Prosecution for offences against the State and for criminal conspiracy to commit such offence :
Section – 196. (1) No Court shall take cognizance of—
| (a) | Â | any offence punishable under Chapter VI or under section 153A, section 295A or sub-section (1) of section 505 of the Indian Penal Code (45 of 1860), or |
| (b) | Â | a criminal conspiracy to commit such offence, or |
| (c) | Â | any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), |
except with the previous sanction of the Central Government or of the State Government.
(1A) No Court shall take cognizance of—
| (a) | Â | any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code, 1860 (45 of 1860), or |
| (b) | Â | a criminal conspiracy to commit such offence, |
except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.
(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings :
Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before according sanction under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155.
COMMENTS
This section combines the provisions contained in sections 196, 196A and 196B of the old Code.
Object of the section – The object of this section which provides an exception to the general rule that a criminal prosecution can be initiated at the instance of any person, is to prevent unauthorised persons from intruding in matters of State by instituting prosecutions, and to secure that such prosecutions shall only be instituted under the authority of Government – See Bal Gangadhar Tilak 22 ILR Bom. 112.
General – It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind section 196 and section 197. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. “Encounter death” has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties and whether the public servant has exceeded his limit. It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.
In the instant case, it was quite apparent that as a result of the alleged search and raid, which was conducted by the petitioner in discharge of his official duties certain injuries, which were described as grievous injuries, had been inflicted on the complainant and one of the alleged offenders had died. In this case, admittedly, the petitioner was a Government servant. Admittedly, no sanction under section 197 had been taken. The trial in this case was for one of the offences mentioned under section 196 Cr. PC. The contention of the petitioner was that under section 196 the cognizance of the offence could not be taken nor the trial proceeded without the sanction of the appropriate authorities. The Sessions Judge observed that after gathering the materials and some evidence, it would be possible to determine whether the petitioner while acting in the discharge of his duties as a police officer had exceeded the limit of his official capacity in inflicting grievous injuries on the accused and causing death to the other accused. It was held that the Session Judge was right in its decision – Bakhshish Singh Brar v. Smt. Gurmej Kaur AIR 1988 SC 257.
Exclusion of elections offences – The old section 196 excluded from its purview offences under section 127 of the Indian Penal Code (receiving property taken by war, etc.) although all other offences in Chapter VI of Indian Penal Code were included. This has now been corrected in the new section. Similarly, the old section included election offences [Chapter XA of the Indian Penal Code except section 171F]. The inclusion in section 196 of election offences was originally done in order to allay the apprehensions of several local Governments that the new penal provisions were likely to be abused, specially in rural areas, for putting one’s personal enemies into trouble by foisting false cases on them after an election. It was thought that this would give some discretion to the Government to determine whether criminal proceedings were warranted in the circumstances of each case so that vexatious proceedings instituted solely on the basis of political animosity by private individuals could be avoided. This secondary object was certainly achieved but it is doubtful whether the penal provisions ostentatiously put in the Penal Code, but effectively blunted by section 196 of the Criminal Procedure Code, helped to maintain the purity of elections to any appreciable extent. This difficulty was realised in some provinces in regard to the offence of personation punishable under section 171F of the Penal Code. Even a person blatantly committing this offence at the polling booth could not be arrested or otherwise proceeded against on the spot since the offence was non-cognizable and the complaint of an empowered officer was required for prosecuting the offender in court. The Criminal Procedure Code was locally amended by four provinces excluding this offence from the scope of section 196 and making it cognizable. This lead was followed up in the Representations of the People Act, 1951, and the amendment became applicable throughout India. The Law Commission, therefore, recommended :
“The experience of the last 20 years in the field of countrywide democratic elections shows that unless these impediments to prosecution are removed, the mere fact that bribery, undue influence, character assassination, etc., are punishable on conviction by a criminal court, makes little difference and these corrupt practices are indulged in with impunity. The number of complaints lodged by the Government or empowered officers in regard to election offences (apart from personation) is naturally very small. Under the party system of Government prevalent throughout the country it will, no doubt, be embarrassing for the State Government to decide in the first instance whether a complaint ought to be lodged in a particular case. Whichever way it decides this question it is most likely that political motives, and prejudices will be attributed to it. It is possible that if the bar contained in section 196 of the Code is removed there will be a spate of private complaints, including quite a few vexatious ones for the sake of harassment, but we feel that this possibility must be faced in the interest to free and fair elections. We recommend that all election offences should be excluded from the section.”
SUB-SECTION (1)
Amendments
| 1. | Â | Offence of keeping lottery office – Section 294A of the Indian Penal Code (offence of keeping lottery office) has been left out of the section so that no private complaints in respect of that offence are shut out. |
| 2. | Â | Offence against national integration – Section 153B of the Indian Penal Code (offence against national integration) has been included as it is a new offence created by Act 37 of 1972. |
| 3. | Â | Offences against State – Prosecution for (a) offences against the State under sections 121 to 130 of the Indian Penal Code; (b) offences under sections 153A, 295A and 505 of the Indian Penal Code, and (c) offence of abetment or an offence committed outside India, which could be initiated by complaint of a State Government or under its authority or of an officer empowered by it, may, under the new provisions, be initiated by previous sanction of the Central Government or the State Government, so that a simple provision of this type would avoid the time-consuming controversies that are frequently raised in courts as to whether the officer has been duly empowered by the State Government, whether the authority to lodge the particular complaint had duly emanated from that officer or from the Government and so on. Similarly, since these offences are cognizable, it would be incongruous to require a complaint in such cases. Hence, the requirement has been altered to one of previous sanction instead of complaint. |
SUB-SECTION (1A)
Amendment Act, 1980 – A new sub-section (1A) has been inserted by the Amendment Act, 1980 with effect from 23-9-1980. The new sub-section, besides empowering the Central Government and the State Government, also empowers the District Magistrates to accord sanction for prosecution for offences falling under section 153B and sub-sections (2) and (3) of section 505 of the Indian Penal Code.
SUB-SECTION (2)
Criminal conspiracies – Sub-section (2) embodies the provisions of section 196A of the old Code. The old section classified criminal conspiracies into two groups and made a fine distinction as to the manner of initiating proceedings in respect of each. This distinction has since been done away with. The section has, therefore, been simplified and revised without any change in the core of the provision as interpreted by the Supreme Court in Bhanwar Singh v. State of Rajasthan AIR 1968 SC 709.
Amendment Act, 1978 – Sub-section (2) originally restricted the power of the court to take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code, other than a criminal conspiracy to commit a cognizable offence which is punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Government or the District Magistrate has consented to the initiation of proceedings. By the Amendment Act, 1978, the distinction between cognizable and non-cognizable offences for the purposes of this section has been removed.
SUB-SECTION (3)
Amendment Act, 1978 – Under sub-section (3) the Central Government or the State Government will have the power to order a preliminary investigation for deciding whether a complaint should be filed about conspiracy to commit a cognizable offence which is punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Government or the District Magistrate has consented to the initiation of proceedings. By the Amendment Act, 1978, the distinction between cognizable and non-cognizable offences for the purposes of this section has been removed.