Section 197 of the Criminal Procedure Code provides protection to public servants against prosecution for offences alleged to have been committed by them while acting in the discharge of their official duties, requiring the previous sanction of the Local Government.

Waller, J.

1. This is a reference by the Sessions Judge, West Godavari. One Venki preferred a complaint against the Village Magistrate of her village charging him with wrongful confinement and bribery. The Sub-Magistrate took cognizance only of the former offence and issued notice to the Village Magistrate. The latter appeared and objected that section for the prosecution was necessary under Section 197 of the Criminal Procedure Code. The Sub-Magistrate overruled the objection and the Village Magistrate took the matter up to the Sessions Judge, who, disagreeing with the Sub-Magistrate, has made a reference to this Court.

2. Sub-section (1) of Section 197 of the Criminal Procedure Code as amended by Section 50 of Act XVIII of 1923 runs as follows:

When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the section of a Local Government or some higher authority, 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 section of the Local Government.

3. It is framed in very wide terms. It requires that Judges, Magistrates and certain public servants shall not be prosecuted without the section of the competent authority for any offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duties. The object obviously is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they were acting or purporting to act as public servants. The policy of the legislature is, we conceive, to afford adequate protection to public servants, to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and, if section is granted, to confer on the Local Government, if they choose to exercise it, complete control of the prosecution. We can see nothing in these precautions to which the public at large can legitimately take exception and consider that the sub-section should be construed as widely as it has been framed. If the policy of the legislature has been to afford a reasonable protection to public servants against vexatious charges arising out of the performance by them of their official functions, it has not been conspicuously successful. By a series of judicial decisions that protection has been refined down to the vanishing point. A learned Judge of this Court, Seshagiri Aiyar, J., remarked in Sankaralinga Tevan v. Avudai Animal (1916) 35 I.C. 826 If this argument is pushed to its logical conclusion, no public servant or Judge can have the safeguard of a section, as it is not within the powers conferred upon such an officer to commit an offence. Any offence committed by such a person must prima facie be beyond his official rights and duties. I do not think that such a result is the necessary consequence of the language employed by the legislature And yet that is the effect of some of the decisions that the commission of an offence being no part of a public servants duties, no section is required for his being prosecuted for an offence alleged to have been committed by him while he was discharging or purporting to discharge those duties. The language of Section 197, Criminal Procedure Code, does not, in our opinion, afford any justification for such a construction.

4. Numerous decisions have been cited on the point. Most of them turn on the wording of the corresponding Sections in the Codes of 1882 and 1898. In this connection we endorse the criticism of Mitra in his commentary on the present Criminal Procedure Code, see page 5, 21 of the 6th edition:

These cases, though correctly decided under the old Codes, would be of no auth