Report No. 47
11.8. Dispensing with sanction for prosecution.-
The question which person should have the official responsibility for invoking the criminal process, and what degree of discretion should be given to him, and whether he should have the exclusive right to initiate a prosecution, is answered in different ways in different countries. In India, the general rule is that any person can make a complaint to the competent court1 in respect of an offence. This general rule is subject to exceptions in specified cases. For offences under the general criminal law, (i.e., the Indian Penal Code), the exceptions are mostly to be found in the Criminal Procedure Code2. For offences under special laws, the exceptions are to be found in the special laws3.
1. Section 4(1)(h) and section 190, Criminal Procedure Code.
2. Chapter 15, sections 195 to 199B, Criminal Procedure Code.
3. Section 537, Criminal Procedure Code.
11.9. In England, private prosecutions are, as a rule, permissible, though recent trend is in the direction of an emphasis on public prosecutions. On the Continent, public prosecution is the rule, and is indeed, in most cases, the only permissible mode.
11.10. In theory, thus the Indian system, so far as the general type of offences is concerned, is similar to the English pattern. In so far as the specially excluded offences are concerned, it is nearer to the Continental pattern.
11.11. We are not, at the moment, concerned with the position in general in this respect, either for offences under the Penal Code or for offences under the mass of special laws. Even as regards offences under the economic laws (with which this Report is concerned), the provisions requiring sanction of a specified authority are not intended to be disturbed. But the question which has caused us some anxiety is, should the requirement of sanction (whenever it exists) be an imperative, indispensable one, non-compliance with which should invalidate the trial?
11.12. The present position is that the absence of the required sanction (or the complaint of the specified person or failure to comply with a similar requirement), vitiates the trial whether or not a failure of justice has been occasioned thereby. We think that such defect should be treated on the same level as any other irregularity in the trial. Under the general provision in the Criminal Procedure Code1, the finding, order or sentence of a court of competent jurisdiction is not to be invalid merely on the ground of an error, omission or irregularity in the complaint, summons, charge etc. This provision should, in our view, be made applicable to the absence of a sanction for prosecution etc. We are aware that the present view is that the general provision referred to above does not apply to the absence of a sanction for prosecution etc. required by law, because the absence of a sanction takes away the very competence of the Court2. We would, however, like the position in this respect to be changed.
1. Section 537, Criminal Procedure Code.
2. (a) AIR 1955 SC 287 (292): 1955 SCR 1177.
(b) AIR 1964 SC 221.
(c) AIR 1962 Bom 263.
11.13. We, therefore, recommend that the following section should be inserted in all the acts with which this Report is concerned:-
New section to be inserted in all the Acts.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no finding, sentence or order passed by a Court shall be reversed or altered by a Court of appeal, confirmation or revision on account of the absence of, or any error, commission or irregularity in, the sanction or consent1, required for the prosecution for the offence which is the subject-matter of the inquiry, trial or other proceedings under that Code for an offence under this Act, unless, in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether the absence of, or any error, omission or irregularity in, such sanction has occasioned a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
Explanation:-Reference in this section to a sanction or consent required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority, or that the complaint shall be by a specified person or with the sanction of a specified person or any requirement of a similar nature2.
1. The words "Sanction" etc. may be suitably changed if the statutory requirement is differently worded.
2. The Explanation will not be needed in all Acts, but will be needed in Acts in which requirements of differerit types co-exist. See for example, the Income-Tax Act.