RAM KUMAR versus STATE OF HARYANA

Citation: [1987] 1 S.C.R. 991 · Decided: 13-01-1987 · Supreme Court of India · Bench: M.P. THAKKAR · Disposal: Disposed off

Judgment (excerpt)

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RAM KUMAR 
v. 
STATE OF HARYANA 
JANUARY 13, 1987 
[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. 
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. 
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. 
AllowiJlg the appeal to this Court, 
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, 
and the appellant can be proceeded against afresh. Whether or not to do 
so is for the competent authority to decide. [9968-C] 
A 
B 
c 
D 
E 
F 
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-
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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 
B 
I. The two sanctions are addressed to altogether different 
persons. While sanction under sec. 132 is addressed to the 
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intending complainant, sanction under s. I 97 is addressed to the 
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-
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Iainant with authority to institute a complaint and set the 
machinary of the criminal court in motion, the sanction under 
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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 
D 
E 
F 
G 
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 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-
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-
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lions. In regard to sanction under sec. 132 Cr.P.C. the ques-
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 
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 (THA

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