[dropcap]O[/dropcap]N January 14, 2019, the Delhi Police filed a 1,200-page charge-sheet before the Patiala House Court against 10 people, including Kanhaiya Kumar, Umar Khalid, and Anirban Bhattacharya, for holding an alleged "anti-national" event in the campus of Jawaharlal Nehru University in Delhi in February 2016. The Metropolitan Magistrate Deepak Sherawat refused to take cognizance of the probe for the reason that the Delhi Police, before filing the charge-sheet, did not obtain the customary sanctions for prosecution from the Government of Delhi and adjourned the matter to February 6, 2019.

What is the Sedition law?

The Delhi Police have charged the ex-JNU student union leader and others for various offences, including the offence of sedition, which falls under Section 124-A of the Indian Penal Code (IPC), read with conspiracy under Section 120B IPC, which read as follows:

"Section 124-A: Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India], shall be punished with 16 [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Section 120-B: Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."

As provided under the Criminal Procedure Code (CrPC), when the Prosecution files a charge-sheet to initiate the prosecution for an offence punishable under Chapter VI of the IPC (which includes the Offences against the State), it is necessary for it to obtain the sanction of the State government in order to initiate the prosecution, in compliance of Section 196 of the Criminal Procedure Code (CrPC), which reads as follows:

"Section 196: Prosecution for offences against the State and for criminal conspiracy to commit such offence.— (1) No Court shall take cognizance of—

(a) any offence punishable under Chapter VI

except with the previous sanction of the Central Government or of the State Government.

[(1A) No Court shall take cognizance of—

(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such offence,

except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.

(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit [an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.

(3) The Central Government or the State Government may, before according sanction 1[under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A)] and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank."

Sanction: meaning and objective

Sanction is the permission to prosecute granted by the authorities concerned. The power to sanction of the State Government is a sine qua non, and no Magistrate can take cognizance of an offence under Chapter VI of IPC unless sanction granted by the Government.

The objective of Section 196 of CrPC was discussed by the Bombay High Court in affirmative in Queen Empress v. Bal Gangadhar Tilak, 22 Bom 112 at p. 125. The Court ruled that, "the object of [the] Section is to prevent unauthorized persons from intruding in matters of a State by instituting State prosecution and to ensure that such prosecution shall only be instituted under the authority of the Government". In Sagolsem Indramani Singh and Ors v. State of Manipur, 1955 CriLJ 184, the Gauhati High Court observed that, "the object of sanction under Section 196 of CrPC is to ensure prosecution only when after due consideration, the appropriate sanctioning authority is satisfied that there is a proper case to put the party on trial, and also to save time of the criminal Court being wasted by needless prosecution without conviction".

Sanction only by act of government, and not the Police

In State of Karnataka v. K. Rajashekara, 2010 (1) KantLJ 47, the Karnataka High Court observed that the offences under Chapter VI of the IPC are of a serious and exceptional nature and deal with matters relating to public peace and tranquility with which the State Government is concerned. Therefore, the sanction must – in order to satisfy the Section 196 – be the act of the State Government and not of the probing agency or any other authority.

Section 196 confers and reserved the powers only on the Government to determine whether cognizance of offences against the state should be taken. The Calcutta High Court, in Barindra Kumar Ghose and Ors. v. Emperor, (1910) ILR 37 Cal 467, also observed that: "Section 196 of the CrPC reserves to the Local Government the power of determining whether cognizance shall be taken by the Court of any offence punishable under Chapter VI of the Indian Penal Code except Section 127 of IPC. Seeing that this Chapter deals with offences against the State, the policy of this safeguard is manifest; the maintenance of this control is of the highest importance; and it is beyond the competence of the Local Government to delegate to any other body or person this controlling power and the discretion it implies. The question whether action should be taken under Chapter VI is more than a matter of law; considerations of policy arise, and these can only be determined by the authorities specially designated in the section."

However, there is no special protocol laid down in the CrPC on how the sanction ordered should be conveyed by the Government to the magistrate. In practice, the order of sanction by the Government is conveyed to the officer who puts the law in motion in cases under Chapter VI of the IPC.

The giving of sanction by the State Government confers jurisdiction on the Court to try the case. Such jurisdiction must be exercised by the Judge or Magistrate, as per the procedure under the CrPC. Although, the charge need not follow the sanction verbatim, it must not relate to an offence essentially different from that to which the sanction relates.

Also read: Open letter to P Chidambaram: Include promise to repeal sedition law, Section 124-A, IPC in Congress' election manifesto for 2019 

Necessity of 'Valid Sanction'          

The necessary criterion for taking cognizance of the offences enumerated in Chapter VI of IPC is the "valid sanction" by the appropriate government. The proposition what is a "valid sanction" was dealt in the case of Union of India v. Samarathmal, 1990 Cr LJ 1153 (MP), where the court held that for a valid sanction, it is necessary that the basic facts constituting the offence must be already placed before the sanctioning authority. The sanction must show the application of mind and should not amount to signing the order mechanically. An order of sanction is signed by the Government only after completing the investigation. In case, where the order according sanction also directed investigation, "the said order [would be] bad because sanction can be given only after the investigation is complete", as the court observed in the case of Vali Siddappa v. State of Karnataka, 1998 Cr LJ 1879 (Kant).

Section 196 does not control the powers of the Magistrate but prevents him from taking cognizance of certain offences without a complaint sanctioned by the State Government. A trial cannot proceed on the basis of cognizance taken by the Magistrate illegally.

The Allahabad High Court in Arun Jaitley v. State of U.P., 2016 (1) ADJ 76, held that, "Section 124A stands comprised in Chapter VI of the Penal Code and would therefore, stand covered in clause (a) of Section 196. It therefore, clearly follows that the Magistrate could not have taken cognizance except with the previous sanction of the Government".

In Manuel v. State of Kerala, 2013(1) KLJ 99, the Kerala High Court held that, "to determine whether any offence of sedition is made out thereof is not called for S. 196 of the CrPC mandates that a complaint for such offence should be expressly authorised by the Government, and if not, the court cannot take cognizance of such offence against the accused person. Committal proceedings taken over the final report laid before the court without production of order of sanction satisfying the statutory mandate is clearly unsustainable".

The Madhya Pradesh High Court in Juber and others v. State of Madhya Pradesh, MCRC No. 11309/2015, held that "before taking cognizance by the Magistrate, sanction should have been placed on record along with the charge-sheet and without there being such sanction, cognizance could not be taken by the Magistrate".

There is as such no particular form of sanction as required under Section 196 of CrPC. However, as observed by the court in Inguva Mallikarjun Sharma v. State of Andhra Pradesh, 1978 Cr LJ 392 (AP), the sanction order must contain the sufficient particulars so that it may be clear that what is the subject-matter for which the proceeding has to be taken. Therefore, the order of sanction must be preceded by application of mind on the part of the appropriate authority to the facts constituting the offence.

Can Delhi Police obtain sanction at this stage?

In the present case, the Delhi Police, firstly, filed the charge-sheet with such serious allegations after almost three years from the date of incident, and secondly, since one of the charges alleged against Kanhaiya Kumar and others is of sedition which falls under Chapter VI of the IPC, the police is bound in law to obtain sanction from the appropriate Government, in this case from the Government of Delhi, which they have not.

Sanction under Section 196 of CrPC has to be taken at the outset by the probing agency to initiate prosecution. However, sanction of the State Government is not required immediately upon recording of FIR for starting the investigation into a case. Sanction is, however, required at the time of filing the charge-sheet before the Magistrate to initiate the prosecution.

The Madras High Court in Re: Venkataramiah, AIR 1938 Mad 138, laid down that, "even a subsequent sanction given for filing the complaint does not fulfill the requirements of Section 196 CrPC, as the law clearly says that it is a condition precedent to the prosecution that sanction shall be obtained from the local Government and it is not open to any subordinate authority to override the provisions of law by saying that the offence falls in any section of the IPC and that no sanction is necessary for prosecution under that section".

In Mohammed Razhur Rehaman and Ors. vs. State of Karnataka, 2016(5) KarLJ 15, the Karnataka High Court held that, "it is true that the sanctioning authority has to evaluate the materials on record, to come to a conclusion that whether any prima facie material is there to accord sanction to prosecute the accused. The sanctioning authority cannot be expected to appreciate the materials on record to come to the conclusion whether those materials are sufficient to convict the accused, or not but sufficient to prosecute the accused".

However, the Supreme Court in Dharmesh v. State of Gujarat, AIR 2002 SC 2784 observed that the question whether the sanction order has to be filed before the Committal Magistrate or can be filed before the Sessions Judges after the committal of the case — is left open.

The Delhi Chief Minister Arvind Kerjiwal had ordered a magisterial inquiry into the alleged sedition case back in 2016. The inquiry had not found any evidence against Kanhaiya Kumar and had declared some of the video footage of the alleged incident doctored. Since, the Delhi Police charge-sheet has relied on certain videos, the magisterial inquiry report could be brought up by the Delhi Government to refuse the sanction against Kanhaiya Kumar, Umar Khalid and other accused persons.

​ The Magistrate, therefore, rightly took the decision of not taking the cognizance of the offence on the charge-sheet filed by the Delhi Police. However, the Magistrate allowed the Delhi Police to procure the requisite sanction within 10 days. In any event, sanction has to be taken at the earliest without any inordinate delay and 10 days have already passed since the court order. The Court, after allowing the Delhi Police to seek sanction from the Government, should put a time-barred limit on obtaining the sanction, failing which no further extension should be granted.

Political tussle

There is a lot of speculation on the tussle between the Delhi Police and the Delhi Government on the issue of giving sanction for prosecution, in the present case. The Leaflet has learned that, as per sources in the Ministry of Law in Delhi, the application for sanction for prosecuting Kanhaiya Kumar, Umar Khalid and others named in the charge-sheet, is currently pending with the Home Ministry of Delhi.

Earlier media reports had indicated that the file was shuttling between the Secretaries of the Home Department and the Legal Department to seek legal advice and to ensure the guidelines on the issue of sanction. The concerned file was sent by Principal Secretary (Home) Satyendra Jain to Principal Secretary (Law) A K Mendiratta to get the legal opinion on the matter. The file was returned to Jain from the office of Principal Secretary (Law), but without putting up the file with the Law Minister Kailash Gahlot, which led to an uproar. On January 21, 2019, Law Minister Gahlot sent a show-cause notice to the Principal Secretary saying no decision can be made nor any opinion communicated to any other department without his prior approval.

Evidently, whether to sanction the sanction or not is a political-cum-legal question that has resonance far and beyond the present case, easily one of the most ​trying issues of our time.

Also read: Non-violent speech and the violent State: Understanding 'Sedition' in India