Public Servants Who Cannot Be Removed Sans Sanction Of Govt Not Protected By Section 197 CrPC, Says Delhi HC

The Delhi High Court, on July 22, while observing that, "In the absence of sanction, it is true that the petitioners cannot be prosecuted under the Prevention of Corruption Act. But they cannot be excluded from prosecution for the offences under the IPC, " dismissed the application filed under Section 482 of the Cr.P.C with a plea to set aside the summoning order of the trial court.

FACTS

The petitioners, public servants, were accused in an FIR under Sections 120B/420 IPC and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 registered by the Economic Offences Wing. The charge-sheet filed against the accused persons showed the petitioners in column No.12, which explained that they were placed at column No.12 as no sanction was granted by the competent authority to prosecute them. 

In every prosecution of a public servant, sanction is a prerequisite. Section 197 casts a mandate upon the court empowered to take cognizance of an offence against a public servant to not proceed before a sanction by the authority is granted in that regard.

The grievance of the petitioners was that despite an absence of sanction, they were summoned for committing the offence under Section 120B read with Sections 420/468/471 Indian Penal Code (IPC) and the substantive offence of Section 420 IPC.

CONTENTIONS

Senior Advocate Mohit Mathur appeared on behalf of the petitioners and stated that the magistrate's order summoning the petitioners was erroneous. He contended that in an inquiry done by the petitioners as per the Office Memorandum issued by the Advisor to the Oriental Bank of Commerce, which stated that there was no evidence of gain. It was further argued that there was no criminal intent discernible in their acts, warranting criminal proceedings in the court of law. It was further submitted that the Central Vigilance Commission (CVC) through the Advisor declined grant of sanction for their prosecution.

Advocate Anil Grover appeared for CBI and contended that the sanction was essential for prosecution under the Prevention of Corruption Act, but was not required qua the petitioners under Section 197 Cr.P.C. This was, as submitted by the learned counsel for the respondent, because the petitioners were not public servants, who could be removed from office only with the sanction of the government.

DECISION

Justice Asha Menon observed that, "A perusal of the Office Memorandum dated 7th February, 2018, does show that the CVC had exonerated the petitioners, but unlike in the case of Ashoo Surendranath Tewari , this is not a full report submitted by the CVC exonerating the petitioners of the same charge in the departmental proceedings. The Court distinguished the case at hand from the judgment in Ashoo Surendranath Tewari v.The Dy.Superintendent of Police, EOW, CBI & others, (2020) 9 SCC 636 relied upon by the counsel for the petitioners wherein a full report had been submitted. Whereas, the case at hand had distinguishable facts.

On the report, the Court stated that, "What it says is, that on an analysis of the case in its entirety, it was observed that there was no evidence or proof against the petitioners that “reflects dishonesty, fraud, conspiracy or corrupt practices” because “no criminal intent was discernable” warranting prosecution. Hence sanction was declined. How and on what basis the CVC had so concluded that there was no evidence of proof is not disclosed in this Office Memorandum."

Holding that Section 197 Cr.P.C could not be applied in the case, the Court observed that, "The protection under Section 197 Cr.P.C. is available only to those public servants, who cannot be removed from their office except with the sanction of the government. The petitioners being Bank Officers do not require sanction of the government before they are removed from office. They are, therefore, not covered under Section 197 Cr.P.C."

The petition was accordingly dismissed.