New Delhi: The Delhi government on Tuesday said that the LG and the Chief Secretary, in their over-enthusiasm to bypass elected govt on every matter, have created a situation wherein many people accused of committing serious crimes against the state might go scot free.
It said that Section 196 of IPC says that in the case of crimes committed against the state, no court shall take cognizance of any such case without the approval/sanction of the “state government”. Many serious crimes fall under this category. According to the Law Department of Delhi Government, “state government” in this law means elected government. This means that the Minister-in-charge is the competent authority and the minister’s approval was supposed to be taken in all these cases. After taking the Minister’s approval, the file would be sent to LG to decide whether he differed from the decision of the Minister and whether he would like to refer it to the President of India.
This procedure was being followed till a few months back. However, in the last few months, the Chief Secretary started sending all these files directly to LG bypassing the Minister. LG also gave “approvals” in all these cases, though he is not the approving authority. Therefore, in all such criminal cases in the last few months, sanctions given for prosecution are invalid. When the accused will raise this point in the courts, they will be released.
The Deputy CM, who is the Minister-in-charge, has directed the Chief Secretary to place a list of all such cases before him by 5 pm on Wednesday in which approval was not taken from the Minister. The Chief Secretary and the LG have created a peculiar situation for the government of Delhi
What does CrPC say?
Under Section 196(1) CrPC, a valid sanction for prosecution from the State Government is a prerequisite for certain offences. It includes offences like hate speech, hurting religious sentiments, hate crimes, sedition, waging war against state, promoting enmity etc.
According to SC orders, it is the elected Government which has to exercise executive powers to issue a valid sanction for prosecution Under Section 196(1) CrPC, and Hon’ble LG will be bound by the aid and advice of the Council of Ministers.
LG has no power to unilaterally grant sanction independent of the aid and advice of the Council of Ministers. His act of doing so has rendered such prosecutions invalid due to the lack of a valid sanction as recognised by law.
The actions of the Hon. LG undermines not only the law laid down by the Hon’ble Supreme Court but also the sanctity of the judicial process which is being set in motion only to fail in as much as a valid sanction is a necessary prerequisite for legally sustainable prosecution of offences referred to above. Sanctions granted bypassing the elected State Government leave avoidable lacuna which may well be exploited to their benefit by offenders.
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