IMPORTANT POINTS
Provisions of section 197 CrPC are mandatory if conditions are satisfied.
Once the discharge of duty is established then section 197 CrPC must be given liberal and wide construction so far its official nature is concerned.
Forgery of valuable security, Will etc., for purpose of cheating, and using as genuine a forged document respectively is no part of official duty. Section 197 Cr PC nit attracted.
Error in farming of and not putting appropriate questions u/s 313 is not fatal.

Judgment :

Dr. Arijit Pasayat, J.

1. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court dismissing the appeal filed by the appellant-State. The Criminal Misc. Case was filed seeking grant of leave to prefer an appeal against the judgment and order dated 19.4.2007 passed by V Additional Sessions Judge, Sitapur, whereby the accused-respondent was directed to be acquitted of the charges relatable to Sections 409 and 468 of the Indian, Penal Code, 1860 (in short `IPC). The only factor which weighed with the High Court in refusing grant of leave to appeal was that the person who granted sanction for initiation of the criminal proceedings was not the authority to do so. It is to be noted that the trial in this case was held by learned Chief Judicial Magistrate, Sitapur. The accused faced trial for alleged commission of offence punishable under Sections 409, 420, 461 and 468 IPC. The trial court held that the accused was guilty of offence punishable under Sections 409 and 468 IPC. In appeal, learned V Additional Sessions Judge, Sitapur, allowed the appeal primarily on three grounds. Firstly, it was held that the person who accorded sanction was not authorised to do so. Secondly, it was observed that in view of the provisions contained under Sections 218, 219 and 220 of the Code of Criminal Procedure, 1973 (in short Code) charges could not have been framed in respect of the transaction for more than one year and, therefore, because of the framing of wrong charges the accused was entitled to acquittal. Finally, it was observed that appropriate questions were not put while the accused was examined under Section 313 of the Code. In this context the Appellate Court referred to the question of sanction by the inappropriate authority. As noted above, the High Court referred to only the question of authority of the person granting sanction.

2. Learned counsel for the appellant submitted that no part of the alleged offence is protected under Section 197 of the Code, and the effect of Section 464 of the Code has to be seen.

3. Prior to examining whether the Courts below committed any error of law in discharging the accused it may not be out of place to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the Code reads as under:

"197(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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 –

(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

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(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government."

4. The Section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set into motion. For instance no prosecution can be initiated in a Court Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless th