Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
PETITIONER:
RAM KUMAR
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT13/01/1987
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
RAY, B.C. (J)
CITATION:
1987 AIR 735 1987 SCR (1) 991
1987 SCC (1) 476 JT 1987 157
1987 SCALE (1)58
ACT:
Criminal Procedure Code, 1973: Sections 132(a) &
197(2)-Armed Forces/Forces charged with maintenance of
public order-Prosecution of--Safeguards--Whether a sanction
to prosecute can surrogate for a sanction to take cogni-
zance.
HEADNOTE:
The Trial Court, without any previous sanction of the
State Government under s.197 Cr.P.C. took cognizance in
respect of a charge, that the appellant had, in the purport-
ed discharge of his duties, used force in excess of what was
necessary and thereby committed an offence.
The High Court, in appeal by the appellant, however,
took the view that inasmuch as the State Government itself
had accorded sanction to ’prosecute’ the appellant in exer-
cise of powers under s.132 of the Cr.P.C. there was no need
for sanction under s.197 of Cr. P.C.
Allowing the appeal to this Court,
Held: 1. The proceedings against the appellant must be
quashed as lacking in jurisdiction. The Court could not have
taken cognizance of the offence, for there was no jurisdic-
tion to do so in the absence of the requisite sanction. This
order will not operate as an acquittal an merits, and the
appellant can be proceeded again. it afresh. Whether or not
to do so is for the competent authority to decide. [996B-C]
2.1 Two safeguards are provided in regard to prosecution
of members of the Armed Forces or of the forces charged with
the maintenance of public order sought to be prosecuted for
use of excessive force in the discharge or purported dis-
charge of their duty. The first safeguard provided in s. 132
Cr.P.C. is that they cannot be "prosecuted" without obtain-
ing a sanction to prosecute from the appropriate Government
and the second safeguard is the one provided under s. 197
that no Court can take "Cognizance" of an offence against
such an official in the absence of the previous sanction of
the appropriate Government. [993D-F; 994A]
992
2.2 A sanction under s.132 of the Cr.P.C. is no substi-
tute for a sanction under s. 197 of the Cr.P.C. Six signifi-
cant points of difference need to be highlighted. [994D]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
1. The two sanctions are addressed to altogether different
persons. While sanction under sec. 132 is addressed to the
intending complainant, sanction under s. 197 is addressed to
the Magistrate presiding over a Court. [994E-995A]
2. The two sanctions serve two altogether different pur-
poses. While the sanction under s.132 clothes the intending
complainant with authority to institute a complaint and set
the machinary of the criminal court in motion, the sanction
under s. 197 clothes the court with the jurisdiction to take
cognizance of the offence. Without the former, the intending
complainant cannot trigger the proceedings. Without the
latter the Magistrate cannot have seisin over the matter or
act in the matter. [995B]
3. The absence of sanction in each case visits different
persons with different consequences. Absence of the former
disables the intending complainant whereas absence of the
latter disables the Court. [995C]
4. The disability operates in two different spheres. Want
of sanction under s. 132 renders the complaint invalid. Want
of sanction under s. 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.
[995D]
5. The sanctioning authority has to address itself to
different questions. In regard to sanction under sec. 132
Cr.P.C. the question to be answered is whether the intending
complainant is a suitable person to be authorized for prose-
cuting the matter in good faith. In regard to the sanction
under sec. 197 the question to he answered is which particu-
lar court should be empowered to try the case. So also in
granting sanction under sec. 197 the sanctioning authority
has to consider whether or not to exercise the powers under
s. 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 himself to these questions and in fact has no compe-
tence in this behalf. [995E-995G]
993
6. One is an authority to an individual to ’prosecute’ the
alleged offender, the other is an authority to ’try’ the
alleged offender. [995H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 25
of 1987.
From the Judgment and Order dated 22.7.86 of the Punjab
& Haryana High Court in Crl. Revision No. 615 of 1986
Prem Malhotra for the Appellant.
M.S. Gujral, C.V. Subba Rao and Ms. Kailash Mehta for
the Respondent.
The Judgment of the Court was delivered by
THAKKAR, J. Can a sanction to PROSECUTE surrogate for a
sanction to take COGNIZANCE?
Two safeguards are provided in regard to prosecution of
members of the Armed Forces or of the forces charged with
the maintenance of public order sought to be prosecuted for
use of excessive force in the discharge of purported dis-
charge of their duty:
(1) They cannot be "prosecuted" without obtaining a
sanction to prosecute from the appropriate Government
(Section 1321 of the Code of Criminal Procedure) (Cr.P.C.)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
(2) No Court can take "cognizance" of an offence against
such an official in the absence of the previous sanction of
the
1. "132. protection against prosecution for acts done under
Preceding sections-(1)No Prosecution against any person for
any act purporting to be done under Section 129, Section 139
or Section 13 1 shall be instituted in any Criminal Court
except-
(a) with the sanction of the Central Government where
such person is an officer or member of the armed forces;
(b) with the sanction of the State Government in any other
case.
........................................................"
994
appropriate Government (see Section 197 2 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 Procedure in respect of a charge that the
appellant had in the purported 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. 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
provision (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 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:-
(1) The two sanctions are addressed to altogether
different persons. While sanction under Sec. 132 is
addressed to the intending complainant, sanction
"197. Prosecution of Judges and public servants--
(1) xxxx
2. No Court shall take cognizance of any offence alleged to
have been committed by any member of the Armed 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 subsection (2) shall apply to such class
or category of the members of the Forces charged with the
maintenance of public order as may be specified therein.
Wherever they may be serving, and thereupon the provisions
of that sub-section will apply as if for the expression
"Central Government˜. occurring therein, the expression
"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
conducted, and may specify the Court before which the trial
is to be held."
995
under Section 197 is addressed to the Magistrate
presiding over a Court.
(2) The two sanctions serve two altogether different pur-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
poses. While the sanction under Section 132 clothes the
intending complainant with authority to institute a com-
plaint and set the machinary of the criminal court in mo-
tion, the sanction under Section 197 clothes the court with
the jurisdiction to take cognizance of the offence. Without
the former, the intending 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 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
complain, for want of the latter the court cannot try the
case.
(5) The sanctioning authority has to address itself to
different questions. In regard to a sanction under Sec. 132
Cr.P.C. the question to be answered is whether the intending
complainant is a suitable person to be authorized for prose-
cuting the matter in good faith. In regard to the sanction
under Sec. 197 the question to be answered is which particu-
lar court should be empowered to try the case’. So also in
granting sanction under Sec. 197 the sanctioning authority
has to consider 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 himself to these questions and in fact has no compe-
tence 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.
996
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 sanc-
tion. The appeal must, therefore, be allowed, the order
passed by the High Court must be set aside, and the proceed-
ings 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 dis-
posed of.
1
?
997