New Delhi: The requirement of sanction for prosecution in offences against the state is a safeguard against human rights violations. In some instances, however, it has ensured  the impunity for such violations by the security forces.   Thus the ‘competent authority’ which sanctions permission for prosecution in such offences, under Section 196 CrPC, can either refuse to sanction prosecution to avoid frivolous litigation or accord it if it sees prima facie merit in the allegations against the accused. The “competent authority” can be the Union government, the state government or the district magistrate.

The state’s refusal to sanction prosecution against security forces alleged to have caused human rights violations came in for criticism from rights bodies several times, especially in Jammu and Kashmir, and in some cases even led to litigation by the victims who challenged such refusal. When the same authority ignores its obligation to either accord or deny sanction in the cases of prosecution of innocent citizens, it is an admission that the allegations against the accused lack substance, thus vindicating the plea for quashing of charges by the competent court.

On Thursday, the Allahabad high court’s single-judge bench of Justice Gautam Chaudhary quashed the entire criminal proceedings against Dr Kafeel Khan for his speech against the Citizenship (Amendment) Act (CAA) at a protest meeting at Aligarh Muslim University (AMU) in December 2019 on the ground that the police did not obtain the requisite sanction from the state government before filing the charge-sheet under Sections 153A, 153B and 505(2) of the Indian Penal Code.

On Thursday, the single judge of the high court remanded the case back to the court of the chief judicial magistrate, Aligarh directing that cognisance of the charges against Khan under these sections should be taken only after obtaining prior sanction of prosecution by the competent authority under Section 196 CrPC.

On September 2, 2017, Khan, who was the nodal officer of the Baba Raghav Das Medical College and Hospital, Gorakhpur, Uttar Pradesh, was arrested under various sections of the IPC, Prevention of Corruption Act and the Indian Medical Council Act for the death of infants at the hospital, due to the lack of oxygen. He was jailed for nine months on charges of medical negligence, corruption and dereliction of duty.

On April 25, 2018, the Allahabad high court granted him bail, saying that he was not needed in custody since the chargesheet had been filed. On September 27, 2019, an internal hospital inquiry committee cleared him of the allegations, noting that he was not the nodal officer of the encephalitis ward, and therefore, it was not negligence on his part that led to the deaths of children.

On December 12, 2019, Khan delivered a speech at the anti-CAA protest at AMU. On January 30, 2020, the Uttar Pradesh police arrested him for his speech alleging it was inflammatory and provocative. He was remanded to judicial custody in Mathura jail.

On February 14, 2020, charges under the National Security Act were invoked against him. The NSA allows the government to detain people for up to one year without a trial if they suspect that they could disrupt public order, endanger national security or ties with foreign countries. On September 1, 2020, the Allahabad high court set aside Khan’s detention under the NSA, securing his release from jail. The high court held that his detention under the NSA was not sustainable in the eye of law as his speech at AMU did not disclose any effort to promote hatred or violence.

Similar cases

The quashing of charges against Khan on Thursday is one more instance of how the failure to comply with Section 196 CrPC by the police in offences against the state can eventually expose the abuse of the legal process by the state which foisted baseless allegations against the accused. Even in cases which prima facie merited prosecution, the courts gave the benefit of doubt to the accused on the technical ground that sanction was not obtained from the state.

In Swaraj Thackeray v State of Jharkhand (2008), the Jharkhand high court quashed the charges under sections 153A and 153B of IPC against the Maharashtra Nav Nirman Sena leader, Raj Thackeray, on the ground that the Jharkhand government had not accorded the requisite sanction for prosecution for offences, which prima facie seemed sustainable. Thackeray had allegedly made provocative speeches against citizens of north India, especially Biharis, living in Mumbai.

In Sarfaraz Sheikh v The State of Madhya Pradesh, Madhya Pradesh high court held as follows:

“Taking cognisance of an offence kickstarts the prosecution of a delinquent and involves a process of interference with his personal liberty; therefore, the requirement of prior sanction of the State Government is a basic jurisdictional fact before further action may be taken for taking cognisance of the offence. Hence, this Court is unable to accept the contention that subsequent sanction accorded on 16.08.2016 shall legalise the prosecution initiated after taking cognisance on 05.03.2016 and  hence, contention is rejected.”

In Mohd. Waris @Raza v State, Jail Appeal No.8326 of 2007 decided on August 5, 2019 by the Allahabad high court, the prosecution strangely proceeded in complete and absolute ignorance of Section 196 CrPC, leaving no option to the court but to quash the charges against the accused.

In State v Abdul Qayoom ,decided on March 16, 2021, the high court of Jammu and Kashmir (by Justices Sanjeev Kumar and Puneet Gupta) dismissed the appeal of the state against the order of the trial court acquitting the accused.  Charges framed under Sections 121, 122 and 123 of the Ranbir Penal Code failed on the legal ground that the prosecution has not been initiated on a complaint made by the district magistrate and, therefore, the provisions of Section 196 CrPC have not been complied with. In this case, the accused was alleged to have links with militants from Pakistan and also worked as their guide.

In Zakir Hussain v Union Territory of Ladakh and Others, decided on February 11 this year by Justice Sanjeev Kumar of the High Court of Jammu and Kashmir, the accused allegedly recorded a conversation between him and the co-accused which was extremely objectionable, containing derogatory references to the role of the Indian Army in the Galwan misadventure of armed forces of China. The accused was suspended from discharging the functions of councillor of LAHDC (Ladakh Autonomous Hill Development Council) Kargil. The CJM, Kargil, noted that the charge-sheet submitted by the police was incomplete sans requisite sanction in terms of Section 196 CrPC, as the allegations were under Sections 124A, 153A, 153B and 505(2), 120B of the IPC.

The police had no authority to either register an FIR or embark on investigation, much less to present the challan/final report before the judicial magistrate concerned, the high court held. “The court can take cognisance only on a complaint filed by the district magistrate and in the instant case no such complaint has been filed by the district magistrate, Kargil,” the high court noted. “Mere derogatory or objectionable words are not sufficient to invoke the provisions of Section 124 or 153A of the IPC unless the written or spoken words have the tendency or intention of inciting disorder or disturbance of public peace or public violence,” the trial court had held in this case.

As the petitioner-accused was a councillor in the LAHDC, Kargil, he is a public servant in terms of Section 54 of the LAHDC Act, 1997, and therefore, no cognisance against him could be taken by the court unless there is a prior sanction under Section 197 of the CrPC, the high court held. The trial court had erroneously accepted the challan and proceeded in the matter when the requisite sanction under Section 196 as also under Section 197 of the CrPC had not been granted by the competent authority, the high court found.

The high court held that the bar created by the provisions of Section 196 CrPC is against taking cognisance by the court and there is, thus, no bar against registration of an FIR or investigation by the police, if the information received by the police discloses commission of a cognisable offence. In the instant case all the offences, with which the petitioner has been charged, are cognisable. (Cognisable is an offence where the police may arrest without warrant). “Provisions of Section 154 CrPC are not controlled by Section 196 of the code. Section 196 comes into operation only at the time when the court is to take cognisance of the offence and proceed in the matter in a particular way as prescribed under the law,” the high court explained in this case.

The CJM should have returned the challan to the police for its presentation after seeking previous sanction of the competent authority. The high court concluded that the offences charged against the petitioner are not made out, and therefore, the registration of FIR, which has culminated into filing of the final police report without previous sanction from the competent authority before the CJM, Kargil is sheer abuse of the process of law. The court invoked its inherent powers under Section 482 CrPC and quashed all the criminal proceedings pending against the petitioner including the impugned FIR with regard to the audio clip.

In State of Karnataka and another v Pastor P.Raju (2006), the Supreme Court distinguished taking cognisance of an offence and issuance of process. The court held that previous sanction of the Union government, state government or district magistrate is mandatory to take cognisance of an offence punishable under Sections 153B or 505(2) or (3) of the IPC or a criminal conspiracy to commit such offence. Police can submit a report as a result of investigation before a magistrate without the previous sanction of the stated authorities, and there will be no violation of Section 196 (1-A) CrPC. But the court shall not take cognisance thereof unless there is previous sanction by the Union government, state government or DM, as the case may be, the Supreme Court held.

In George Mangalapilly v State of MP, Madhya Pradesh high court, on August 27 last year, quashed criminal proceedings pending against the accused in respect of offences under Sections 153B(1) and 295A for want of proper sanction. It relied on the Supreme Court’s judgment in Smt.Nagawwa v Veeranna Shivalingappa Konjalgi (1976) that if the complaint suffers from fundamental legal defects, such as want of sanction or absence of complaint by legally competent authority and the like, order of the magistrate can be quashed or set aside on the above ground.

Dr Kafeel Khan’s case, however, shows that where the lines are blurred between the state and the police, as in Uttar Pradesh, the implications could be different. The failure to accord sanction on the part of the state to the prosecution of offences against it could well suggest that the allegations levelled against the accused are hollow. As the allegations lack substance, the state perhaps saw merit in letting technical grounds determine their outcome, to avoid the final embarrassment of losing the case in the court of law.