Showing posts with label sanction. Show all posts
Showing posts with label sanction. Show all posts

22 December 2020

Subordinate to the appointing authority can not grant sanction to prosecute

Additional Collector holding charge of District Collector can not give sanction to prosecute in corruption case when employee is appointed by District Collector


    The sanction for prosecution can be granted by the authority competent to remove person. The appointment authority was Collector. PW-4 was subordinate to Collector. He was working as Additional Collector. The prosecution is relying upon the order handing over the charge to PW-4. The documents were produced on re-examination of the witness. The question which arises for consideration is that assuming that the charge was handed over to PW-4, on account of leave of District Collector, whether the charge of according sanction to prosecute the accused stands transferred to him. There is no satisfactory evidence on record to substantiate this fact. The approach of PW-4 appears to be casual. Learned counsel for the appellant has drawn my attention to some provisions of Maharashtra Civil Services Rules to bring home and contended that District Collector was appointing and removing authority.[Para No.21]

    It is submitted that, disciplinary authority cannot be inferior to the appointing authority. In the present case the collector being the appointing authority of the applicant, the additional collector did not have the power to remove him from service. Article 311 (1) of the constitution of India creates a safeguard where in no person who is a member of the Civil services of the Union or the state or an All Indian Service or a civil service or who holds a civil post under the union or State shall be removed by an authority sub ordinate to him. In the present case PW-3 at the relevant time was functioning as the Additional collector of Kolhapur. PW-3 in his examination in Chief makes a positive assertion that the Collector of the District is the Appointing and the removing Authority of the Appellant/accused. The Appointment order of the Appellant was produced on record by the said witness and the same is at (Exh.119). The PW 3 admits in his cross examination that the Post of the Additional Collector and Collector are different. The onus of proving a valid sanction is on the prosecution and hence it was incumbent upon the prosecution to bring on record any documents which would demonstrate that the power of Appointment and the removal of the Appellant vested with the Additional Collector. The prosecution has not produced any documents in this regard. The aforesaid witness was re-examined by the prosecution and the documents at Exh.124 is a charge report dated 11th April, 2006. It can be seen that the Collector holding regular charge was proceedings on leave and hence the Additional Charge of the District was being handed over to the PW-3. In the aforesaid charge report it is no where mentioned that the PW-3 had the authority to remove the Appellant or persons of equivalent rank from service and hence (Exh.124) would not come to the aid and assistance of the prosecution.
Subordinate to the appointing authority can not grant sanction to prosecute
In fact Article 311 (1) does not permit such a delegation of powers and hence assuming without admitting that there was such a delegation, then the same would nonest in the eyes of law and the same would be in conflict with the constitutional safeguard created under Article 311 (1) of the Constitution of India.[Para No.22]

19 June 2020

Sanction u/s.197 of CrPC, to prosecute a police officer, for act related to the discharge of official duty, is imperative

Law relating to saction for prosecuting police officers and its limitations


Held:
Sanction u/s.197 of CrPC, to prosecute a police officer, for act related to the discharge of official duty, is imperative;
But an offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction u/s.197 of CrPC.

68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

Sanction u/s.197 of CrPC, to prosecute a police officer, for act related to the discharge of official duty, is imperative
69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.

17 May 2020

When sanction u/s.197 of Cr.P.C. is not needed to prosecute a public servant?

If the act or omission for which the accused is charged, had prima-facie reasonable connection with discharge of his duty, then it must be held to be official attracting applicability of Section 197 of Cr.P.C.


No-sanction-under-section-197-of-Cr.P.C.-is-needed-to-prosecute-public-servant- if-offence-has-no-nexus-with -his-official-duties
In the case of Baijnath vs. State of M.P., reported in AIR 1966 S.C. 220, it was held that it is the quality of the act that is important, and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. In the case at hand, the alleged act of the accused-public servant of forging and fabricating documents, creating fake notifications to defraud the State Government and different public authorities for wrongful gain of his official duties cannot be said to have any nexus with discharge of his official duties. Hence, sanction under Section 197 of Cr.P.C. for launching the prosecution against him is held to be immaterial.
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