The availability of protection under Section 197 of Cr.P.C shall be decided by the Trial Court, in accordance with the law: Delhi HC

It is onto the petitioner to establish before the trial court that the protection under Section 197 of the Cr.P.C is available to him and it shall be decided by the Trial Court, in accordance with the law. The judgement was given by Hon’ble Mr. Justice Subramonium Prasad on 03/02/2021, in the matter of P.K. Thirwani vs Central Bureau of Investigation [CRL.REV.P. 1021/2018].

In the present case the trial court took cognizance of the offences under Section 120B of the IPC against the petitioner. In 2018, Delhi HC passed an order with charges framed under various sections of the IPC and Prevention of Corruption Act, 1988 against the petitioner. It is that order that is under challenge in this instant revised petition.

The claim of the petitioner is that he is a public servant and the court could not have taken a cognizance against him. An observation made by the Supreme Court in  N.K. Ganguly v. CBI, (2016) [SCC 143] was taken into consideration to establish the fact that a public servant cannot be prosecuted without prior sanction if they are accused of wrongdoing while discharging their official duties.

The initial matter was about the revival of a society after a gap of 12 years which was based on forged documents including fake letters and proceedings pertaining to the society’s matters. It was registered under Delhi Co-operative Societies Act,

The advocate on the petitioner’s side contended that the petitioner did not receive any pecuniary advantage or monetary reward from the audit of the society, hence there should be no charges against him and that the allegations are untrue.

Section 2(c) of the Prevention of Corruption Act, 1988 and Section 21 of the Indian Penal Code were relied upon to conclude if the petitioner was a public servant.

The Court held that, “From the facts of the case, as presented before this court in the instant petition, it is clear that there simply isn’t enough material on record for this court to decide whether the petitioner is a public servant or whether prior sanction of the government is required to remove the petitioner from his office. This is clearly a question of fact, which is best left to the trial court.”

The judgement stated, “…there are no documents on record establish these facts and these facts are to be established only during the trial. Therefore, it is not possible to grant any relief to the petitioner at this stage. It is for the petitioner to establish these facts before the Trial Court to determine as to whether sanction under Section 197 Cr.P.C ought to have been taken by the prosecution or not.”

The petition was hence dismissed by the Delhi High Court with a pending application.

Click here to read judgement.


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