The shield of Section 197 CrPC cannot be used to protect corrupt officers and the provisions must be construed in a manner as to advance the cause of honesty, justice and good governance: The Supreme Court of India

Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. The indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. The aforesaid has been held by the Supreme Court of India in the case of Indra Devi v. State of Rajasthan & Anr [SLP (Crl) No. 1605 of 2018] which was decided by the single judge bench comprising Justice Sanjay Kishan Kaul on 23July 2021.

The facts of the case are as follows. It was alleged that the appellant and her husband Bhanwar Lal purchased two plots in Khasra. Out of these two plots, one plot was sold to one Megharam while another plot was sold to one Chetan Choudhary. In the plot purchased in the name of her husband, a residential house and shops are stated to have been made. Megharam is alleged to have tampered with and fabricated the agreement with the intention to defraud. This was allegedly done in collusion with the then executive officer of the Municipality, one Surender Kumar Mathur and “the concerned clerk and others”, by enlarging the dimensions of the plot which have been sold to him with the intention to grab the land and house occupied by the complainant and her husband. In pursuance of the investigation, a chargesheet was filed and charges were framed Respondent No.2 moved an application under Section 197 of the CrPC before the trial court stating that he was a public servant and what he did in respect of allotment of lease, that was executed in favour of Megharam, was done during the course of his official duty and thus he was entitled to protection under the aforementioned provision. This application was dismissed by the trial court. The trial court was of the view that had the discrepancies been brought to the knowledge of the competent officers by Respondent No.2, the disputed lease would not have been issued. The result of the failure to do so caused the forged lease to be prepared.

The court perused the facts and arguments presented along with the documentary evidence. It was hence declared by the court that ” the factum of Respondent No.2 not being named in the FIR is not of much significance as the alleged role came to light later on. However, what is of significance is the role assigned to him in the alleged infraction, i.e. conspiring with his superiors. The superior, who have dealt with the file, have been granted protection while the clerk, who did the paper work, i.e. Respondent No.2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 of the CrPC qua these two other officers. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent No.2 as was done in the case of the other two officials by the Trial Court and High Court respectively. The sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well”

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