16 December 2024 - Legal Updates

1. Section 197 CrPC | When Can Public Servant’s Offence Be Linked to Official Duties? Supreme Court Explains Principles

The Supreme Court recently clarified the principles related to Section 197 of the Code of Criminal Procedure (Section 218 of BNSS), which requires government sanction before prosecuting public servants for acts done in the discharge of official duties. In a case involving police officials accused of fabricating evidence and creating a false case, the Court held that the protection under Section 197 CrPC does not apply. The alleged actions were not within the scope of their official duties, and therefore, no sanction was required for prosecution. The judgment, delivered by Justices JB Pardiwala and Manoj Misra, outlined key principles from previous precedents to define when an act is considered to be performed in the course of official functions.

 (i) The purpose of Section 197 CrPC is to protect responsible public servants from false or malicious criminal charges for actions taken while performing their official duties. It ensures that public servants are not prosecuted for acts done in good faith as part of their official responsibilities, thereby encouraging them to perform their duties honestly and effectively without fear of unwarranted legal action. The provision aims to support sincere officers in their work for the public interest.

(ii) The expression in Section 197 CrPC, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty," should be interpreted in a balanced way. It should be applied strictly to acts performed in the "course of duty" but once it is established that the act was done as part of official duties, a broader and more flexible interpretation should be used to recognize its "official" nature.

(iii) The Court, when determining the applicability of Section 197 CrPC, must carefully consider the facts of the case. It should ensure that public servants are protected under the section if the act is within their official duties, while also allowing appropriate action if the act is not part of their official responsibilities.

(iv) A public servant is considered to act in the discharge of their official duty only if the act is directly related to their official responsibilities. The focus should be on examining the act itself, rather than the duty, to determine if it qualifies for protection under Section 197 CrPC.

(v) One of the foremost tests which was laid down in this regard was - whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.

(vi) The test for applying Section 197 CrPC was refined to require a reasonable connection between the act and the public servant's official duties. The act must be related to the duty in such a way that the public servant can reasonably claim it was performed in the course of duty. For the section to apply, the offence must be committed by the public servant in their official capacity or under the guise of their office, with a direct or reasonable link to their duties.

(vii) If in performing his official duty, the public servant acts in excess of his duty, the excess by itself will not be a sufficient ground to deprive the public servant from protection under Section 197 CrPC if it is found that there existed a reasonable connection between the act done and the performance of his official duty.

(viii) It is the “quality” of the act that must be examined and the mere fact that an opportunity to commit an offence is furnished by the official position would not be enough to attract Section 197 CrPC.

(ix) The use of the phrases "acting" and "purporting to act" in Section 197 CrPC indicates that protection can apply even if the act was done under the guise of official duty. However, this protection should not be overextended. It should only be available when the act is reasonably connected to the discharge of official duties and not merely a cover for improper actions.

(x) There is no universal rule to determine the reasonable connection between an act and official duty. However, a reliable test is to assess whether the public servant would be held accountable for neglecting the act in question as dereliction of duty. If the answer is yes, then protection under Section 197 CrPC can be granted, as the act is connected to the public servant's official duties.

(xi) Section 197 CrPC should not be misused by public servants to cover up criminal acts under the guise of official duties. It should not protect officials who abuse their position for unlawful actions. In such cases, the acts should be regarded as outside the scope of their official duties.

(xii) If, based on the application of the aforementioned tests, it is prima facie determined that the act or omission for which the accused is charged is reasonably connected to the discharge of their official duty, the protection under Section 197 CrPC cannot be denied.

The Court clarified that the applicability of S.197 CrPC must be decided based on the peculiar facts and circumstances of each case.

Case- Om Prakash Yadav vs. Niranjan Kumar Upadhyay & Ors.

2. POCSO Act | Quashing of Serious Offence to Efface Evidence Already Recorded Cannot Be Done Even At Instance of Survivor: Kerela High Court

The Kerala High Court rejected a petition filed by the victim of a POCSO offence seeking to quash the proceedings, stating that serious offences were involved and the trial was at its final stages. The Court observed that the accused, who is the victim's father, is alleged to have committed severe offences, including aggravated penetrative sexual assault, between April 2013 and February 21, 2016. The prosecution has charged him under Sections 4 r/w 3, 6 r/w 5(n) (l), and 8 r/w 7 of the Protection of Children from Sexual Offences Act (POCSO). It is also claimed that he threatened to kill the victim if she disclosed the matter to anyone.

The victim stated that she wished to quash the proceedings because she and her mother were pressured to testify in accordance with the statements recorded by the police. She explained that she had been referred for counselling at school due to her poor academic performance and, during counselling, she shared her distressing experiences with her father after the counsellor explained the concept of 'good touch and bad touch'. Following this revelation, a complaint was filed, and a crime was registered.

The prosecution informed the Court that the evidence had been completed, and only the judgment remained to be pronounced. The prosecution also noted that, earlier, the accused had attempted to have the victim and her mother recalled as witnesses, claiming that certain important questions had not been asked. The trial court dismissed this request, and when the matter was appealed to the High Court, it was dismissed once again.

Justice A. Badharudeen noted that the victim sought to quash the proceedings with the intention of retracting the evidence she had already provided under oath in court. The Court stated that quashing the case at this stage was not permissible. It observed, "Since the evidence has already been completed, and the proceedings involve serious offences under the POCSO Act, the victim's request for quashment before the judgment is pronounced cannot be allowed." Consequently, the petition was dismissed.

Case- XXXX vs. State and Another

3. Error In Order Passed By Court In Arbitration Proceeding Can Be Corrected Under Sections 152, 153 of CPC: Delhi High Court

The Delhi High Court bench of Justice Chandra Dhari Singh has held that any error in an order passed by the court in the Arbitration Proceedings can be corrected under sections 152 and 153 of the CPC provided prejudice is not caused to the other party.

Brief Facts

The applicant filed a petition under Section 11 of the Arbitration Act seeking the appointment of an arbitrator to resolve a dispute with the respondent, which arose from a work order dated October 20, 2016, where the respondent failed to pay for services rendered. The applicant initially approached the MSME council but withdrew the application due to non-registration as an MSME when the contract was executed. The applicant invoked the arbitration clause, and the court appointed an arbitrator. During arbitration, a typographical error in the work order was discovered. The applicant then filed for rectification of the error, citing a mistake in the work order number. However, the arbitrator dismissed the application and advised the applicant to seek rectification in court. The applicant argued that correcting the error would not affect the petition or the order's nature. The respondent countered that Sections 152 and 153 of the Civil Procedure Code (CPC) were not applicable, as there was no error in the court's order, which was based on the work order initiating the arbitration.

Observations:

The court emphasized the principle that when there is a conflict between general and special law, the special law prevails, citing the legal maxim generalia specialibus non derogant. It referenced a Supreme Court judgment stating that if a special law does not address a specific issue, the general law applies. Applying this to the present case, the court noted that while Sections 152 and 153 of the Civil Procedure Code (CPC) allow courts to rectify clerical errors, the Arbitration Act does not provide a similar provision for correcting errors in court orders.

The court concluded that since the order in question was not an arbitral award and the court was not an Arbitral Tribunal, Section 33 of the Arbitration Act was not applicable. Instead, Sections 152 and 153 of the CPC would apply for rectification. It further explained that Section 152 of the CPC is used to correct accidental errors in court orders, and Section 153 gives the court the general power to amend proceedings at any stage.

Citing previous Supreme Court rulings, the court clarified that errors corrected under Section 152 should not alter the meaning or intent of the order. The court also noted that there was no confusion regarding the Work Order number, as both parties were aware of the correct number.

In conclusion, the court determined that the rectification of the Work Order number was a clerical error and would not affect the intent of the original order or prejudice the respondent. Therefore, the rectification was allowed.

Case- ADO India Pvt. Ltd. vs. ATS Housing Private Ltd.