Criminal Law




Para 1.These appeals are filed by four appellants, who were arrayed as accused persons in the complaint case No. 183/2007 filed by the respondent herein before the Court of Judicial Magistrate No. II,  Tiruchirapalli, Tamil Nadu. The complaint has been filed under Sections 120-B, 468, 420, and 500 of the Indian Penal Code (for short “the IPC”). The learned Judicial Magistrate took cognizance of the said complaint and summoned the appellants.

Para 7 It is clear from the above that primarily two questions arise for consideration namely:

  • Whether prior sanction of the competent authority to prosecute the appellants, who are admittedly public servants, is mandatory under Section 197 of the Code of Criminal Procedure?
  • Whether, on the facts of this case, the complaint filed by the respondent is motivated and afterthought, after losing the battle in civil litigation and amounts to misuse and abuse of the law?

Para 14 The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, If a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in the discharge of his official duties and, provisions of Section 197 of the Code of Criminal Procedure will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations namely the allegations pertain to fabricating the false records which cannot be treated as part of the appellant’s normal official duties.

Dr. Subramanian Swamy VS. Dr. Manmohan Singh and another

Para 5. In view of such consistent view by this court, the basic submission of the learned Attorney General to the contrary is, with respect, untenable.

Para 6. I also entirely agree with the conclusion of learned brother Singhvi, J., that the argument of the learned Attorney General that question for granting sanction for prosecution of a public servant charged with offenses under the 1988 Act arises only at the stage of cognizance is also not acceptable.

Para 7.In formulating this submission, the learned Attorney General substantially advance two contentions. The first contention is that an order granting sanction is not required to be filed along with a complaint in connection with a prosecution under Section 19 of the P.C. Act. The aforesaid submission is contrary to the settled law laid down by this Court in various judgments.  

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