Prosecution for offences against the State (Section 196 of CrPc)
(a) Any offence punishable under Chapter VI or under Section 153-A, Section 295-A or sub-section (1) of Section 505 of the Indian Penal Code, i.e., the offences against the State (like waging war against the Government of India, sedition, etc.), promoting enmity between different groups of people, imputations or assertions prejudicial to national integration, deliberate acts outraging the religious feelings of any class, statements conducive to public mischief, etc.;
(b) A criminal conspiracy to commit such offence; or
(c) Any such abetment, as is described in Section 108-A of the Indian Penal Code,
Except with the previous sanction of the Central Government or of the State Government.
Section 196(1-A) of the Code of Criminal Procedure provides that no Court shall take cognizance of,—
(a) Any offence punishable under Section 153-B or sub-section (2) or sub-section (3) of Section 505 of the Indian Penal Code; 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.
The object of this provision is to prevent unauthorized persons from intruding the matters of a State by instituting State prosecutions, and to secure that such prosecution shall only be instituted under the authority of the Government.
The term ‘Government’ means either the President or the Governor acting on the advice of the Council of Ministers or on the advice of the individual Minister to whom the department concerned has been allocated under the Rules of Business.
The sanction under sub-section (1) of Section 196 of the Code need not, in the case of the State Government, be signed personally by the Governor. It is enough if it is signed by one of his accredited and Gazetted officer.
Unless duly authorized in this behalf, a Secretary to the Government cannot take the policy decision and accord the necessary comment under this Section on behalf of the Government without reference to the Minister-in-Charge.
Section 196 of the Code does not control the powers of a Magistrate under the Code, but only prevents a Court from taking cognizance of certain offences without there being a complaint made by the Government. If sanction is not obtained, the Magistrate cannot take cognizance of a private complaint under Section 295-A of the Indian Penal Code.
Sanction to prosecute under Section 196 of the Code is a condition precedent for taking cognizance of any such offence. Before according sanction, the concerned Government may order a preliminary investigation by a police officer not being below the rank of Inspector.
A criminal case was registered under Section 153-B of I.P.C., investigation of the offence was done and the accused was arrested. Police submitted a report as a result of such investigation before a Magistrate without obtaining previous sanction of the Central Government or of State Government.
It was held that previous sanction is necessary only for taking cognizance by a Court. Bar of sanction will not apply against registration of criminal case or investigation by police agency. It was held that passing of order of remand the accused to judicial custody in accordance with Section 167, Cr. PC. will not amount to taking of cognizance.
Prosecution for the offence of criminal conspiracy:
Section 196(2) of the Code of Criminal Procedure provides that no Court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B of the Indian Penal Code, 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.
However, where the criminal conspiracy is one to which the provisions of Section 195 of the Code apply, no such consent shall be necessary because, in case of such conspiracies the complaint of the concerned public servant or of the appropriate Court will be necessary to initiate the proceedings.
Section 196(2) of the Code deals with the case of criminal conspiracy and not with that of abetment of an offence or an attempt to commit that offence.
In case of conspiracies which are of pretty nature, private complaints should not be freely allowed and prosecution should be instituted only when they are necessary in the public interest.
Before giving consent for initiating criminal proceedings in respect of criminal conspiracy under Section 196(2) of the Code, the State Government or the District Magistrate may order a preliminary investigation by a police officer not being below the rank of Inspector.