Contractual Staff In Government Offices Temporarily Becomes Government Servant; Entitled To Protection Given U/S. 197 CrPC: Bombay High Court

The Bombay High Court observed even the employee on the basis of contract in the Government office would temporarily become the Government servant an umbrella of protection given under Section 197 of the Code of Criminal Procedure would be applicable or given to all such Government employees

he Applicant, a doctor, was accused of causing death by negligence of a woman who was admitted in the hospital for the delivery of the baby.

The Bench of Justice Vibha Kankanwadi and Justice Sanjay A. Deshmukh observed, “It is not in dispute that present applicants are Government servants. They were serving with Civil Hospital i.e. Government Hospital. Even the employee on the basis of contract in the Government office would then temporarily become the Government servant an umbrella of protection given under Section 197 of the Code of Criminal Procedure would be applicable or given to all such Government employees…Therefore, when the act was part of duty or in the discharge of duty, then certainly the previous sanction under Section 197 of the Code of Criminal Procedure was mandatory.”

Advocate S.S. Shinde represented the Applicant, while Advocates S.A. Gaikwad and M.B. Sandanshiv represented the Respondents.

Case Brief

An Application was filed for quashing of FIR for the offence punishable under Section 304-A read with Section 34 of the Indian Penal Code, 1860. The Applicant, a doctor, was accused of causing death by negligence of a woman who was admitted in the hospital for the delivery of the baby.

The Doctor contended that findings of the Committee's report, at most, may give rise to the departmental enquiry against applicants as they are the Government servants. It was also submitted that the Doctors were Government servants and, therefore, in order to prosecute them the prior sanction under Section 197 of the Code of Criminal Procedure was necessary. However, no such sanction was taken.

Court’s Observation

At the outset, the High Court noted that there was no dispute regarding the fact that there was no order of sanction to prosecute present Applicants despite being Government servants. The Court observed, “Even the employee on the basis of contract in the Government office would then temporarily become the Government servant an umbrella of protection given under Section 197 of the Code of Criminal Procedure would be applicable or given to all such Government employees…Thereby the Committees are stating that it was the part of their duty to be alert and respond. Therefore, when the act was part of duty or in the discharge of duty, then certainly the previous sanction under Section 197 of the Code of Criminal Procedure was mandatory.”

The Court highlighted that Section 187 of CrPC was made to protect the public servants from malicious prosecution, otherwise it will not be possible for a public servant to discharge his duties without fear or favour. Therefore, whether there is a previous sanction as contemplated under Section 197 of the Code of Criminal Procedure or not should be considered by any Magistrate before taking cognizance of offence. There is a statutory bar for taking cognizance in absence of such sanction. Under such circumstances, when the cognizance itself is illegally taken, it would be an abuse of process of law if present applicants are then asked to face the remaining trial.

Consequently, the Court held, “Even if we take that there was a criminal negligence; yet the previous sanction has not been obtained as contemplated under Section 197 of the Code of Criminal Procedure. This is sufficient for us to exercise our powers under Section 482 of the Code of Criminal Procedure to protect the party from abuse of process of law.”

Accordingly, the Applications were allowed.

Cause Title: Durreshhewar Ghulam Jilani V. The State of Maharashtra (Neutral Citation: 2025:BHC-AUG:23662-DB)

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