1987 (1) TMI 503

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....e force in the discharge of purported discharge of their duty:  (1) They cannot be "prosecuted" without obtaining a sanction to prosecute from the appropriate Government (Section 132 (132. Protection against prosecution for acts done under preceding Sections-(1) No Prosecution against any person for any act purporting to be done under Section 129, Section 139 or Section 131 shall be instituted in any Criminal Court except-  (a) with the sanction of the Central Government where such person is an officer or member of the armed forces;  (b) with the sanction of the State Government in any other case….) of the CrPC) (Cr. PC)  (2) No Court can take "cognizance" of an offence against su....

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....e purported 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. PC there was no need for sanction under Section 197 of Cr. PC 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 (Section 132) can be treated a....

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.... the former, the complainant cannot complain, for want of the latter the court cannot try the case.  (5) The sanctioning authority has to address itself to different questions. In regard to a sanction under Section 132 Cr. PC the question to be answered is whether the intending complain ant is a suitable person to be authorized for prosecuting the matter in good faith. In regard to the sanction under Section 197 the question to be answered is which particular court should be empowered to try the case. So also in granting sanction under Section 197 the sanctioning authority has to consider 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 ....