Ram Kumar v. State of Haryana

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PROVISION OF ACT IN QUESTION:

The legislative framework provides two safeguards in cases related to prosecution of members of the Armed Forces engaged in maintenance of public order, charged with exercise of excessive force in the discharge or purported discharge of their duty. As per the provision, Section 132 of Code of Criminal Procedure (hereinafter CRPC) mentions no prosecution lies in absence of a “sanction to prosecute” from the appropriate government. Section 197 of CRPC puts a bar on taking cognizance of an offence by any court without a “sanction to take cognizance” from appropriate government.

FACTS OF THE CASE:

1. In the present case, the appellant was arraigned before the court for use of excessive force in discharge of his official duty. The trial court took cognizance of the offence without a prior sanction of the State Government as mentioned under Section 197(2) read with Section 197(3) of the CRPC. The High court considered the appeal that grant of ”sanction to prosecute” by the State government under Section 132 would require no other sanction under Section 197 of CRPC.
2. The rationale behind this consideration was the fact that sanction was being sought for the same person, in respect of the same allegation, to be given by the State government. This eliminates the need for multiple sanctions by the same authority. The reception of one can be treated as a grant of another.
3. The appellant filed a special appeal which was allowed since the High court failed to consider the scope and character of sanction under Section 132 of CRPC and under Section 197 of CRPC.

ISSUES ADVANCED:

1. Can a sanction to prosecute be a substitute for sanction to take cognizance.
2. Whether the two sanctions are the same or serve two altogether different purposes.

CONTENTIONS OF THE PETITIONER:

The necessity of sanction is mentioned under Section 197 of CRPC to take cognizance of the offence which cannot be substituted with sanction mentioned under Section 132 of CRPC to further the proceedings. Had both the sanctions authorised the same action, there would not have been two separate sections in place of one. Therefore, there is lack of jurisdiction on part of the court to take cognizance of offence even though sanction to prosecute has been obtained.

CONTENTIONS OF THE RESPONDENT:

The State government being a competent authority provided the sanction envisioned under Section 132 of CRPC thus fulfilling the necessity of prior permission required to advance the proceedings. Since the sanction received is to prosecute the same person, for the same alleged act, was granted by the competent authority, it is assumed that there is no requirement of another sanction.

JUDGEMENT RENDERED:

1. The two safeguards mentioned in Section 132 and Section 197 of CRPC regarding the grant of prior sanctions for prosecuting and taking cognizance of the offence respectively, should not be treated as same. A sanction under Section132 of the CRPC is no substitute for a sanction under Section 197 of the CRPC. The court highlighted six significant points of difference which need to be taken into account.
2. In absence of requisite sanction, the court could have not taken the cognizance of the offence. This renders the effective proceedings against the appellant nugatory. The order of the High court must be set aside since there is no jurisdiction of the court.
3. By any means the quashing of High court order would not amount to acquittal on merits for the appellant. He can be proceeded against afresh if the competent authority decides so. Proceedings with respect to the present appeal stands disposed of.

REASONING OF THE COURT:

The court advanced six significant points of difference to be considered:

1. Section 132 provides protection against prosecution for acts done in discharge of official duty to members of Armed forces. Section 197 bars taking cognizance of offence for acts done in performance of duty. No court shall prosecute or take cognizance of offence without prior sanction from central government. 
2. The two sanctions were assumed to be addressing one person and the same allegation, but in fact, sanction under Section 132 is addressed to the intending complainant and sanction sought under Section 197 is addressed to the Magistrate. 
3. Therefore, both sanctions serve two altogether different purposes. The first one enables institution of a complaint by the intending complainant while setting the machinery of the criminal court in motion, on the other hand, the second one authorises the court with jurisdiction to take cognizance of the offence. In default of the former, the intending complainant cannot trigger the proceedings, without the later the Magistrate cannot act in the matter. 
4. The absence of different sanctions beset different persons with different consequences. Lack of former disables the intending complainant whereas absence of the latter disables the Court.
5.  The sanctioning authority has to see to different questions regarding the suitability of the intending complainant to be authorized for prosecuting matter in good faith and whether a particular court is to be empowered to try the case. The authority has to consider whether or not to use powers under Section 197(4) to describe ”the person by whom, the manner in which and the offences for which” the concerned public official should be prosecuted along with specifying “the court before which trial is to be held”.
6. The former confers the authority to “prosecute” while the other is the authority to “try” the alleged officer. 

Therefore, by setting out this demarcation, the court quashed the erroneous order of High court with respect to having valid jurisdiction to prosecute and to take cognizance of the offence thus addressing the issue whether one sanction can be substituted for the other. 

CONCLUSION:

Sanction is a recognized principle of law and a legal requirement which empowers the Court to take cognizance. Public servants stand on a different footing because of their role in State affairs and the duties, responsibilities that ensue and thus require protection against any attack levelled on them in discharge of their official duties. However, this does not eliminate the room for trial in case of commission of an offence. The court has merely directed for cognizance to be taken afresh after obtaining valid sanction and subsequent proceedings must emanate from such cognizance.  

The distinction in applicability and interpretation of Section 132 of CRPC and Section 197 of CRPC made by the court not only clarifies the dubiety of the provisions but helps in advancing the intent with which they were framed.  Therefore, upon cumulative consideration of the facts and provisions of law, the issues advanced stand hereby disposed of.

written by Divyanshi bais intern under legal vidhiya

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