RAM KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) 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:

(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:-