MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

Code of Criminal Procedure (CrPc)

ABSTRACT
SEMESTER 1V

Topic: Sanctions for Prosecution: Does it help or hinder criminal justice?

Submitted To: Prof. Sarfaraz Ahmed Khan

Submitted By: Sakshi Salunke

Enrolment No: 2017043

SY B.ALL.B(Hons.) 2018-19
 SANCTION FOR PROSECUTION: DOES IT HELP OR HINDER
CRIMINAL JUSTICE?

The power to sanction is nothing but an executive action of the Government. This is not a
matter with respect to which the Governor is required under the constitution to act in his
discretion. The function of sanctioning prosecution as punishment need not necessarily give
rise to any broader crime control or public protection function and are justifies as an objective
in reducing punishments and prevention of further victimization. Prosecution sanction either
by the Central Government or by the State Government under the section 197 Cr.P.C is a
condition precedent for taking cognizance of an offence by a criminal court against a judge,
Magistrate or public servant only if he is removable from his office either by the Government,
or with the sanction of the Government. Central or a state Government is necessary for the
prosecution of a public servant not removable from his office save with the permission of the
Government. No sanction is required under this section to prosecute a public servant removable
by an authority lower than the Government. Sanction is requisite for the competent authority
whether the public servant is removable by the Government or by authority lower than the
Government. Sanction is not required under section 19 of the PC Act, if the public servant is
no longer in service at the time the court takes cognizance of the offence but is required under
section 197 CrPc even where the public servant is no longer in service at the time the Court
takes cognizance of the offence. The researcher attempted to find whether there is need to
sanction prosecution necessary for smooth running of criminal justice system. In Matajog
Dobey v. H.C. Bhari, it is now authoritatively load down by the Supreme Court that it is not
always necessary that the need for sanction under section 197 is to be considered as soon as
the complaint is lodged and, on the allegations, therein contained. The complaint may not
disclose that the act constituting the offence was done or purported to be done in the discharge
of official duty; but facts subsequently coming to light on a police or judicial inquiry or even
in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage. The
researcher also observed that sanctions are not necessary for bribery. Therefore, sanctioning
prosecution helps as well as obstructs criminal justice. Significantly, there are two aspects of
sanction for prosecution. First, any case instituted without a proper sanction must fail as the
entire proceedings are rendered void abinitio. Therefore, the prosecution must prove that valid
sanction has been granted by the sanctioning authority. Secondly, the sanctioning authority
must be satisfied that a case for sanction has been made out constituting the offence. The
sanction need not be based on legal evidence. The purpose of this paper has been set out to
understand and analyse the pros and cons of sanctioning prosecution in criminal justice and the
policies and practices of imposing sanctions. It also discusses about the crimes including
prevention, enforcement as well as functioning of criminal prosecution by imposing sanctions
or how the impact of sanctions can be in a society.