Judgment

THAKKAR, J.:- Can a sanction to prosecute surrogate for a sanction to take cognizance?

2. 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 :

(1) They cannot be "prosecuted" without obtaining a sanction to prosecute from the appropriate Government (Section 132*1 of the Code of Criminal Procedure) (Cr. P.C.)

* 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 131 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..........."

(2) No Court can take "cognizance" of an offence against such an official in the absence of the previous sanction of the appropriate Government (see Section 197*2 of Cr. P.C.)

* 2. "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 Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

3. 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 an 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 S. 132 is addressed to the intending complainant, sanction 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 machinery of the criminal Court in motion, the sanction under Section 197 clothes the Court with the jur