-By Devansh Pandit


Complete or partial immunity from lawsuits accorded to the members of judiciary or those exercising powers on behalf of the state, is not a novel concept. For example, no civil or criminal cases lie against the British Crown, or those exercising powers on their behalf; The United States itself accords prosecutorial immunity to judges which extends only to decisions undertaken judicially. Before venturing into the parallel provisions in India, it is necessary to point out the need for such protections or obstructions put in the way of the prosecution to pursue alleged offences against public servant & judges. The objective behind such prosecutorial protections is to allow these officials to work without fear, influence & coercion that might arise due to malicious prosecutions initiated by those who were punished by these sovereign authorities. The conditions for initiation of prosecution against judges & public servants are mentioned in Section 197 of the Code of Criminal Procedure (hereinafter CrPC).


Section 197(1), in its heading, deliberately distinguishes judges from public servants by virtue of the nature of duty both of these authorities practice. It states that no court shall be able to take cognizance of any offence, alleged to have been committed by a judge or public servant while acting or purporting to act in the discharge of his official duty except with the previous sanction of the Government. Here, a distinction is made wherein the Union & State Governments will give sanctions in different situations. Section 197(1)(a) allows only the Union to give such sanction, if the person is employed in the affairs of the central government & sub clause (b) allows only the state to give the same, if the person is engaged in affairs of the state. The proviso provides for situations where the proclamation of state emergency is in operation wherein even those employed in state affairs would require the sanction of the Union. However, it is important to point out that no such sanction is required if the public servant is accused of certain categories of offences as mentioned in the explanation of the section. Procedure of initiating prosecution against members of the armed forced is also mentioned within the section, which will not be dealt with in this article.


A prosecutorial sanction, in itself is a form of permission or allowance & the same should not be granted at any & every complaint against the said sovereign authorities who require a certain amount of liberty to fulfil the ends of justice. Since the prime responsibility of these authorities is to fulfil their duties without fear & coercion, it is necessary to accord them protection from prosecution that might arise maliciously from those who had to be punished in the pursuance of such duty. To meet the ends of administration, the rate at which legislative power is being delegated to the public servants is increasing. With this, there comes an increasing need to provide such authorities with a protective cover which would allow them to execute their duties. Public servants play an extremely pivotal role in the governance of the nation. There might be situations where, in the execution of their duties, citizens are required to be treated prejudicially by the authorities to meet the ends of justice. It is here, where such security cover is necessary for public servant to assure them that they would not be victim to maliciously initiated prosecutions; Thus, creating the need of prior sanction of appropriate authorities before prosecution is initiated. But it is necessary to point out that public servants also cannot practice untrammelled power to do anything to meet the ends of justice & liability must be placed when the alleged offence which is complained of is explicitly separated from the execution of their duty. Therefore, a balance needs to be struck so as to ensure that offences are not committed with impunity, while disguising themselves as an execution of duties of a public servant.

Matajog Dubey Case:

The question as to when a sanction is to be granted & the scope of Section 197 was discussed in Matajog Dubey v. H.C. Bhari. Here, in pursuance of a search-warrant issued under Section 6 of the Taxation on Income (Investigation Commission) Act, four officials forcibly broke open the entrance door of a premises & upon being confronted with the proprietors, tied one of them with a rope, causing him injuries & leading to a complaint under certain sections of the IPC. The common question which arose in these complaints was whether a sanction u/s 197 was necessary.

The Supreme Court held that in the present matter, the sanction was necessary to initiate prosecution & elaborated on the scope of section. It stated that the offence that is alleged to have been committed must have something to do, or must bear a reasonable relation with the discharge of official duty of such public servant. In other words, the connection between the act & the discharge of duty must be connected to the extent that it can be reasonably presumed that it was done by the accused in the performance of his official duty, though it might be possible that the act was excess of the needs of the situation. The act complained of, must not be any act done by the official; It must be an act which flows from the discharge of the allotted duty of the public servant. While relying on the view of Judicial Committee of The Privy Council, the learned judges derived a test as to how such nexus can be determined, stating that if the public servant, after being challenged against his act, can reasonably claim that what he did was in virtue of his office, then such act would lie within the scope of his judicial duty. The learned judges further went on to state that a public servant, may in the exercise of his duties, use more force than reasonable, or undertake an action exceeding the needs of the situation. Evidently, initiation of prosecution against such excessive act in the discharge of duty would also require a prior sanction & to hold otherwise would defeat the object of, first, allocating such duty to the public servant & second, Section 197 itself.


This article laid out the procedure & scope of initiating prosecution against judges & public servants. It can be reasonably derived that the litmus test of judging whether prosecution of an act by a servant requires a prior sanction or not is to examine the nexus as to whether the act fell within the discharge of the public servant’s duty. If both of these are distinctly separate, then no such sanction would be required. Thus, creating a balance where acts conducted within the discharge of duties are fairly protected from frivolous or malicious prosecution & those which are outside the purview of such duty, invite the initiation of prosecution.

[The author is a 3rd year law student at Symbiosis Law School, Noida]


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