Ram Kumar v. State of Haryana
THAKKAR, J. Can a sanction to PROSECUTE surrogate for a
sanction to take COGNIZANCE?
Two safeguards are provided in regard to prosecution of mem
bers of the Armed Forces or of the forces charged with the mainte
nance of public order sought to be prosecuted for use of excessive
J.- force in the dfscharge of purported discharge of their duty:
( 1) They cannot be "prosecuted" without obtaining a sanction to
prosecute from the appropriate Government (Section 132 Iof
the Code of Criminal Procedure) (Cr.P.C.)
(2) No Court can take "cognizance" of an offence against such
an official in the absence of the previous sanction of the
l. "132. Protection against prosecution for acts done under preceding sections-{ 1) No
Prosecution against any person for any act purporting to be done under Sec·
tion 129, Section 139 or Section 131 shall be instituted in any Criminal Court G
except-
(a) with the sanction of the Central Government where such person is an
officer or member of the armed forces; J
(b) with the sanction of the State Government in any other case. .. H
994 SUPREME COURT REPORTS [1987) 1 S.C.R.
appropriate Government (see Section 1971 of Cr. P.C.)
In the present case the Trial Court has taken cognizance without
the previous sanction {of the State Government) as envisioned by
Section 197(2) read with Section 197(3) of the Code of Criminal Proce
dure in respect of a charge that the appellant had in the purported
B discharge of his duties used force in excess of what was necessary and
thereby committed on offence. Admittedly, there is no such previous
sanction authorising any court to take 'cognizance' of the offence
against the appellant. The High Court has, however, taken the view
that inasmuch as the State Government itself had accorded sanction to
'prosecute/ the appellant in exercise of powers under Section 132 of the
Cr.P.C. there was no need for sanction under Section 197 of Cr.P.C. c The reasoning runs along these lines: Both sanctions are ( 1) to be
given by the State Government, (2) in respect of the same person, and
{3} on the same allegations. Therefore, the sanction under one provi
sion (Sec. 132) can be treated as a sanction under the other provision
(Sec. 197(3) as well). We are afraid, the High Court has overlooked
D the scope, purpose and character of sanction under Section 132 of
Cr. P. C. on the one hand and Section 197 Cr. P. C. on the other. Six
significant points of difference need to be highlighted:-
( l) The two sanctions are addressed to altogether dif
ferent persons. While sanction under Sec. 132 is
addressed to the intending complainant, sanction
2. "197. Prosecution of Jud~es and public servants-
(1) x xxx
2. No Court shall take cognizance of any offence alleged to have been committed by
any member of the Anned Forces of the Union while acting or purporting to act in
the discharge of his official duty, except with the previous sanction of the Central
Government.
3. The State Government may, by nOtification, direct that the provisions of sub
section (2) shall apply to such class or categ_ory of the members of the Forces
charged with the maintenance of public order as may be specified therein. Wher-
G ever they may be serving, and thereupon the provisions of that sub-section will
apply as if for the expression ''Central Government'' occurring therein, the expre
ssion "State Government'' were substituted.
4. The Central Government or the State Government, as the case may be, may
determine the person by whom, the manner in which, and the offence or offences
for which the prosecution of such a Judge, Magistrate or public servant is to be
H conducted, and may specify the Court before which the trial is to be held."
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RAM KUMAR v. STATE OF HARYANA [TiiAKKAR, J.l 995
under Section 197 is .addressed to the Magistrate
presiding over a Court.
(2) The two sanctions serve two altogether different purposes.
While the sanction under Section 132 clothes the intending
complainant with authority to institute a complaint and set
the machinary of the criminal court in motion, the sanction
under Section 197 clothes the court with the jurisdiction to B
take cognizance of the offence. Without the former, the in
tending complainant cannot trigger the proceedings, without
the latter the Magistrate cannot have seisin over the matter
or act in the matter.
(3) The absence of sanction in each case visits different persons c
with different consequences. Absence of the former disables
the intending complainant whereas absence of the latter
disables the Court.
(4) The disability operates in two different spheres. Want of
sanction under Sec. 132 renders the complaint invalid. Want
of sanction under Sec. 197 vitiates all the proceedings in the
Court. For want of the former, the complainant cannot com
plain, for want of the latter the court cannot try the case.
(5) The sanctioning authority has to address itself to different
questions. In regard toa sanction under Sec. 132 Cr.P.C. the E
question to be answered is whether the intending complain-
ant is a suitable person to be authorized for prosecuting the
matter in good faith. In regard to the sanction under Sec. 197
the question to be answered is which particular court should
be empowered to try the case. So also in granting sanction
under Sec. 197 the sanctioning authority has to consider F
whether or not to exercise the powers under Section 197(4)
to specify "the person by whom, the manner in which, and
the offence or offences for which" the concerned public
servant should be tried and "the court before which the trial
is to be held". The authority seized of the matter in the
context of sanction under Sec. 132 does not have to address G
himself to these questions and in fact has no competence in
this behalf.
(6) One is an authority to an individual to 'prosecute' the alleged .
offender, the other is an authority to 'try' the alleged
offender. H
A Therefore, a sanction under Section 132 is no substitute for a
sanction under Section 197. Under the circumstances, the court could
not have taken cognizance of the offence in so far as the appellant was
concerned for there was no jurisdiction to do so in the absence of the
requisite sanction. The appeal must, therefore, be allowed, the order
passed by the High Court must be set aside, and the proceedings
B against the appellant must be quashed as lacking in jurisdiction. No
doubt, this order will not operate as an acquittal on merits and the
appellant can be proceeded against afresh. Whether or not to do so is
for the competent authority to decide. So far as the proceedings giving
rise to the present appeal are concerned, the same will stand quashed.
The appeal is disposed of accordingly.
M.L.A. Appeal disposed of.
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A.
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