# RAM KUMAR v. STATE OF HARYANA

- **Citation:** [1987] 1 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 1987-01-13
- **Case number:** Criminal Appeal No. 25 of 1987
- **Bench:** M.P. Thakkar, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-kumar-v-state-of-haryana-9584
- **Pages:** 6

## Headnote

Criminal Procedure Code, 1973: Sections 132(a) & 197(2)-
Armed Forces/Forces charged with maintenance of public orderProsecution of-Safeguards-Whether a sanction to prosecute can surrogate 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 sanelion 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 maintenance of public order songht to be prosecuted for use of excessive force
in the discharge or purported discharge of their duty. The first safeG
guard provided in s.132 Cr.P.C. is that they cannot be "proseruted"
without obtaining 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 GovernH
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
~
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-
!'
Iainant with authority to institute a complaint and set the
machinary of the criminal court in motion, the sanction under
C
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 disables the Court. [99SC]
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 complain, for want
of the latter the court cannot try the case. [995D]
5. The sanctioning authority has to address itself to different ques-
~
lions. In regard to sanction under sec. 132 Cr.P.C. the question 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 question to be answered is which particular 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 s.197(4) to specify "the person by
whom, the manner in which, and the offence or offences for
f.
which" the concerned publ

## Text

~
~
.-
f
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 orderProsecution of-Safeguards-Whether a sanction to prosecute can surrogate 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 sanelion 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 maintenance of public order songht to be prosecuted for use of excessive force
in the discharge or purported discharge of their duty. The first safeG
guard provided in s.132 Cr.P.C. is that they cannot be "proseruted"
without obtaining 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 GovernH
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
~
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-
!'
Iainant with authority to institute a complaint and set the
machinary of the criminal court in motion, the sanction under
C
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 disables the Court. [99SC]
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 complain, for want
of the latter the court cannot try the case. [995D]
5. The sanctioning authority has to address itself to different ques-
~
lions. In regard to sanction under sec. 132 Cr.P.C. the question 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 question to be answered is which particular 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 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 (THAKKAR, J.I
993
6. One is an authority to an individual to 'prosecute' the alleged oft'en·
der, the other is an autMrity to 'try' the alleged offender. [995H] A
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 25 of 1987.
From the Judgment and Order dated 22. 7 .86 of the Punjab &
B
Haryana High Court in Crl. Revision No. 615 of 1986
Prem Malhotra for the Appellant.
M.S. Gujral, C.V. 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
J.-
force in the dfscharge of purported discharge of their duty:
( 1) They cannot be "prosecuted" without obtaining a sanction to
prosecute from the appropriate Government (Section 132 Iof
the Code of Criminal Procedure) (Cr.P.C.)
(2) No Court can take "cognizance" of an offence against such
an official in the absence of the previous sanction of the
l. "132. Protection against prosecution for acts done under preceding sections-{ 1) No
Prosecution against any person for any act purporting to be done under Sec·
c
D
E
F
tion 129, Section 139 or Section 131 shall be instituted in any Criminal Court G
except-
(a) with the sanction of the Central Government where such person is an
officer or member of the armed forces;
J
(b) with the sanction of the State Government in any other case.
..
H
A
994
SUPREME COURT REPORTS
[1987) 1 S.C.R.
appropriate Government (see Section 197 1of Cr. P.C.)
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
B 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.P.C. there was no need for sanction under Section 197 of Cr.P.C.
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
D 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
E
F
significant points of difference need to be highlighted:-
( l) The two sanctions are addressed to altogether different
persons.
While sanction
under Sec.
132
is
addressed
to
the
intending
complainant,
sanction
2. "197. Prosecution of Jud~es and public servants-
(1) x xxx
2. No Court shall take cognizance of any offence alleged to have been committed by
any member of the Anned 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 categ_ory of the members of the Forces
charged with the maintenance of public order as may be specified therein. WherG
ever 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 a Judge, Magistrate or public servant is to be
H
conducted, and may specify the Court before which the trial is to be held."
'-
·.i--t:·-' .:·"~ -~---~· '
-
y
I 1
RAM KUMAR v. STATE OF HARYANA [TiiAKKAR, J.l
995
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
A
the machinary of the criminal court in motion, the sanction
under Section 197 clothes the court with the jurisdiction to B
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 c
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.
D
(5) The sanctioning authority has to address itself to different
questions. In regard toa sanction under Sec. 132 Cr.P.C. the
E
question 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 question to be answered is which particular court should
be empowered to try the case. So also in granting sanction
under Sec. 197 the sanctioning authority has to consider
F
whether or not to exercise the powers under Section 197(4)
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
G
himself to these questions and in fact has no competence 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.
H
996
SUPREME COURT REPORTS
[1987] I S.C.R.
A
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 sanction. The appeal must, therefore, be allowed, the order
passed by the High Court must be set aside, and the proceedings
B 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.
M.L.A.
Appeal disposed of.
(
A.
-