There is an exception to the immunity provided under section 197.




Para 18.From the ratio of the judgments, what is called out is that even while discharging official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part cannot be treated as a part of his official duties and hence provisions of section 197 are not attracted. Looking to the case on hand, when the offence alleged to have been committed is tampering of records such conduct cannot but only amount to a misdemeanor not connected with or while in purported exercise of official duties. Here only the official capacity enabled the accused to carry out inspection and record statements. Further, under the cloak of such official duty or when such capacity has been used to fabricate records, it cannot be said that the act is under colour of duty. The contention of learned Senior Counsel Mr. Raju that since the offence is committed while in discharge of official duty or in purported exercise thereof is therefore rejected.

Para 19.It may be noted that for the applicants to enjoy the protective umbrella of Section 197 of Cr.P.C, they must show that the offence was committed in discharge of or in purported discharge of official duty. As seen in the judgments cited above and the discussions therein, it is clear that the question is no more res integra. It is to safe guard malicious prosecution against public officials that the said protection was extended. However, the same cannot become a shield for protecting corrupt or dishonest officials. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation, which is prima facie brought out in the present case, cannot be said to be in discharge of their official duty.

There is an exception to the immunity provided under section 197. If a public servant acts under the power of the authority but if in reality it is for his own benefit or interest, then such acts cannot be protected under the guise of immunity. Thus, in the present case, when the applicants have failed to show that how the alleged fabrication of records could in any manner have any relaxation or nexus with the discharge of their official duties, the protection under Section 197 cannot be extended to them. Moreover, in a case of sanction, it is not necessary that the question has to be decided at the threshold but can be left open to be decided by the trial court as it is the trial court which is in better position on assessment of evidence at a later stage to decide whether there is nexus of the offence and the duty that is performed.





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