New Delhi, Feb 25 (PTI) The Supreme Court on Tuesday said prior sanction was a must to prosecute a public servant in criminal cases if they were discharging their official duties.

A bench of Justices B V Nagarathna and Satish Chandra Sharma made the observation while quashing the criminal proceedings against Suneti Toteja, an officer of the Bureau of Indian Standards (BIS) in a sexual harassment case in the Food Safety and Standards Authority of India (FSSAI).

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“It is only to be seen if the accused public servant was acting in the performance of his/her official duties, and if the answer is in the affirmative, then prior sanction for their prosecution is a condition precedent to the cognisance of the cases against them by the courts,” the bench said.

It held the judicial magistrate erred in taking cognisance of the case without obtaining prior sanction for prosecution, required under Section 197 of CrPC.

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Section 197 of the CrPC deals with the prosecution of judges and public servants and prescribes if a public servant was accused of any offence while acting in the discharge of the official duty, then no court "shall take cognisance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013".

The apex court was acting on Toteja's appeal against an order of the Allahabad High Court which refused to quash the chargesheet and the summoning order against her.

The top court's verdict held that the criminal proceedings and the 2022 summoning order were invalid due to the lack of required sanction for prosecution.

The case stemmed from an FIR filed by an associate director at FSSAI, alleging sexual harassment by a director.

The internal complaints committee (ICC) of FSSAI, constituted to investigate the allegations, found the director guilty and recommended legal action.

When no action was taken by the FSSAI, the complainant got an FIR registered in 2018 at Aliganj Police Station in Lucknow, naming the director and others.

Toteja, who was then serving as the presiding officer of the ICC at FSSAI, was not initially named in the FIR and her name surfaced later during statements by the complainant.

It was alleged that Toteja filed a counter affidavit before the Central Administrative Tribunal (CAT) without the complainant's authorisation and allegedly pressured her to withdraw the case.

Toteja claimed of acting in her official capacity as the presiding officer of the ICC without any criminal intent.

The top court said since Toteja was acting in her official capacity while filing the counter affidavit, prior sanction from her parent department, BIS, was mandatory under Section 197 of CrPC.

“This fact of appellant herein acting in her official capacity is not seriously contested by the respondents herein…….but the fact that she was acting in her official duty is sufficient to hold that a prior sanction from the department was in fact necessary before the magistrate taking cognisance against her," the top court said.

The order went on, “The magistrate therefore erred in proceeding to take cognisance against the appellant without the sanction for prosecution being received from BIS, and since BIS has eventually refused to grant sanction for the prosecution of the appellant, the prosecution against the appellant could not have been sustained."

The bench held that the high court erred in its ruling as it did not consider the absence of sanction for prosecution and eventually the sanction was denied by the competent authority with respect to the allegations against the appellant.

"The necessary sanction not having been granted has vitiated the very initiation of the criminal proceeding against the appellant,” it held.

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