Section 197 of The Code of Criminal Procedure, 1973

Section 197 of The Code of Criminal Procedure, 1898 is in pari materia with Section 197 of The Code of Criminal Procedure, 1973. In State of Orissa v. Ganesh Chandra Jew, AIR 1955 SC 287 this Court interpreted the use of the expression ‘official duty’ to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 does not extend its protective cover to every act or omission done by a public servant while in service.

The protection given under Section 197 read with Section 170 of The Karnataka Police Act, 1963 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.

To cite an example, a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction.”

Hon’ble Justice Indira Banerjee, D. Devaraja v. Owais Sabeer Hussain, [Criminal Appeal No. 458 of 2020].Police

The alleged indulgence of officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their ‘official duty’. However, sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty” and in order to find out whether the alleged offence is committed “while acting or purporting to act in the discharge of his official duty”, the yardstick to be followed is to form a prima facie view [State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339]. The real question, therefore, is whether the act committed is directly concerned with the ‘official duty’.

Hon’ble Justice Sanjay Kishan Kaul, Indra Devi v. State of Rajasthan, [Criminal Appeal No. 593 of 2021] decided on 23.07.2021.