Can an opportunity to commit a crime be used as a claim for immunity?
Government servants are protected against vexatious and frivolous prosecution against acts discharged by them in their official capacities. Before taking cognizance of an “offence” by a government servant in discharge of his official duties, the court has to ensure that sanction has been given by the appropriate authority.
++ A DRI sleuth beats up a person summoned by him.
++ A police officer rapes a woman arrested by him.
++ A commissioner takes a bribe to pass an order.
++ A minister abuses his position to cheat the treasury.
Are the above cases covered under the immunity granted to government servants from prosecution?
Section 40 of the Central Excise Act, Section 155 of the Customs Act and Section 293 of the Income Tax Act grants immunity from prosecution for any bona fide acts done under the Acts. The IPC and The Prevention of Corruption Act have similar provisions. Now does it cover rape, Bribe, and pure unadulterated third degree torture? The Supreme Court day before yesterday held that they do not.
In matters concerning important politicians like Prakash Singh Badal, LaluYadav and their respective wives and the Kerala patriarch Karunakaran, the Apex Court held that illegal activities were not covered under the immunity. And our news hungry TV channels went to town with the news. They said it was bad news for the politicians and corrupt officers. But this was always the position. The Supreme Court had only reiterated the position. Nobody can claim that taking bribe was part of discharging official duties! Or that beating up people was part of investigation. The Supreme Court had a nice way of explaining the situation when it observed,
++ Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.
++ The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
++ official status only provides an opportunity for commission of the offence.
So obviously a policeman who rapes a suspect or a revenue officer who beats up a summoned person cannot take shelter under state immunity.
To our friends in the DRI and other investigating agencies who have made it a hobby to beat up people to extract nonsensical statements, DDT has an unsolicited advice – please don’t. You have no immunity against prosecution and if a complaint is made against you in a court, you will be the accused and the State will be against you. The State will support the person who has made the complaint against you and you will have to defend your case in your individual capacity. And you will lose your job if you are found guilty. Is it worth taking such huge risks for the fun of beating up people?
Today we are carrying the three Supreme Court judgements pertaining to Badal, Lalu and Karunakaran. In tune with its traditions, TIOL is proud to bring you these Supreme Court judgements delivered just day before yesterday. We are indeed fast and the first to bring you the latest.
1. Badal
2. Lalu
3. Karunakaran