Ram
Kumar Vs. State of Haryana [1987] INSC 10 (13 January 1987)
Thakkar,
M.P. (J) 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 cognizance.
HEAD NOTE:
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
purported 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 exercise 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 jurisdiction 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
discharge of their duty. The first safeguard provided in s. 132 Cr.P.C. is that
they cannot be "prosecuted" without obtaining 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 substitute for a sanction under s.
197 of the Cr.P.C. Six significant points of difference need to be highlighted.
[994D]
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 purposes. 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
complain, 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 prosecuting the
matter in good faith. In regard to the sanction under sec. 197 the question to
he 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 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 competence 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]
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 discharge 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.) (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 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 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 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 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 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.
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 sanction. The appeal must,
therefore, be allowed, the order passed by the High Court must be set aside,
and the proceedings 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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