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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]

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 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.)

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  (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-

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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