November 27, 2020

Offences Relating to Public Servants in India with Landmark Cases

Introduction: –

The Administration of the country is the subject, and the purity of the administration determines the gradation of the country among the different counties of the universe. Public servants in India ensure that all aspects of the government function smoothly. They are accountable for different procedures that assist in the investigation and court proceedings. The nation will go down in terms of its progress if public servants become dishonest, because the enemies would be within the country. The government runs, undoubtedly, through its public servants. Public servants in India ensure that all aspects of the government function smoothly. They are accountable for different procedures that assist in the investigation and court proceedings. The public servant definition is referred to in section 21 of the IPC. The 1973 Code of Criminal Procedure is a statute that provides for the authorities to follow a procedure to punish the accused charged with crimes under the Indian Penal Code, 1860. They are the ultimate officials who, while performing government functions assigned to them by acts of government, cater to public interests.

Every individual in India is equal before the law and equally protected by the law in accordance with the provisions of the Constitution of India in order to dismiss any kind of unequal treatment imposed on certain privileged persons. Public servants and judicial officers have been excluded from the mandate to prosecute crimes committed while in office. Since we all know that delayed justice is denied justice, hampering the process leads to a major disadvantage for the public and public servants. The effectiveness shown by public servants boosts the country’s progress as public servants manage the country, give justice to citizens, and protect citizens’ rights. In this way, the protection of public servants in the interests of the country is necessary. There are certain offences against public servants punishable by the Public Servants Protection Code in the IPC. The Code of Procedure provides a section specifically addressing, in its official capacity, the offences committed by these public servants. On the other hand, the incidents occur where the public servants commit the offence against the citizens and the country that are also punishable under IPC. Public authorities and the judiciary are the guardians of justice who, while following the procedures established by law, are presumed to be non- biased. In this way, both sides have been ensured that they are pure and protected so that the country can progress in an exemplary manner.[1]

Who is A Public Servant?

Public servants are defined in section 21 of the IPC as:-

· Any Commissioned Officer in the Armed Forces.

· Any judge who, individually or through the body of members, is empowered to discharge adjudicatory functions.

· The officers of the court are responsible for investigating and reporting on matters of law, for authenticating information or for providing relevant details, and for any such duty that the court has on its officials.

· All jury members, members of the panchayat, evaluators who assist the court of justice.

· Any arbitrator to whom the matter is referred by a court of law for judgment.

· Those who are empowered to put people in confinement.

· Officers who are responsible for the prevention of offences, for providing information on offences, for bringing criminals to justice.

· Officers in charge of the government are holding of property as part of their duty to conduct surveys, assessments, or investigations and to report on the government’s pecuniary interests.

· Officer with the obligation to hold, take or dispense property for the public good for assessment or levy taxes.

· The officer is responsible for amending the electoral rolls and conducting elections.

· Any person with a government task in exchange for payment, in the capacity of a public duty, or appointed to the service of authorities set up under government acts.[2]

Offences Relating to Public Servants: –

Chapter-IX of the Indian Penal Code deals with offences committed by or in connexion with public servants. There are six sections in this chapter, starting from section 166 to section 171.

This chapter deals with two types of offences, one of which may be committed by public servants alone, the other of which includes offences which, although not committed by public servants, concern public servants. Section 161 to 165A is omitted from the Code by the Prevention of Corruption Act, 1988, and is incorporated with an enhanced penalty into the Act of 1988.

The essence of the offence under section 166 is intentional disobedience by a public servant of an express direction of law with the intention of causing injury to any person. In order to cause injury to any individual, this section contemplates breaching some statutory duty. This section cannot fall under a mere breach of departmental rules or regulations that do not have the force of law.

Section 167 covers the incorrect framing or translation of a frame. The preparation or translation of a document or electronic record is within the scope of his official duty, provided that he was aware of it and that it was done with the intention or knowledge that it was likely to cause injury to any person.

Section 168 punishes those public servants who are legally obliged not to engage in commercial activities. They would not be able to devote their undivided attention to their formal work if public servants were allowed to engage in trade. Moreover, they may take unfair advantage of their official position over other traders in order to advance their trade. Trade covers every kind of trade, business, profession, occupation, calling, or industry in its broader sense. There is also a trade in the job of preparing plans and estimates. The extension of section 168 is section 169. It prohibits a public servant from buying or bidding for property that he is legally obligated not to buy.

Section 170 consists of two ingredients:-

1) A person who

(a) claims to hold a specific office as a public servant, knows that he does not hold that office, or

(b) Falsely identifies any other person who holds that office.

2) A person of such presumed nature shall perform or attempt to perform an act under the colour of such an office.

Pretending to hold an office:- Mere personality to hold office is not an offence, but it is an offence to do or try to do some act under the colour of the office that he pretends to hold. It is important that the accused knew that he did not hold the office he pretended to hold.

Any Act:- In his assumed character ‘under colour’ of his office, the offender must be shown to have attempted to do or to have done some act.mit is an immaterial consideration to ask whether or not the offender made any more out of his activities while posing as a public servant.

Under section 171, it is punishable merely to wear a garb or carry any token similar to any garb or token used by that class of public servants with the intention of posing as such a public servant. The accused must wear it if it is garb and not just carry it, and if it is a token, he must display it and not just keep it in his pocket. There is no need for some act to be done or attempted to be done in the supposed garb.[3]

Malicious Prosecution:-

In the circumstances of non-compliance of these officials according to the demands of individuals, the offence of malicious prosecution is a common occurrence against public servants and judges. The refusal by these officials to bias individuals on accounts of social, economic, or political status calls for false charges by individuals as a means of threatening them with participation in practices that are contrary to the majority population.

Malicious prosecution is the deliberate initiation of false charges against someone with the intention of dishonoring the individual and subjecting them to court proceedings for a crime they have never committed. The procedure established by law with the intent of malice is improper use of judicial machinery for personal vengeance and abuse.While deciding on numerous matters relating to the Prevention of Corruption Act, the Supreme Court held that a public servant could not claim the protection of punishment against prosecution. It was noted that protection in corruption cases has turned into a matter of delayed prosecution. In this case, the fine distinction between the maliciously framed honest public servant and a corrupt official sanctioned protection under the section was made. It is up to the facts of the case and the evidence available to arrive at a conclusion as to the extent of the protection granted to these officials during the discharge of official duties. The question of punishment may be raised at any time during the proceedings, and it is necessary to determine the applicability of the sanctions from stage to stage.[4]

Landmark Cases:-

In K. Satwant Singh v. State of Punjab (1959),[5] The Apex Court held that the scope of section 197 of the 1973 Code of Criminal Procedure should be observed in the presence of certain offences which, by their very nature, cannot be identified as having been committed by public servants in the course of the performance of their official duties. Under section 161 of the Indian Penal Code, 1860, an offence of acceptance of bribe is one where it cannot be said with certainty that the offence was committed, similar to the offence of cheating or abetment. There should be a link between the offence committed and the discharge of duties, with cheating or encouragement to cheating not linked to any public servant’s official duty. Only within the scope of section 197 is the offence committed during the performance of duties.

In Matajog Dobey v. H.C. Bhari (1955),[6] it was a case of the appellant claiming that the official of the Income Tax Department forcibly broke into the residence and searched all the drawers in the house while conducting an investigation or research. The appellant claimed that the officials were tied up and beaten, and the

magistrate issued a prima facie case proceeding. The court noted that public servants have to be protected from harassment in relation to prosecution for an offence while discharging official duties, and ordinary citizens do not need such protection. It was also decided that there should be a reasonable link between the discharge of duty and the act for which he is charged with no pretentious claims.

In Baijnath And Ors v. State of MP (2016),[7] The Supreme Court noted that, under section 197(1) of the Code of Criminal Procedure, 1973, all offences committed by public servants do not require penalties for prosecution. Any act performed while engaged in official duties and that could be claimed by virtue of its office would regard punishment as a necessary component. The quality of the act, provided that the protection falls within the scope of the official duties, is extended to the officials referred to in the section. Where the nature of the offence is unrelated or unrelated to the public servant’s official duties, the protection provided for in the section shall not arise.

In R.S. Nayak v. A.R. Antulay (1984),[8] in the case of a penalty clause pursuant to section 197 of the Code of Criminal Procedure, 1973, the Apex Court held that only the competent authority had the right to remove public servants in cases of misuse or misrepresentation of office, since they had the necessary idea as to in what sense and to what extent public servants abuse the office. Before any uniformed action, the authority responsible for issuing punishment must take the evidence and facts of the case. To disregard these officials, sanction protects public servants from mistreatment at the hands of malicious and malign prosecution and therefore requires strict compliance with the provisions of the authorities concerned for the issuance of penalties. It is advisable to grant competent authorities the power to implement the sanction clause. For clarity on the honesty of the prosecution claims, the authorities have the ability to analyze evidence and facts related to the case to be placed before a judge.

In R.R.Chari v. State of UP(1951),[9] the Supreme Court held that the first part of the section deals with non-removable public officials serving under an offence while discharging official duties, and that no court is aware of the criminal cases committed by such public servants. It was noted that before the actual prosecution begins, the authorities must be satisfied with the prima facie case for the prosecution. Safeguarding public servants from false prosecution is the primary function of section 197(1).

In Dr. Subramanian Swamy v.Dr. Manmohan Singh and Anr. (2012)[10]

It was decided by the Supreme Court that the threats of malicious prosecution should be avoided in ways accepted by law in order for public servants to exercise their official duty in a fair manner without prejudice. However, the possibility of corruption in public offices, which forced the court to have public interest provisions, was not excluded. Article 14 of the Constitution of India, which provides for the right to equality of all citizens, is infringed by special treatment of those public servants, but constitutes an exception to that provision as a means of discriminatory protection. The procedural provisions must be etched out in such a way that honesty and justice are advanced along with good governance against aggravated corruption.

In Dhannjay Ram Sharma v. M.S. Uppadaya and Ors.,[11] “The Honorable Supreme Court observed that, before the protection of section 197 of the Code of Criminal Procedure, 1973 can be claimed by an accused person who, in the first instance, has to satisfy the Court that he is a public servant” not removable from his office except by or with the sanction of a government of the State or of the Central government “and, in the second instance, that the acts complained of are” not removable from his office except through or with the sanction of a government of the State or of the Central government.

Conclusion: –

Public servants in India ensure that all aspects of the government function smoothly. They are accountable for different procedures that assist in the investigation and court proceedings. Public authorities and the judiciary are guardians of justice who are presumed to be non-biased while following the procedures lay down by law. In their lawful authority, contempt of acts leads to disorder and chaos in the process. For smooth functioning of different parts of the judicial process, contempt of the lawful authority of public servants must be avoided.


[1] Shodhganga.inflibnet.ac.in/bitstream/(accessed on 29th September,2020)

[2] Blog.ipleaders.in/prosecution-offences-committed-judges-public-servants/ (accessed on 29th September,2020)

[3] Shodhganga.inflibnet.ac.in/bitstream/10603/190980/10/10 (accessed on 29th September,2020)

[4] Blog.ipleaders.in/prosecution-offences-committed-judges-public-servants/(accessed on 29th September,2020)

[5] 1960 AIR 266, 1960 SCR (2) 89

[6] 1956 AIR 44, 1955 SCR (2) 925

[7] [2016] INSC 797

[8] 1984 AIR 684, 1984 SCR (2) 495

[9] 1951 AIR 207, 1951 SCR 312

[10] (2012) 3 SCC 64

[11] AIR 1960 SC 745

Author: Anuhya Venkat Padma Nidadavolu (GITAM School of Law)

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