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 130 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. | |
| (2) (a) | No Executive Magistrate or police officer acting under any of the said sections in good faith; | |
| (b) | no person doing any act in good faith in compliance with a requisition under section 129 or section 130; | |
| (c) | no officer of the armed forces acting under section 131 in good faith; | |
| (d) | no member of the armed forces doing any act in obedience to any order which he was bound to obey, |
shall be deemed to have thereby committed an offence.
(3) In this section and in the preceding sections of this Chapter,—
| (a) | the expression “armed forces” means the military, naval and air forces, operating as land forces and includes any other armed forces of the Union so operating; | |
| (b) | “officer”, in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer; | |
| (c) | “member”, in relation to the armed forces, means a person in the armed forces other than an officer. |
COMMENTS
Sanction granted under section 132 is not a substitute for sanction under section 197 – There are six significant points of difference between sections 132 and 197, these are:
(1) The two sanctions are addressed to altogether different persons. While sanction under section 132 is addressed to the intending complainant, sanction under section 197 is addressed to the Magistrate presiding over a Court.
(2) The two sanctions serve two altogether different purposes. While the sanction under section 132 clothes the intending complainant with authority to institute a complaint and set the machinery of the criminal Court in motion, the sanction under section 197 clothes the Court with the jurisdiction to take cognizance of the offence. Without the former, the intending complainant cannot trigger the proceedings, without the latter the Magistrate cannot have seisin over the matter or act in the matter.
(3) the absence of sanction in each case visits different persons with different consequences. Absence of the former disables the intending complainant whereas absence of the latter disables the Court.
(4) The disability operates in two different spheres. Want of sanction under section132 renders the complaint invalid. Want of sanction under section 197 vitiates all the proceedings in the Court. For want of 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. P.C. the question to be answered is whether the intending complainant 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 for which” the concerned public servant should be tried and “the Court before which the trial is to be held”. The authority seized of the matter in the context of sanction under section 132 does not have to address itself to these questions and in fact has no competence in this behalf.
(6) One is an authority to an individual to ‘prosecute’ the alleged offender, the other is an authority to ‘try’ the alleged offender. Therefore, a sanction under section 132 is no substitute for a sanction under section 197—Ram Kumar v. State of Haryana AIR 1987 SC 735.