This article is written by Yatin Gaur, a student, pursuing B.A.LL.B. from Hidayatullah National Law University. This is an exhaustive article which deals with the topic of the procedure for the prosecution of offences against the State under CrPC.
It’s not very uncommon when we hear people saying that, why is the Judiciary taking so much time to prosecute a terrorist who waged an attack and threatened national security? We even hear instances, where offenders who acted against the national Interest were set free by the court or the proceedings were delayed. We may also have witnessed cases where political leaders are arrested or prosecuted for issuing a statement against a particular religion disrupting national unity and peace, leaving us thinking what is the scope of a hate speech and what is the procedure by which such offenders are prosecuted?
But to be able to answer all these questions it is essential to understand the major offences against the state as mentioned in Indian Penal Code, 1860 (IPC), their elements, scope along with the procedural requirements laid down in Criminal Procedure Code,1973 (C.r.P.C).
All crimes are understood as an offence against the state because they essentially involve some act which results in disrupting public peace and tranquillity. But, apart from the general offences, there are some other specific offences too, which basically involve a direct action against the state, government or related to threatening of the national security by waging wars, issuing statements detrimental to national unity, or acts prejudicial to relations with foreign states etc. All these offences are collectively called as “Offences against State”.
Although there are various statutes and acts defining various kinds of offences against the state but fundamentally, all these offences fall under Part VI and various other sections of IPC. The important thing to note here is that these offences, unlike other offences, attract more serious and grave punishments. Further, this seems reasonable too, considering that every nation has the interest to preserve its integrity and honour. Therefore any such offences that are against the state, government, population or specifically detrimental to the preservation of national unity, integrity and security fall under this category.
Offences against the state(Section 121-130)
The Offences against the state are defined under Chapter VI of IPC covering Section 121 to 130 which all will be briefly discussed here.
First, we will discuss Section 121-123 of IPC. All these sections deal with the various offences related to waging of war under IPC.
Section 121- Waging war against the government of India (Section 121)
Section 121 of IPC describes the punishment in case of an offence related to waging war against the government of India.
Explanation: The elements of this section are stated below:
- There must be a waging of war or
- There must be an attempt to wage or
- The person must have abetted the waging of war
- The war must have been directed against the Government of India.
Scope: There are certain words used in this section and it is important to understand their correct meaning to bring out more clarity regarding the scope of this section
- The use of the word “Government of India’ basically refers to the Indian State, where the state obtains its power and authority by the popular will of the people of the territory.
- The other very important word used in the section is “whosoever” which signifies that the section can be applied equally in the case of a foreigner as in the case of an Indian national. For instance, Ajmal Kasab was held guilty under the offence for his involvement in Mumbai Terror attacks 2006 along with other offences too.
- The word “war” in its strictest sense does not refer to the war that happens between countries but rather means that joining, participating or organising any form of uprising or rebellion against the government of India. For instance, Operation Blue star happened in 1984.
Punishment: The punishment includes life imprisonment or death penalty which maybe even accompanied by a fine in some cases.
Determining factor; Intention behind the aggression is considered as an essential requirement to decide the applicability of this Section.
Section 121A- Conspiracy to Wage War
Section 121 A of IPC deals with the punishment in the case of –
- Conspiracy to commit an offence as contemplated under Section 121 of IPC (applicable even outside India) or
- Conspiring to intimidate the Government by use of criminal force or mere display of criminal force.
Punishment: The punishment laid down under this section involves life imprisonment or imprisonment of the term extending up to ten years including fine.
Section 122- Preparation to Wage War
Section 122 of the IPC prescribes the punishment in the case of
- When there is a collection of arms, men or ammunition
- It Must be coupled with the intention to wage a war or preparation to wage a war
- And the war waged is against the government of India.
Punishment: The punishment under this Section includes life imprisonment or term extending up to ten years including fine.
Section 123- Concealing the design to wage war
Section 123 of the IPC describes the offence of concealing the design to wage war. It lays down the punishment for the offence having the following elements:-
- There must be an existence of some design to wage war
- The accused must do any act/ omission to conceal the design, provided he/she had knowledge of the same.
- The Act in question is against the Government of India.
Punishment: The punishment for this offence includes imprisonment of a description of a term which may extend up to ten years and fine.
Section 124- Assault on High officials
Section 124 of IPC describes the punishment for the offence of assaulting high officials such as president, governor etc. The essentials under this section are as follows –
- There should be an act of assault or attempt to assault the President of India or Governor of State etc.or
- The accused was involved in the wrongful restraint or attempt to wrongful restraint the President of India, Governor of State etc.
- The accused should have refrained them from performing their due obligations and exercising their powers by means of force or intimidation.
Punishment: The punishment under this Section which may be a description of a term which may extend up to seven years along with fine.
Offences Prejudicial to relations with foreign states (Section 125-127)
Section 125-127 of IPC mainly deals with the offences that specifically have the result of prejudicing the relations of India with the foreign states.
Section 125- Waging war against other Asiatic powers
This Section 125 IPC describes the offence as having the following key essentials –
- The accused should attempt or abet to wage a war.
- The war waged should be against the government of any Asiatic Power.
- The Asiatic power must be in alliance or peace with India.
Punishment: The punishment for such offence include life imprisonment or imprisonment description of term extending up to seven years, This may even include fine.
Section 126- Depredation on territories at peace with India
Section 126 IPC deals with the offence of –
- committing any depredation or damage or
- preparing for committing any depredation
- powers that are in alliance or peace with India.
Punishment: The punishment under this Section includes Imprisonment which may extend up to seven-years and fine along with forfeiture of property used in the commission or acquired as a result.
Section 127-Receiving Property taken by war or depredation
Section 127 of IPC basically deals with the punishment for the offence of receiving any property, even after having the knowledge that the same has been taken by committing any offence mentioned under Section 125 and Section 126 respectively.
Punishment: The punishment includes imprisonment which may extend up to seven years, accompanied by fine and forfeiture of the property so obtained under this offence.
Section 128, 129 and 130 of IPC, all deals with offences related to assisting the State Prisoner. Through, the scope of Section 130 of IPC further extends to include harbouring or rescuing the prisoner as well.
Public servant allowing a prisoner to escape ( Section 128-129)
Section 128 of IPC
Section 128 of IPC is applicable in the case, when a public servant who is having custody of a State prisoner or prisoner of war, voluntarily on purpose allows such prisoner to escape.
Punishment: The punishment includes life imprisonment or imprisonment of term extending up to seven years and fine.
Section 129 of IPC
Section 129 of IPC deals with the same offence as described above, but the major and noteworthy difference i.e. when the escape of the state prisoner is a result of negligence on the part of a public servant.
Punishment: Since this offence is a result of negligence and not a deliberate intention, it attracts lesser punishment. It includes imprisonment for a term extending up to three years and fine.
Section 130- Aiding escape of rescuing or harbouring prisoner
According to Section 130 of IPC if anyone despite having the knowledge,still either does or attempts to do any act which results in the escape, rescuing or harbouring of a state prisoner or prisoner of war shall be punished under this offence. This section applies when the person does any of the following acts –
- He/She must have either aided, assisted, rescued or harboured or
- Concealed the information of escape or offered any resistance in recapturing of state prisoner or prisoner of war.
Punishment: The punishment includes life Imprisonment or description of a term extending up to 7 years along with fine.
Section 124 A- Sedition Law
Explanation: Section 124 A of IPC deals with a very important offence against the state that is Sedition. Sedition basically refers to when a person does the following acts
- It involves the use of words both written and spoken, or any sign or visible representation or otherwise
- The act must ignite a feeling of enmity, hatred, contempt or disaffection towards the government of India.
To bring out more clarity regarding the application of the law, this section includes three explanations as well. The inference that can be drawn from all these explanations, can be summarised as follows –
- This Section serves as an instrument to avoid any threat law and order situation.
- Besides, this section cannot be applied to stifle constructive criticism. For instance, against government policies or administrative issues etc.
- It is also contemplated in explanation 1 that the scope of the word dissatisfaction in the section should be comprehended and is wide enough to include feelings of disloyalty, enmity or hatred.
It may either involve life imprisonment or imprisonment extending up to three years, This may even be accompanied by fine.
The offences against the state are mentioned under Chapter VI of IPC from Article 120 to Article 130, but in order to understand the topic and have a comprehensive discussion, it is essential to understand some other sections too.
The offences which will be discussed further though are not directly against the state or the government but are detrimental to the growth and development of the nation as they have the consequence of spreading hate, enmity, fear amongst various classes of people. All of these offences can cause serious disruption and tension to public peace.
Section 153 A of IPC
Section 153 A of IPC describes the offence against the state by promoting hatred amongst different groups on the basis of religion, language, race, residence, place of birth etc. or doing any act which is detrimental to the preservation of harmony and peace.
Section 153 A Clause(i)
In simpler words, it includes any act that aims to spread disharmony and discontent among different groups on the basis of religion, language, sect, race, residence, place of birth etc. and therefore resulting in the promotion of hatred amongst different communities.
This section is comprehensive enough to include –
- words which may be oral or written, or through visible representation or any sign which promotes or intends to promote such enmity.
- acts such as organising drill, exercise or any such activity either having the consequence of training the participants to use criminal force or violence or the knowledge that the particular activity may lead to above-mentioned consequences.
Note: This Section applies in those cases essentially where it can be ascertained that the particular activity or word is grave enough to result in some violence or hatred or is likely to trigger a situation of fear or alarm amongst members of such religious, religious, racial, language or regional group or caste or community.
Punishment: The punishment prescribed under this section is that may extend up to three years, or fine or with both as the court may deem fit.
Section 153 A clause (ii)
This section further provides a higher level of punishment when a similar offence as described above is committed in place of worship etc. or in some religious assembly. It includes imprisonment which may extend up to 5 years or fine or both.
Nature of offence: The offence in both the clauses is cognizable, non-bailable, non-compoundable and triable by Magistrate of the first class.
Section 153 B
Section 153 B of IPC lays down the law regarding the Imputations or assertions that are detrimental to National Unity.
Section 153 B (1) -Imputations, assertions prejudicial to national integration
Section 153 B (1) of IPC basically includes those offences in which anyone by words both spoken or written or by means of visible representations or sign or otherwise:
Makes, asserts, publishes, advises, propagates, appeal or counsels any statement which is intended to refer that, any particular class of people because of their religious, racial, linguistic, regional, caste or communal identity –
- do not have respect or adhere to the Constitution of India or the law of the country or
- must be denied, or deprived their right of being the citizen of India.
- or any other statement which can result in creating hatred, enmity or ill will between such class of people and others.
Punishment: It includes imprisonment maximum up to three years, or imposing of fine, or both.
Section 153 B (2)- If committed in a place of public worship
Section 153 B (2) provides the punishment for the very same offence as specified in sub-section (1) but if committed in a religious place or in a religious gathering.
Punishment: Punishment under this sub-Section is further extended to include imprisonment for five years and fine.
Nature of offence: The offence in both the clauses is cognizable, non-bailable, non-compoundable and triable by Magistrate of the first class.
Section 295 A-Maliciously insulting the religions or the religious beliefs of any class
Section 295 A of IPC describes the offence when anyone maliciously or deliberately intends to infuriate religious sentiments of any class of citizen of India by insulting its religious beliefs. This may include any spoken or written words, signs or visible representation.
The Punishment under this section constitutes imprisonment which can maximum extend up to three years with fine or both.
Nature of offence: The offence is cognizable, non-bailable and triable by Magistrate of the first class.
Section 505 of IPC
Explanation: Section 505 of IPC deals with the statements contributing to public mischief.
Section 505 (1) – Statement circulated to cause mutiny or offence against the public peace
It lays down punishment for those acts that involve making, publishing or circulating any report, rumour or statement which can result in the following consequences. It must be coupled with an intention to cause or knowing that this act is likely to cause:-
- The Soldier, Airman officer or Sailor of the Army, Air force or Navy of India to participate in rebellion or persuading them to disregard or resulting in failure of their duties.
- A situation of panic and fear amongst people and incite them to commit an offence against the State or against the public peace.
- To induce one class or community to commit an offence against any other class or community,
Punishment: The punishment prescribed under this section may be extended up to three years, or with fine, or with both.
Nature of offence: The offence is non-cognizable,non-bailable, non-compoundable and triable by Magistrate of any class.
Section 505(2)- Statement circulated to cause Enmity between different classes
Similarly, Section 505(2) deals with the publishing, circulating or making of any such statement with an intention to or knowledge that the statement can create or promote hatred or enmity between the classes.
Punishment: Imprisonment with a description of a term extending maximum up to three years or fine or both.
Nature of offence: The offence is cognizable,non-bailable, non-compoundable and triable by Magistrate of any class
Section 505 (3)- If committed in a place of public worship
Further Section 505 (3) prescribes the punishment if the above-mentioned offence laid down in Sub – Section (2) is committed in any place of worship or religious ceremony.
Punishment: Imprisonment which may extend to five years and fine.
Nature of offence: The offence is cognizable, non-bailable, non-compoundable and triable by Magistrate of any class
Section 108 A – Aiding or instigation of an offence outside India
This Section, in particular, describes that whosoever, in India, when abets i.e. aids or instigates in the commission of any act committed outside India (which if committed inside India will have constituted as an offence) that person is liable to be punished.
Procedure for the prosecution of offences against the state
After having a discussion on all the above sections, now, we have enough knowledge of the background to be able to understand what will be the procedure for the prosecution of offences against the state.
The procedure for the prosecution of offences against the state is governed by Section 136 of the Code of Criminal Procedure,1973. Apart from the offences contemplated in Chapter VI of IPC, the same procedure is also applicable in all the other sections mentioned above. Further, this seems logical as well because there is a reasonable nexus between all these offences.
Section 196(1) of Cr.P.C
According to clause 1 of Section 196 of Cr.P.C, no Court has the power to take cognizance of cases mentioned under
i) Chapter VI of IPC (offences against the state)
ii) Section 153 A of IPC (promoting enmity between different classes)
iii) Section 295 A of IPC (deliberately intending to outrage religious feeling of different classes)
iv) subsection (1) of Section 505 of IPC (Statements causing public Mischief)
v) Abetment to commit any offence mentioned under the above sections
vi) Abetment described under 108 A of IPC
Until and unless there is the previous sanction from the Center and the State Government.
To bring out more clarity about the topic we shall first try to understand the meaning of each and every term used in it.
i) Cognizance – Legal definition
Cognizance in a general sense basically means “Knowledge” or “awareness”. While in the legal sense “cognizance of offences” essentially refers to the judiciary hearing of the matter. It is the first step before the commission of any trial.
Though the word “cognizance” has been nowhere defined in Cr.P.C but its been very aptly defined by the Supreme Court in a number of cases. Relying on the judgements pronounced by the court in the case of R.R Chari v. State of U.P. and Darshan Singh Ram Kishan vs the State Of Maharashtra, it can be ascertained that “cognizance of offence” may not necessarily involve some formal action but starts as soon as magistrate applies his mind to the facts of the case, to decide upon the offence for the purpose of legal proceedings.
But it is noteworthy to mention that cognizance does not start if the magistrate applies his mind not for the purpose of any legal proceeding but for taking some action such as issuing a search warrant for the investigation purpose. This point will be further elaborated while understanding the scope of the Section.
ii) Cognizance under the general offence
According to Section 190 of Cr.P.C, any magistrate of first-class, and a magistrate of second class (when authorised by the Chief Judicial Magistrate on this behalf) is empowered to take cognizance by these three methods ie. on receiving:-
i) complaint of the offence
ii) police report of the offence
iii) Information from some other offence or knowledge of the offence by own
So, the essential thing to understand here is that though Section 190 holds true for all general offences but does not apply in the offences mentioned under Section 196 of the Cr.P.C.
Now after this we will proceed towards understanding clause 1A of Section 190 of Cr.P.C
Section 196 (1A) of Cr.P.C.
As per Clause 1A of Section 196 of Cr.P.C no Court is authorised to take cognizance of offences mentioned under
i)Section 153 B of IPC (Imputations or statements detrimental to national Integration).
ii)Sub-Section (2) or Sub-Section (3) of section 505 of IPC (statements causing public mischief)
iii) or a criminal conspiracy to commit such offence,
Until and unless there is a previous sanction from the Central Government or State Government or the District Magistrate.
The scope of the section can be clearly explained by trying to find the answer to the following questions
- Whether obtaining sanction is a necessary prerequisite for cognizance of an offence under any of the offences mentioned above or there can be a departure from this condition in certain specific cases?
The answer to this question is straight and clear with no scope for any doubt or ambiguity. The use of the word “shall” makes the intention of the legislature very clear. That it is essential to obtain a previous sanction from a competent authority before the court can take cognizance of any of the offences contemplated under Section 136 of Cr.P.C. Hence, there can be no departure from this condition and Section 190 of Cr.P.C will not be applicable. Further, even if the court takes cognizance of such a case, it will be invalid in the eye of law.
In the case of State V. Satpal Singh Etc. the Court held that for taking cognizance of offences mentioned under Section 196 of Cr.P.C, the requirements of issuance of a warrant is a sine qua non-condition.In the present case, the accused was booked under Section 295(A) for deliberately hurting the religious sentiment of Sardar Gurubachan Singh by cutting his hair.
But since the sanction under Section 196 of Cr.P.C. was not accorded thus the Court sets the accused free. Therefore, the absence of sanction is considered as a basic defect with regard to the jurisdiction and also not curable under Section 465 of the Code.
- Whether under this section is there any possibility that the sanction can be issued after cognizance of the offence was already taken or is it essential that the word “previous” should be interpreted that sanction must be issued before the cognizance of the offence?
The answer to the above question lies in the fact that there can be no cognizance of offence before having a prior sanction from an appropriate authority. It basically means, that this Section does not provide any scope for obtaining the sanction subsequently after taking cognizance of the offence. It will be considered invalid in law. This can be substantiated by referring to the following case law.
In the present case, it happened that the Judicial Magistrate of first-class sought to take cognizance of the offence contemplated under Section 124 A, Section 153 A and Section 153 B without any prior sanction from the State Government as required under Section 196 of Cr.P.C. According to the facts of the case, cognizance of the offence was taken on 05.03.2016 while the sanction was accorded on 16.08.2016.
The question before the court was whether the sanction that was issued subsequently can legalise the proceedings following the date of cognizance.
The High Court pronounced that the trial court exceeded its jurisdiction by taking cognizance of the offence without any previous sanction. Since there was no compliance with Section 196 of Cr.P.C, and it cannot be subsided merely as an incidence of procedural irregularity which could be remedied retrospectively.
Another very important question that was answered by the court in the above case itself is discussed separately in the below-mentioned question.
- If there is a case in which the accused apart from the offences mentioned under Section 196 of Cr. P. C. is charged with other offences too, then will the absence of Sanction from an appropriate authority, will entitle him not to be tried for other general offences too?
In the case of Sarfaraz Sheikh vs The State Of Madhya Pradesh as mentioned above the accused was alleged to have committed offences under sections 147, 149 and 188 IPC along with the offences 124-A, 153- A and 153-B (mentioned under Section 196 of Cr. P.C.
Since the subsequent sanction was not admissible after the cognizance of offence in the Court. So, clearly the court held it was invalid to continue prosecution under Section 124- A,153-A and 153-B. But with respect to general offences, the Court stipulated that in the charge sheet submitted by the police, the facts regarding Section 147,149 and 188 of IPC were in conjunction with the offences contemplated under Section 196 of Cr.P.C, and inseparable.
Hence, the Court concluded that the accused shall be tried under the other general offences. But for that, the state has to file a supplementary charge sheet.
4.Whether registration or investigation of a case and submission of such report without obtaining the sanction will amount to a violation of Section 196 of Cr.p.c.?
The Supreme Court in a catena of cases has held that there is no bar on registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of the investigation, as mentioned under Section 173 Cr.P.C.
It basically means that when a criminal case is registered, the investigation is done and the report of the investigation is submitted by the police before a Magistrate even without any previous sanction of the Central Government or of the State Government or of the District Magistrate. It will not amount to a violation of Section 196(1-A) Cr.P.C and will not be considered invalid in the eye of the law
- Is it legally admissible if the competent authority delegates the power of granting/withdrawing sanctions to some other authority?
The answer to the above question is yes, in certain cases it is possible. In the case, State (NCT of Delhi) v. Navjot Sandhu , Administrator of Union Territory Ltd. Governor, Delhi was performing the powers and functions of the State Government by a Presidential Notification issued under Article 239 (1) of the Constitution of India. The court held the sanction accorded by Lt. Governor under Article 136 of Cr.P.C. was valid as per the Government of NCT of Delhi Act, 1991. Delegation of power in this case did not affect the legitimacy of the sanction at all.
Section 196 clause (2) provides the procedure for prosecution of conspiracy that aims to commit offence against the state. According to this section no court has the authority to take up any offence which falls under Section 120 B of the IPC until and unless the State government or District Magistrate has given the consent for the same in writing.
The Court can take cognizance under Section 120 B for the offences –
i) Criminal conspiracy to commit an offence which attracts the death penalty, life imprisonment or rigorous imprisonment for a term of two years or more
ii) Further, the court does not require consent where Section 195 of Cr.p.c.
To understand the intricacies of Section 136 (2), we will take the help of the following case law
Offences in pursuance of Conspiracy
In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, the Supreme Court held that where the accused is alleged to have committed other offences too different from the criminal conspiracy but in pursuance of such conspiracy. These other offences committed are those offences whose cognition does not require any prior sanction.
Then the Court may initiate the proceedings of such general offences even when the requirement of sanction under Section 196(2) is not fulfilled. It will be immaterial that they were committed in pursuance of the criminal conspiracy.
Further, Section 196 (2) is also not applicable in the cases of criminal conspiracy involving suppression of evidence related to the commission of an offence or a conspiracy to save the offender from legal punishment. Therefore there is no requirement of any prior sanction to initiate the proceedings for such criminal conspiracy.
Section 196(3)-Preliminary Investigation before according Sanction
Section 196(3) of Cr.P.C. basically provides the procedure that is to be adopted before the issuing of sanction by an appropriate Authority.
According to Section 196(3), before granting of sanction
- i) by the central or state government as per sub-section (1) or sub-section (1A) and
- ii) District Magistrate under Sub-Section (1A)
iii) State Government or District Magistrate under Sub-Section(2)
May order a preliminary investigation by an officer who is not below the rank of an inspector and will have the same power as contemplated under Sub-section (3) of Section 155 (that basically deals with the information of non-cognizable cases and investigation to such cases)
To bring the legal position clearly to the fore, it is essential that sub-sections (1) and (3) of 196, Cr.P.C. must be read together. According to which competent Authority if after careful perusal of the material or report submitted by the Investigating Officer (I.O.) is dissatisfied with the material submitted, That means if the authority has the opinion that the material submitted is not enough to decide upon the granting of the sanction or there is a requirement to collect more evidence to decide upon the matter, then, in that case, the authority concerned can direct the I.O. to conduct further investigation.
Based upon the whole of such material, the concerned authority will take its final decision. Hence, if the said authority issues the sanction, it will meet the requirement under Section 196 (1) of Cr.P.C.
Appropriate time for granting of sanction
In the State Of Karnataka & Anr vs Pastor P. Raju on 4 August 2000, it was held by the Supreme Court overruling the Judgement of High Court that, neither the sanction can be granted immediately after an FIR is lodged nor such power can be exercised before the completion of the investigation proceedings or collection of evidence.
Application of mind before granting/ withdrawing of Sanction
In simpler terms, it can also be understood that though granting or refusing to grant sanction is solely an executive function and is not a judicial function. Thus, it is not important that the decision to give or withdraw sanction must be supported by reasoning or evidence from the side of the executive.
But what is essential is that it should appear that the authority concerned must have applied its mind to the fact and circumstances surrounding the offence and has taken the decision accordingly. Some important and recent cases dealing with the same aspect have been discussed here to bring out more clarity.
Careless drafting of Sanction
In the State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court stipulated that insertion of one inapplicable provision in the order, should not be reasonably construed as a proof that there was no application of mind by the appropriate authority.
In the instant case, the competent authority issued a sanction which suffered from major drafting issues, due to which the credibility of the competent authority has applied its mind or did not become a question of importance. It happened that there was no sanction for the offence under POTA, rather sanctions were given for inapplicable offences under IPC i.e.Sections 121, 121A, 122, 124 and 120B of the IPC. Moreover, the main offence “ POTA” was reduced to a residuary terminology “along with other offences”.
Though the Supreme Court heavily criticised the drafting error in the sanction but concluded that though instead of POTA, provisions of IPC were invoked but the sanction was issued only after the appropriate authority that the accused wanted to wage a war against the country. In the court opined that the context in which the expression “along with other offences” was used, if reasonably interpreted indicates that it referred to POTA offences
Therefore, it can be construed that sanction was duly given for the prosecution of the accused for the offences under POTA.
Ordering preliminary investigation and simultaneously according to sanction
In another very interesting case, Vali Siddappa And Others, Etc. vs State Of Karnataka on 11 November 1997 it was held that sanction was held patently illegality and not sustainable in the eye of law by reason of non-application of mind by the competent authority
In the instant case, it happened that the competent authority gave contradicting orders i.e. on one hand granted the sanction while on the other hand directed the I.O, to investigate the case under section 196(1) of Cr.P.C. As when a direction is given to the I.O. under section 196(3), Cr.P.C. There arises no question of issuing the sanction till the investigation is completed and evidence is collected.
The Court thus held that a criminal proceeding following as a result of such void sanction order, cannot be held as a legally sustainable criminal prosecution in the law and therefore the prosecution against the accused was quashed.
The consequence of non-accordance of sanction in a court of appeal
Facts: In the case of Mohd. Waris Raza vs State on 5 August 2019 one very important question was answered by the Supreme Court. In the present case, no sanction was issued by the State government or District Magistrate under Section 136 of Cr.p.c. which is the procedural requirement of section 120-B of the Indian Penal code (45 of 1860 ). But interestingly no such objection was raised by the accused either before Magistrate and after committal, even before Sessions Judge. The question appeared for the first time during the appeal before the High court.
Issue: The major question before the court was to decide whether the requirement of a “prior sanction” under Section 196 Cr.P.C was so essential and inherent, that the issue of its non-compliance even when not raised before the Magistrate or Session/trial court, but brought in the appeal for the first time, may vitiate the Trial and conviction
Contention: The state prosecutor argued that since the objection regarding the absence of a prior sanction was raised at the appellate stage thus it cannot be allowed and judgement of the subordinate Court cannot be vitiated on this ground.
He further submitted that the sanction is essentially a part of procedural requirement mentioned under Section 196 Cr.P.C. and hence, at the appellate stage, it cannot be used as a ground to vitiate the proceedings in view of section 465 Cr.P.C. As Section 465 of Cr.P.C. very clearly lays down that the Court of appeal cannot revise any observation, decision, sentence or order issued by the court of competent jurisdiction on account of any omission, error or irregularity in sanction for prosecution.
Judgement: Upon investigation, the court observed that in Section 465 of Cr.P.C. with reference to “sanction” only two words “error or irregularity” have been used and the word “omission” has not been mentioned. Therefore implying that in case of irregularity or error, the finding or observation will not be reversed in the court of appeal but if there has been complete omission then the Section 465 of Cr.P.C. will not have any application. Since in the instant case, the state never made any efforts to obtain sanction from a competent authority
Therefore the court quashed the proceedings of the case and the court further opined that if in case no sanction was issued by a competent authority under Section 136 of Cr.P.C, then it will amount to a serious flaw and can be even brought before the court of appeal for the first time. While if it is a case, where the sanction was obtained suffered from irregularity or error then the appellate court cannot vitiate the proceedings.
Objective of the Section
The objective of Section 196 Cr.P.C is to avoid the possibility of any arbitrary or frivolous prosecution of any innocent individual and to ensure prosecution only after due consideration by a competent authority.
This can be further viewed in the light, that as soon as the court takes the cognizance of an offence, it kick starts the prosecution of a delinquent. All this essentially interferes with the personal liberty and integrity of an individual. Therefore, the requirement of having a prior sanction is important to ensure due administration of justice and fairness.
After having so much detailed discussion over the offences against the state, various other offences, their procedural requirements and the significance of a valid sanction, we are in a position to draw out some logical and reasonable conclusions. Firstly, it is important to appreciate the nature of sanction contemplated under Section 196 of Cr.P.C which is indeed drafted with due diligence to ensure the fair administration of justice.
But still there exist some major loopholes that interfere with the due process of law, and essentially speaking these inadequacies are not because of the drafting issues but lies in the implementation of the section.
There have been a number of cases in the past where we can see glaring examples of lack of competency, diligence and knowledge on the part of the officers and authorities responsible for conducting the investigation and granting or withdrawing sanctions. Sometimes the sanctions are not taken from a competent authority, other times the concerned authority does not apply its mind and quotes wrong sections or does not take due diligence, While other times the requirement of a sanction is something that has been completely ignored. The reason for this can be varied; it may vary from corruption, to laziness, to lack of knowledge or competence.
But the worst part is that the consequences of such an attitude by the concerned authority has grave consequences. This practically results in a delay of justice or even escape of the criminals, which otherwise on the basis of evidence could have been justifiably and rightly convicted or sentenced. Thus to overcome this problem it is essential on the part of appropriate authorities to show enough sincerity and care while dealing with such cases.
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