The general rule is that any person having knowledge of the commission of an offence may set the law in motion by filing a complaint. Are there any exceptions to this rule in regard to prosecution for an offence against the State and prosecution against judges and public servants?

Question: The general rule is that any person having knowledge of the commission of an offence may set the law in motion by filing a complaint. Are there any exceptions to this rule in regard to prosecution for an offence against the State and prosecution against judges and public servants?

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Answer

It is trite law that ordinarily, it is open to anyone, even a stranger, to set the criminal law in motion. In certain classes of offences, however, it is only the person aggrieved who can start the proceedings (Sections 195 to 199).

As a general rule, any person, having knowledge of the commission of an offence, may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. Sections 195 to 199 are exceptions to the general rule that any person, having knowledge of the commission of an offence, may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. The exceptions to this rule of which Sections 195 and 198 are examples and exceptions created by statute.

The operation of this section is only confined to certain offences under the IPC. Sections 196, 197, 198 & 199 impose restrictions on the power of the Magistrate to take cognizance of an offence under Section 190, therefore, at the stage of taking cognizance of an offence, the Magistrate should make sure whether his power of taking cognizance of the offence has or has not been taken away by any of the clauses of Sections 195-199 of the Code.

Section 197 lays down provisions for the Prosecution of Judges and public servants. This section applies where the act or omission on the part of a public servant has complained and as such closely and inseparably connected with the duties which such public servant has to perform and such act or omission amounts to an offence. For the applicability of section 197, it is not enough to be merely a public servant. It has to be further shown:

• that such a public servant is or was removable from office by or with the sanction of the Government, and
• that the alleged offence should have been committed by him while acting or purporting to act in the discharge of his duties

In order to determine whether in a particular case a public servant is entitled to the protection of Section 197 of CrPC, all that has to be considered is whether the act complained comes under the purview of being against the public servant which is alleged to constitute the offence and was committed by him while discharging his official duty that such act had a reasonable connection with his official duty. It is not material whether in discharging such official duty, the public servant acted somewhat in excess of his limits.

One safe and sure test for determining whether there was a reasonable connection between the act complained of and the official duty of the public servant was laid down in Darshan Kumar v. Sushil Kumar Malhotra, 1980 Cr LJ 154 (HP) as to be the one that would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of duty. If the answer to this question is in the affirmative, it may be said that such an act was committed by the public servant while acting in the discharge of his official duty.

There are three facets in the consideration of the protection given by Section 197 to the acts done by public officers.

• Where there is something in the nature of the act complained that attaches to it the official character of the person doing it;
• where the official character or status of the accused gave him an opportunity of doing the act and
• where the offence is committed at a time when the accused was engaged in his official duty.

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