Delhi Riots: Why sloganeering is not part of the official duties of a public servant 

A Delhi court had dismissed a plea by CPM leaders Brinda Karat and KM Tiwari seeking registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma for hate speech. If there is no registration of an FIR, then on what facts would the sanctioning authority grant or withhold the sanction to prosecute? This order sans any executive sanction fails legal acumen and wisdom as sloganeering was not part of the duties of these BJP leaders, writes MOHD. KUMAIL HAIDER.

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A Delhi Court on August 26, 2020 dismissed a plea by CPM leaders Brinda Karat and KM Tiwari seeking registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma for hate speech (in Brinda Karat v. State). The complainants had sought these FIRs under various sections, including 153-A of the IPC (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc); 153-B (imputations, assertions prejudicial to national-integration) and 295-A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs).

The plea had also sought action under other sections of the IPC, including 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person), 504 (intentional insult with intent to provoke breach of the peace), 505 (statements conducing to public mischief) and 506 (punishment for criminal intimidation).

Clear evidence of sloganeering

It was stated that Thakur has chanted "Desh key gaddaro ko goli maaro salon ko (Shoot the traitors)" with reference to those taking part in protests against the Citizenship (Amendment) Act, 2019. Verma, on the other hand, gave an interview to ANI on January 28, 2020, where he allegedly made false, provocative and communal statements against the Shaheen Bagh protestors. The additional chief metropolitan magistrate dismissed the application for lack of previous sanction from the competent authority, i.e. the central government.

The objective of Sections 196 and 197 of the CrPC is to ensure prosecution only after due consideration by the appropriate authority so that frivolous prosecutions are avoided. These statutes are formulated to guard against vexatious proceedings against judges, magistrates and public servants, not removable from office except by or with the sanction of the government, and members of the armed forces without the sanction of higher authorities.

Before according sanction to prosecute for any of these offences, the centre, the state government or the district magistrate, as the case may be, can order a preliminary investigation by a police officer not below the rank of inspector. The police officer shall have powers referred to in Section 155(3).

Why was registration of FIR and probe denied?

The Supreme Court has in Anju Chaudhary v. State of Uttar Pradesh (2013) and Mona Pawar v. High Court of Judicature of Allahabad (2011) declared that mere direction for investigation passed by the magistrate in exercise of his powers under Section 156(3) of the Code does not amount to taking cognisance, but is only a pre-emptory order which does not require prior sanction. Hence, one fails to gather why allowing registration of FIR and preliminary investigation is overlooked and denied. The sanction should be based on consideration by the sanctioning authority of the basic facts which, in any matter of allegations, are carried by FIRs.

The pertinent question that arises is that if there is no registration of an FIR, then on what facts would the sanctioning authority grant or withhold the sanction to prosecute?

Under Sub-section 1 of Section 196 of the CrPC, the following offences, cannot be taken cognisance of by any court except with the prior sanction of the centre or the state.

*Offence against the State (Chapter VI, IPC)

*Offence of promoting enmity between groups (Section 153A, IPC)

*Imputations prejudicial to national integration (Section 153B)

*Outraging religious feelings (Section 295A)

*Statements conducing to public mischief (Section 505)

*Criminal conspiracy to commit such offences and abetment in India of such offences committed outside India

In Center for Public Interest Litigation v UOI, the Supreme Court stated the pre-requisites of sanction for prosecution, which is that the act or omission must have been done by a public servant in the discharge of his duty. Also, it is important to refer to State of Karnataka v Pastor P Raju, where the apex court held that there is no bar against registration of a criminal case or investigation by a police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 CrPC. Once a criminal case is registered, investigation is done and the police submits a report before a magistrate without the previous sanction of the centre, state, or DM.

Public servant vs public duty

So is every action of a public servant an act of public duty? The privilege of immunity from prosecution without sanction only extends to acts that can be shown to be in the discharge of official duty. Section 197 of the CrPC applies where the act or omission on the part of a public servant is closely and inseparably connected with the duties he has to perform and such act or omission amounts to an offence as held in Abani Ch Biswal v State of Orissa, 1988. For the applicability of Section 197, it is not enough to be merely a public servant. As the court in Bihari Lal v State, 2002 held: "It has to be further shown (i) that such a public servant is or was removable from office by or with the sanction of the Government, and (ii) that the alleged offence should have been committed by him while acting or purporting to act in discharge of his duties."

In another case, Baij Nath Gupta v State of Madhya Pradesh, 1966, it was held that sanction is necessary if the acts of a public servant against which there is a complaint are so integrally connected with the duties attached to the office as to be inseparable from them. But if there is no connection, no sanction is necessary.

There are three facets to the protection given by Section 197 to acts by public officers.

*Where the act complained against reflects the official character of the person doing it

*Where the official character or status of the accused gives him an opportunity of doing the act

*Where the offence is committed at a time when the accused was engaged in his official duty, as provided by the bench in SB Saha v MS Kochar.

The guiding principles for sanctions

There are certain guiding principles regarding the need of sanctions that emerge from Devinder Singh v State of Punjab through CBI.  These are as follows:

*Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability. However, authority cannot be camouflaged to commit a crime.

*Once an act or omission has been found to be committed by a public servant in discharging his duty, it must be given liberal and wide construction so far as its official nature is concerned. A public servant is not entitled to indulge in criminal activities. To that extent, Section 197 CrPC has to be construed narrowly and in a restricted manner.

*In case the assault is intrinsically connected to the performance of official duties, the sanction would be necessary under Section 197 CrPC, but such relation to duty should not be a fanciful claim. The offence must be directly and reasonably connected with the official duty to require sanction. *The question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of an accusation.

*Whether sanction is necessary may have to be determined from stage to stage and material brought on record depending upon the facts of each case. The question of sanction can be considered at any stage of the proceedings and it would be open to the accused to place material during the course of the trial for showing what his duty was.

Not every action can be regarded as a public one and thus, sanctions are not sought when a complaint is related to actions that are not public duties. Even while discharging official duties, a public servant is not supposed to enter into a criminal conspiracy or indulge in criminal misconduct. Therefore, provisions of Section 197 will not be attracted as was held in Rajib Ranjan v R Vijaykumar (2015).

The Supreme Court in Paul Varghese v State of Kerala had distinguished between the two statutory provisions and the exercise of invocation thereupon. The Court held that Section 19(3)(c) of the Prevention of Corruption Act, 1988 reduces the rigour of the prohibition under Section 19(1) by providing that in cases of public servants under the Act, the sanction is automatic. Sanction under Section 197 CrPC depends on facts. Section 19 of the Prevention of Corruption Act and Section 197 operate in different fields.

In view of the facts of the matter and the expounded judicial adjudication, it can well be stated that the order by the additional chief metropolitan magistrate denying FIR registrations against Anurag Thakur and Parvesh Verma sans any executive sanction fail legal acumen and wisdom as sloganeering was not part of their duties.

(Mohd. Kumail Haider is a law student at the Faculty of Law, Aligarh Muslim University.)