Holding

A sanction under Section 132 is not a substitute for the sanction required under Section 197; without the latter the court lacks jurisdiction to take cognizance.

Summary

The appellant, Ram Kumar, a member of the forces charged with maintaining public order, was charged with using excessive force while discharging his duty. The trial court took cognizance of the offence without obtaining the prior sanction required under Section 197 of the Criminal Procedure Code. The Punjab & Haryana High Court held that the sanction granted to the State Government under Section 132, which authorises prosecution, was sufficient and that a separate sanction under Section 197 was unnecessary. On appeal, this Court examined the two safeguards provided by Sections 132 and 197 and observed that they serve distinct purposes: the former authorises the complainant to institute proceedings, while the latter confers jurisdiction on the court to take cognizance. Consequently, the Court held that a sanction under Section 132 cannot substitute for the sanction required under Section 197, and the trial court lacked jurisdiction. The appeal was allowed, the High Court’s order set aside, and the proceedings against the appellant were quashed, though the order does not amount to an acquittal on merits.

Issues considered

Whether a sanction to prosecute under Section 132 of the Criminal Procedure Code can substitute for the sanction required under Section 197 to enable a court to take cognizance of an offence committed by a member of the armed forces or a force charged with maintaining public order.

Legislation cited

Code of Criminal Procedure, 1973s. 132(a), s. 197(2), s. 197(3), s. 197(4)

Subjects

sanctioncognizanceSection 132Section 197Criminal Procedure Codearmed forcespublic orderjurisdictionexcessive forceprosecution

Judgment

RAM KUMAR A
v.
STATE OF HARYANA

JANUARY 13, 1987
B
[M.P. THAKKAR AND B.C. RAY, JJ.]

~ 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 sur-
rogate for a sanction to take cognizance.
c
~ 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 bad, in the purported discharge of bis duties,
used force in excess of what was necessary and thereby committed an
offence. D
The High Court, in appeal by the appellant, however, took the
view that inasmuch as the State Government itself bad accorded sane-
lion 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 ofCr.P.C.
E
AllowiJlg the appeal to this Court,
f
Held: !. The proceedings against the appellant must be quashed
as laeking 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 on merits,
F
and the appellant can be proceeded against afresh. Whether or not to do
so is for the competent authority to decide. [9968-C]

2.1 Two safeguards are provided in regard to prosecution of
members of the Armed Forces or of the forces charged with the mainte-
nance of public order songht to be prosecuted for use of excessive force
in the discharge or purported discharge of their duty. The first safe- G
guard provided in s.132 Cr.P.C. is that they cannot be "proseruted"
without obtaining a sanction to prosecute from the appropriate Govern-
ment 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 Govern- H
ment. [993D-F; 994A]

99!
992 SUPREME COURT REPORTS [1987] 1 S.C.R.

2.2 A sanction under s.132 of the Cr.P.C. is no substitute for a
A sanction under s.197 of the Cr.P.C. Six significant points of difference
need to be highlighted. [994D I

I. The two sanctions are addressed to altogether different
persons. While sanction under sec. 132 is addressed to the ~
intending complainant, sanction under s. I 97 is addressed to the
B
Magistrate presiding over a Court. [994E-99SA]

2. The two sanctions serve two altogether different purposes. \.,.
While the sanction under s. 132 clothes the intending comp- !'
Iainant with authority to institute a complaint and set the
machinary of the criminal court in motion, the sanction under
C 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. [9958 I

3. The absence of sanction in each case visits different persons
D
with different consequences. Absence of the former disables
the intending complainant whereas absence of the latter dis-
ables the Court. [99SC]

4. The disability operates in two different spheres. Want of sanc-
tion under s.132 renders the complaint invalid. Want of sanc-
E tion 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 ques- ~
lions. In regard to sanction under sec. 132 Cr.P.C. the ques-
F tion 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 ques-
tion to be answered is which particular court should be em-
powered to try the case. So also in granting sanction under sec.
197 the sanctioning authority has to consider whether or not to
G exercise the powers under s.197(4) to specify "the person by
whom, the manner in which, and the offence or offences for f.
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 dues not
have to address himself to these questions and in fact has no
competence in this behalf. [99SE-99SG]
RAM KUMAR >. STATE OF HAllYANA (THAKKAR, J.I 993

6. One is an authority to an individual to 'prosecute' the alleged oft'en·
der, the other is an autMrity to 'try' the alleged offender. [995H] A

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 25 of 1987.

From the Judgment and Order dated 22. 7 .86 of the Punjab & B
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.
c
The Judgment of the Court was delivered by

THAKKAR, J. Can a sanction to PROSECUTE surrogate for a
sanction to take COGNIZANCE?
D
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 E
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 F

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 197 1 of Cr. P.C.)
A

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
c 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 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
E 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
F 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."

'-
·.i--t:·-' .:·"~ -~---~· '
RAM KUMAR v. STATE OF HARYANA [TiiAKKAR, J.l 995

under Section 197 is .addressed to the Magistrate
presiding over a Court. A

(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 D
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
y
I
the question to be answered is which particular court should
be empowered to try the case. So also in granting sanction

1 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
F

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
996 SUPREME COURT REPORTS [1987] I S.C.R.

A Therefore, a sanction under Section 132 is no substitute for a 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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