Civil Procedure Code (CPC)

do governor has the power to grant sanction to prosecute MLAs or Ministers?


do governor has the power to grant sanction to prosecute MLAs or Ministers?

is there any case law related to it?
 
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Student

Hello!  

Code of Criminal Procedure lays down the granting of sanction in 2 cases. Sanction to Prosecute (Sec.132) and Sanction to take Cognizance (Sec.196 and 197). Sanction to prosecute is taken before the filing of FIR or the complaint whereas sanction to take cognizance is taken pre-cognizance and post-investigation stage.  

Section132 says any person who is a member or officer of armed forces and from the State Government in any other case will not be prosecuted without the sanction of Central or the State government.  

Section 196 and 197 of the Code states that for the prosecution of offenses against the state and of Judges and Public servants, sanction from Central or the State government is mandatory.   

sanction of the Central Government or State Government, as the case may be, for prosecution for offenses against the state and of Judges and Public servants respectively.  

There have been several cases to decide what includes central and state government and who has the authority to give sanctions. The state government can include the governor and the council of state ministers as well as the authorities who have been delegated the power. In the case of Yashwant Trimbak vs The State of Madhya Pradesh and Anr., the court held that governor has the authority to grant sanction and any person on the explicit orders of the governor can also grant sanction.   

Refer : R. S. Nayak vs. A. R. Antulay   

M. Karunanidhi vs. Union of India  

Regards  

Vasundhara Singh  

 
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Hello mam, greetings of the day. 
As per your query, yes, governor has the power to grant sanction to prosecute MLAs or Ministers. A five-judge Constitution Bench of the Supreme Court ruled that a governor can grant sanction to prosecute a minister though the government might not accord it. According to Section 197 of the Criminal Procedure Code, sanction of the government is required to prosecute government servants. This provision is meant to protect the government servants from frivolous and vexatious litigation. But this provision has also been criticised as it protected the accused with high political connections. The Constitution Bench headed by Justice Santosh Hegde has made significant change in the application of the provision to politicians in power. Justice SN Variava, writing for the Bench, said "democracy itself will be at stake" if the government refuses to accord sanction for prosecution against ministers in matters where prima facie a clear case for prosecution was made out. "It would then lead to a situation where people in power may break law with impunity safe in knowledge that they will not be prosecuted as the requisite sanction will not be granted," he said. The case laws you can refer are: Subramanian Swamy vs. Dr. Manmohan Singh & Anr, Prakash Singh Badal and Anr vs. State Of Punjab and Ors.
Hope this solves your query.
Regards
Nirali Nayak
Law Student

 
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