of the role they play in our system, it is very much necessary that public
servant should inculcate the spirit of commitment within them and do excellence at the grass-roots
level, without which it will be impossible to create an environment of positive growth and
development in true sense. Although as a citizen of our country, even though I understand the
difficulty, which they undergo while performing their duty, but it should be always remembered
that, being such an important part of our system and governance, each and every public servant
should make sure that utmost quality of our administration is maintained. They should be
innovative enough to look for new opportunities. They must be sensitive enough to contribute to
creating a just and humane society. They must be in a position to accept challenges in every step
and should take every idealistic step in order to make our country India, free from fear of war,
want and exploitation and make our country a better place in this world to live in.
It is very much acceptable that they should not be treated at the equal level with that of a common
man but yes the difference between the treatments should also be very less because law should be
one for all. In order to ensure smooth functioning of any particular department, there are certain
immunities provided to the public servants and that is acceptable too but that is acceptable only up
to that level when the purpose of justice is upheld. If there is any such doubt that due to certain
privileges to the public servants, the very essence of justice is in danger, then the law makers must
reconsider the law. Although our system of judiciary is improving day by day, but I do feel that
the law related to public administration (as discussed in the project report) needs to be given special
attention because if the faith of common people in the system gets damaged even for once, then it
shall prove very harmful for the whole judicial system in our country.

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BIBLIOGRAPHY:

BOOKS:
1. PILLAI K.N. CHANDRASEKHARAN,R.V.KELKARS CRIMINAL
PROCEDURE, SIXTH EDITION,EASTERN BOOK COMPANY
Bare Acts :- 1. CRIMINAL MANUAL,PROFESSIONAL BOOK PUBLISHRS
2. CODE OF CIVIL PROCEDURE,1908

Articles:
1. Article titled Protection Only For Honest Public Servants: Apex Court
published on the website of THE HINDU
2. Article titled Permission To Prosecute published on the website of THE
INDIAN EXPRESS

WEBSITES:
1. thepracticeoflawjalan.blogspot.in
2. www.sclt.in
3. www.lawkam.org
4. www.mondaq.com
5. http://www.thehindu.com/news/national/protection-from-prosecution-only-for-honest-
public-servants-says-sc/article7119256.ece
6. http://indianexpress.com/article/opinion/columns/supreme-court-permission-to-
prosecute-public-servants-pc-act-4479185/

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