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Sanction for prosecution.

(Querist) 06 November 2011 This query is : Resolved 
For Criminal Prosecution under certain offence and against public servant, sanction is required from appropriate authority. I want to know the object behind incorporation of this word SANCTION in Cr.P.C. We may say that it is required to ensure that whether sufficient evidences are against the accused for prosecution or not. A Magistrate taking cognizance does the same i.e. appreciating and weighing evidence before taking cognizance, if both the functions are akin to each other though by different authorities, what useful purpose will be served for making sanction compulsory ?
ajay sethi (Expert) 06 November 2011
yes objective behind obtaining sanctiionsis that there should be ufficient and clear evidence to show their direct involvement in the offence is required

Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, Hon'ble Supreme Court considered about validity of a sanction and held that it depends on applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation. It necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of sanctioning authority should not be under pressure from any quarter nor should any external force by acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous considerations


i agree that no useful purose would be served by making sanction compulsory . a mgistrarte can also weigh the evidence and decide whether primafacie case is made out

Arun Kumar Bhagat (Querist) 06 November 2011
My query remained the same, when magistrate shall apply his mind then why so much importance and insistence for sanction? I wish reply from Devjyoti Barman, Prabhakar ji, Dhingra ji, Ramchandran & Others.
prabhakar singh (Expert) 06 November 2011
If i remember correctly the debate was opened by Mr.Justice K.G.Balakrishnan[CJI].

In his own view the requirement of sanction for prosecution of public servants acts as a blockade and causes interference in judicially required probes.

The Prevention of Corruption Act under Section 19(1) which provides that "no court can take cognizance of" any of the more serious offences except "with the previous sanction of the authority that is competent to remove him from his office at the time when the offence was committed."

This also goes as a need even for a crime under the Indian Penal Code.

Section 197 of the Code of Criminal Procedure provides that no court can take cognizance of a case where a judge or magistrate or a public servant protected under the Indian constitution “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.”
It lays that action can be taken only with the sanction of his employer.



The argument behind the need of sanction is told to be that it prevents wrong,false, vexatious and frivolous litigation which could be filed against public servants.


The argument is ,however, devoid of merit and it serves a disguised purpose rather than what it put forwards as argument.

It can not be denied that though we have opted a democracy but the way politician have caused the governance to run the executive has always played a vital role for them.The benefit of corruption goes from bottom to top.Then it is always possible that there would be possible group of tainted bureaucracy protecting each other just due to sharing and denying the permission sought for.

A great essayist called to be father of English essays aptly remarked once "Power corrupts, and absolute power corrupts absolutely".

And this permission theory is the same thing "converting the power in to absolute





If a kingship recognizes the principle 'KING CAN DO NO WRONG'it may be intelligible why are there privileged executives.

But when a democracy guaranteeing EQUALITY
BEFORE LAW declares its executive a privileged class, my mind traces the past for getting the point that all that was trick of ruling Britishers was adopted by the politician for governance of we illiterate people and deliberately Education was continued to be kept ignored.

These permissions can be denied on several show cased grounds while truth behind denial may be a sharing in corruption or party affiliation or friendship and kith kin relation ships and many more.

It was remarked by CJI KGB,many a times permissions have been denied despite suitable ample evidence prima facie collected by investigating agencies just for extraneous reasons or considerations which can judicially be never justified.
He further remarked that even where no money changes hands ,the quality of governance suffers when decisions are made on account of other considerations related to political patronage, kinship or caste and linguistic identity.

THE TOLERANCE WE INDIANS HAVE TO IGNORE THESE THINGS IS ANOTHER GREAT REASON THESE
THINGS HAVE YET STAYED TO DISCRIMINATE.


As regards to the fact that one empowered with trial can look in to if trial can go on or not.

The reply to false victimization is this that what about others who are being targeted by false charges 498a may serve a burning example.

I remember a provision was there in CPC by section 92.To file a suit under this section it was necessary that prior permission of the ADVOCATE GENERAL was to be obtained.And the delay position was that if some one apply in this calender year he may hope a decision in the next calender only.

It used to cast great hardship then it was withdrawn by an amendment and the court it self was left with its discretion whether to give permission or not.


It suited to politicians and executives as it was a civil mater.BUT WHY CAN NOT THE SAME THING HAPPEN IN CRIMINAL MATTERS.
AFTER ALL A JUDICIAL MIND WILL SERVE THE PURPOSE MORE BETTER THAN THE EXECUTIVE.

A few may argue that then court may go more crowded with pendency of these matters while the judicial system is already burdened with huge pendency and is charged with delayed justice.But i do not see it a potent argument because judicial delivery can be advanced and got expedited by adequate extension of its strength.

HENCE IT IS HIGH TIME THAT THE POWER OF PERMISSION, IF ANY, SHOULD NOW VEST IN JUDICIAL SYSTEM IT SELF .



Arun Kumar Bhagat (Querist) 07 November 2011
Today I found an expert like Prabhakarji from whom I can even seek guidance in Criminal laws also. Very praiseworthy self-observed deliberations.


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