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SUPREME COURT OF INDIA

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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 suitabl