Nishant Sirohi

| @nishantssirohi | April 3,2019

CHIEF Metropolitan Magistrate (CMM) Deepak Sherawat today directed the Public Prosecutor to set a time frame to receive a  reply from the Delhi Government on the sanction to prosecute former JNU student union President Kanhaiya Kumar and nine others on charges of sedition. The. matter will be heard next on April 10, 2019.

The Public Prosecutor informed the CMM Deepak Sherawat at the Patiala House Court that he had been informed by the Home Department, Government of Delhi that matter was under consideration and the sanction procedure could take around one month more.

The court did not however, seek an explanation from the Public Prosecutor on how a charge-sheet was filed in the first place by the Delhi Police without sanction for an offence under Section 124-A (sedition). Section 196 of the Criminal Procedure Code (CrPC) explicitly lays down the need  for an official sanction for the prosecution of any offence under Chapter VI (offences against the state) of the Indian Penal Code (IPC).

 

Delhi government’s position on sanction to prosecute

 

The Delhi Police filed the charge-sheet on January 14, 2019.  Officers at the Delhi Government’s Home Department  and the minister seem have contradictory interpretations on who the “sanctioning authority” under Section 196 of the Criminal Procedure Code is.

 

 

“The Home Department has raised the issue as to who is the competent authority? We are in the process of examining the issue and this will take some time,” Delhi Law Minister Kailash Gahlot is reported to have said on Tuesday.

The Delhi Home Minister Satyendra Jain, however, said in a file noting that his government had jurisdiction to give the necessary sanction for prosecution. The noting was made on March 18, 2019 on a file sent to him by Additional Chief Secretary (Home) Renu Sharma

 “CrPC, as well as prosecution, do not fall within the reserved subject where GNCTD (Delhi Government) does not have jurisdiction. This is covered by transferred subjected in which Lieutenant General does not exercise direction and is bound by the aid and advice tendered to him,” Jain said in the noting.

 

 

The Officers of the Home Department have argued that the sanction for prosecution under Section 196 of CrPC falls under the L-G’s jurisdiction. An assistant Legal Advisor is reported to have said that “even in case the minister-in-charge holds the opinion that Lieutenant General is bound by the view of the Council of Ministers for grant of sanction, the matter still needs to be placed for consideration of the competent authority i.e. Lieutenant General”.

 

Who will give the sanction?

 

In the Govt. of NCT of Delhi v Union of India case, the court only deliberated on the jurisdiction to initiate prosecution against corrupt public officers, i.e. who holds the power between the Delhi government and Central government on the issue of giving sanction under Section 197 of the CrPC to prosecute judges and public servants on charges of corruption. The court held that under Section 197, the Delhi government held power to give sanction for the prosecution of only those public servants employed by the Delhi Government and the Central Government held power to sanction the prosecution of only against those public servants employed by the Central Government.

 

 

Though the court did not discuss who could provide sanction to prosecute for offences against the state under Chapter VI, from a  bare reading of Section 196, it would seem that it is the Government of Delhi that has the power to sanction the prosecution of a person for offences against the state.

Without the sanction, the court cannot take cognisance of the chargesheet and start the prosecution. The Section of 196 of CrPC states that  “no Court shall take cognisance” without the “prior sanction of the state government”.​

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