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Criminal prosecution of Public Servant (includes a Judge or Magistrate or a Police office)

Posted on August 24, 2020 by ShadesOfKnife

Read the 2013 Amendment made to General Penal and Procedural laws of India. All amendments made to CrPC are here.

In this amendment, apart from inserting new sections (around women-protection) into prevailing laws, the following helpful sections were brought in.

  • Judge or Magistrate or a public servant may be prosecuted as per procedure laid out u/s sec 197 CrPC
  • New Cognizable and Bailable offence u/s 166A was inserted into IPC which can be invoke against police if they violate laws.
  • Per the new Explanation given to sec 197(1) CrPC, no sanction is required to prosecute the police. Karnataka High Court clearly explains this here.

Explanation follows…


PART-A

Section 197 CrPC provides the procedure for, When any person who is or was a Judge or Magistrate or a public servant, (who is) not removable from his office save (meaning except) by or with the sanction (meaning permission) of the Government (meaning Central or State Governments) is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

So, this mandates that Government permission is must for a Court to take cognizance of such offence by such public servant. Important aspect to note is that, there is no restriction of registering an FIR, only Cognizance needs Government permission to proceed.


PART-B

Now, the same 2013 Amendment to Criminal laws of India also inserted a new section criminalizing three acts/omissions of public servants. It is as follows.

Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) *****
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.

 

The entire procedure of how to make arrest in a cognizable case by police is in CHAPTER V – ARREST OF PERSONS. The various sections under this chapter  are few other sections are as follows:

  • Sec 41 CrPC
  • Sec 41A CrPC
  • Sec 41B CrPC
  • Sec 41D CrPC
  • Sec 46 CrPC
  • Sec 160 CrPC

Let’s focus on clauses (a) and (b) alone. I have given meanings for the words used in these two clauses here.

Clause (a) talks about the police disobeys any direction of the law (they are flouting CrPC so let’s consider only judicial decisions) which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter.

So, if a Police office disobeys any of these above CrPC provisions such as

  • a male police office arresting female accused,
  • a female arrested after sunset and before sunrise-meaning night time) or
  • no notice issued u/s 41A CrPC to the accused (even WhatsApp, email is also valid service of notice)
  • no notice or communication as mandated u/s 50 CrPC, not given to person being arrested
  • violates judgments which prohibit police in doing something in relation to forcing any person to attend before police for investigation, then such police office is liable for punishment under 166A IPC and a competent Court can take cognizance of his case, without permission from State Government.

Some Judgment (of any High Court or Supreme Court) which established a law/principle regd attendance of a person before police

 

Clause (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation means,

Some Judgments (of any High Court or Supreme Court) which established a law/principle regd investigation

  1. What is Investigation and what is not? [Rajesh Gutta Judgment]
  2. No automatic arrests in a any case which has a maximum imprisonment of 7 years (includes 498A IPC, Sec 3 of DP Act etc) [Arnesh Kumar judgment]

 

Until the 2013 Amendment to Criminal laws of India, the cases involving public servants were taken cognizance, only after/with Government permission.


PART-C

Now, the 2013 Amendment to Criminal laws of India inserted an Explanation under/after Section 197(1) and before 197(2) [this means that the explanation applies to sec 197(1) only]:

Explanation.—For the removal of doubts, it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).

Out of the many IPC offences listed in this explanation, Legislature, in it’s endless wisdom, also included Sec 166A also, so that means now, the cases involving public servants can be taken cognizance by Competent Court, without Government permission.

Conclusion

So, get FIRs registered (by making good use of Zero FIR, where appropriate) and prosecute the out-of-line public servant (includes a Judge or Magistrate or a Police office)

Check out the relevant case laws here.

Shades of Knife


Disclaimer:

Curated, Reproduced from main.sci.gov.in, judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in or any other Government websites such as Gazettes and repositories of Government Orders and Commented in accordance with Section 52(1)(q) of the Copyright Act 1957 (India) and any other applicable public disclosure laws/provisions in India and in various other countries.

I neither have control to remove copies of this document(s) that may be available on websites of High Courts or Supreme Court of India or any of the many other sites, law journal or reporters which carry the same judgment in entire form, nor I can remove references/links to this document(s) from the results of Search Engines such as Google.com.

Read more gyan here.

Though, I can remove content from my site, on request for any parties to a case, even though, I am not legally obligated to do so, except for express bar from a Competent Court.

Om Shanthi !!!


Oh, by the way, my competent Legal team delivers time-bound legal reliefs to victims of false family and matrimonial cases at

AnaghaLegalReliefs.in !!! (work-in-progress)

We are on social media too.
Just google for: Anagha Legal Reliefs

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged Criminal Law (Amendment) Act 2013 with O and R CrPC 197 - Prosecution of Judges and public servants IPC 166A - Public servant disobeying direction under law Work-In-Progress Article | Leave a comment

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