Criminal Appeal No 25 of 1987
From the Judgment and Order dated 22786 of the Punjab  Haryana High Court in Crl
Revision No 615 of 1986 Prem Malhotra for the Appellant
MS Gujral CV 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 CrPC 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 1No 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
PC  In the present case the Trial Court has taken cognizance without the previous sanction of the State Government as envisioned by Section 1972 read with Section 1973 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
PC there was no need for sanction under Section 197 of Cr
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
1973 as well
We are afraid the High Court has overlooked the scope purpose and character of sanction under Section 132 of Cr
PC on the one hand and Section 197 Cr
PC 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
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
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 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
PC 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 1974 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
MLA Appeal dis posed of


Summary:
The Trial Court without any previous sanction of the State Government under s197 Cr
PC 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 s132 of the Cr
PC there was no need for sanction under s197 of Cr
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 21 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 section 132 Cr
PC 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 section 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 22 A sanction under s132 of the Cr
PC is no substi tute for a sanction under section 197 of the Cr
PC Six signifi cant points of difference need to be highlighted
994D 1
The two sanctions are addressed to altogether different persons
While sanction under sec
132 is addressed to the intending complainant sanction under section 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 s132 clothes the intending complainant with authority to institute a complaint and set the machinary of the criminal court in motion 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
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 section 132 renders the complaint invalid
Want of sanction under section 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
PC 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 section 1974 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