In regard to C.R.R. 3512 of 2011 with C.R.R. 1494 of 2011 this Court is
of the view that Section 197(4) of Cr.P.C. gives power to the sanctioning
authority to specify the offences for prosecution. Therefore, there is no
apparent error committed by the learned trial court. Naturally the trial
would proceed against the police officials under Sections 506/120B of IPC.One may be confused that there is an apparent conflict in between the
Section 197(4) of Cr.P.C. and Section 216(5) of Cr.P.C. One may raise a
question, if any Court wants to add or alter the charge in respect of a
specific offence for which no sanction was granted but sanction was granted
in respect of other offences on the same facts, whether Section 197(4) of
Cr.P.C. shall overlap Section 216(5) of Cr.P.C. or not? The Section 197(4) of
Cr.P.C. is as good as a passport to go on for a trial. So it is to be considered
only up to pre-trial stage. The Section 216(5) of Cr.P.C. comes into picture
only after the pre-trial stage and that can be applied any time before delivery
of judgment. So scope of the Section 216(5) of Cr.P.C. is wide enough than
that of the Section 197(4) of Cr.P.C. In the interest of academic discussion I
want to amplify the Section 216(5) of Cr.P.C. The Section 216(5) Cr.P.C.
speaks “if the offence stated in the altered or added charge is one for
the prosecution of which previous sanction is necessary, the case
shall not be proceeded with until such sanction is obtained, unless
sanction has been already obtained for a prosecution on the same
facts as those on which the altered or added charge is founded.”
(Emphasis supplied) In the aforesaid section it has been specified by the
legislature “…..unless sanction has been already obtained for a
prosecution on the same facts…..” For application of Section 216(5) of
Cr.P.C. the necessary requirement of law is a sanction to prosecute on same
facts and here legislature did not specify the term ‘offence’ as mentioned in
Section 197(4) of Cr.P.C. Therefore, if there is already a sanction given by
the competent authority and the amended charge is based on the same
facts, no fresh sanction is necessary for the addition and alteration of
charge. Giving of sanction confers a jurisdiction to try but the court can proceed with the altered or added charge without fresh sanction on the same
facts, which were already been considered by the sanctioning authority. In
this instant case, the sanction was obtained for Section 306/120B/506 of
I.P.C. The governor has granted sanction in respect of Section 506/120B of
I.P.C. but did not grant sanction in connection with the alleged offence
under Section 306 of I.P.C. If one considers both the sections in its proper
perspectives, then the logical conclusion would be that fresh sanction under
Section 306 of I.P.C. is not required at the time of addition and alteration of
charge under Section 216(5) of Cr.P.C. if situation so warrants, because
sanction has been already obtained for a prosecution on the same facts.
Since Section 216(5) of Cr.P.C. comes into play during trial so Section 197(4)
of Cr.P.C. has no manner of application after the trial commences.
Therefore, if any sanction has been granted for prosecution on the same
facts, the Court has the power to add or alter the charge in respect of a
specific offence despite no specific sanction, was there in respect of the
offence for which charge is contemplated to be added/altered. It can be
summarised in this way that at the time of dealing with the Section 216(5) of
Cr.P.C. the court is to see if any sanction has been given on same facts or
not, irrespective of any offence.
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R. No. 1396 of 2011
(Ahok Kr. Todi vs. C.B.I.)
Present : The Hon’ble Justice Siddhartha Chattopadhyay
Judgment Delivered On : 12.06.2017.
Siddhartha Chattopadhyay, J.:
Print Page
of the view that Section 197(4) of Cr.P.C. gives power to the sanctioning
authority to specify the offences for prosecution. Therefore, there is no
apparent error committed by the learned trial court. Naturally the trial
would proceed against the police officials under Sections 506/120B of IPC.One may be confused that there is an apparent conflict in between the
Section 197(4) of Cr.P.C. and Section 216(5) of Cr.P.C. One may raise a
question, if any Court wants to add or alter the charge in respect of a
specific offence for which no sanction was granted but sanction was granted
in respect of other offences on the same facts, whether Section 197(4) of
Cr.P.C. shall overlap Section 216(5) of Cr.P.C. or not? The Section 197(4) of
Cr.P.C. is as good as a passport to go on for a trial. So it is to be considered
only up to pre-trial stage. The Section 216(5) of Cr.P.C. comes into picture
only after the pre-trial stage and that can be applied any time before delivery
of judgment. So scope of the Section 216(5) of Cr.P.C. is wide enough than
that of the Section 197(4) of Cr.P.C. In the interest of academic discussion I
want to amplify the Section 216(5) of Cr.P.C. The Section 216(5) Cr.P.C.
speaks “if the offence stated in the altered or added charge is one for
the prosecution of which previous sanction is necessary, the case
shall not be proceeded with until such sanction is obtained, unless
sanction has been already obtained for a prosecution on the same
facts as those on which the altered or added charge is founded.”
(Emphasis supplied) In the aforesaid section it has been specified by the
legislature “…..unless sanction has been already obtained for a
prosecution on the same facts…..” For application of Section 216(5) of
Cr.P.C. the necessary requirement of law is a sanction to prosecute on same
facts and here legislature did not specify the term ‘offence’ as mentioned in
Section 197(4) of Cr.P.C. Therefore, if there is already a sanction given by
the competent authority and the amended charge is based on the same
facts, no fresh sanction is necessary for the addition and alteration of
charge. Giving of sanction confers a jurisdiction to try but the court can proceed with the altered or added charge without fresh sanction on the same
facts, which were already been considered by the sanctioning authority. In
this instant case, the sanction was obtained for Section 306/120B/506 of
I.P.C. The governor has granted sanction in respect of Section 506/120B of
I.P.C. but did not grant sanction in connection with the alleged offence
under Section 306 of I.P.C. If one considers both the sections in its proper
perspectives, then the logical conclusion would be that fresh sanction under
Section 306 of I.P.C. is not required at the time of addition and alteration of
charge under Section 216(5) of Cr.P.C. if situation so warrants, because
sanction has been already obtained for a prosecution on the same facts.
Since Section 216(5) of Cr.P.C. comes into play during trial so Section 197(4)
of Cr.P.C. has no manner of application after the trial commences.
Therefore, if any sanction has been granted for prosecution on the same
facts, the Court has the power to add or alter the charge in respect of a
specific offence despite no specific sanction, was there in respect of the
offence for which charge is contemplated to be added/altered. It can be
summarised in this way that at the time of dealing with the Section 216(5) of
Cr.P.C. the court is to see if any sanction has been given on same facts or
not, irrespective of any offence.
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R. No. 1396 of 2011
(Ahok Kr. Todi vs. C.B.I.)
Present : The Hon’ble Justice Siddhartha Chattopadhyay
Judgment Delivered On : 12.06.2017.
Siddhartha Chattopadhyay, J.:
