The general provisions of clauses (b) and (c) of Section 190, which enable cognizance to be taken by a Magistrate on a police report or on his own knowledge or information, have no application in case of offences mentioned in sub-section (1) of this section. In other words, cognizance in these cases can only be taken on a complaint which must have previous sanction of the Central or State Governments as the case may be.
Prior sanction to prosecute under this section is a condition precedent for taking cognizance of offences in respect of publishing matters prejudicial to national integration, as mentioned in newly added sub-section (1-A) to Section 196. Sanction obtained subsequently after the initiation of prosecution will not validate the proceedings. So also, absence of sanction has been considered to be a basic defect as regard jurisdiction and therefore, it is not curable under Section 465 of the Code.
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Sub-section (3) provides that before giving sanction to prosecute for any of the offence mentioned in sub-sections (1) and (1-A) of this section; the Central Government or the State Government or the District Magistrate, as the case may be, may order a preliminary investigation by a police officer not below the rank of an Inspector.
Since giving sanction or refusing to give sanction is purely an executive exercise of function by the Government, it is not a judicial function and hence it need not be necessarily based on legal evidence nor is it necessary for the Government to give reasons for giving or withholding sanction to prosecute under this section.
It should however, appear from the order relating to grant or refusal of sanction to prosecute that the authority applied its mind to the facts and circumstances constituting the alleged offence.
Sub-section (2) deals with prosecution for the offence of criminal conspiracy punishable under Section 120-B of IPC.
The Supreme Court in Parmathnath Talukdar v. Saroj Ranjan Sarkar, held that where the complaint shows that some offences distinct from the criminal conspiracy were actually committed in pursuance of such conspiracy, and these offences did not require sanction for initiating proceedings, the Court may take cognizance of such offences even without the sanction under Section 196(2) though they were committed in pursuance of the criminal conspiracy.
A perusal of sub-sections (1-A) and (2) of Section 196 make it clear that no sanction is required for criminal conspiracy to commit an offence which is punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or more.
Similarly, a criminal conspiracy to suppress evidence of commission of offence or to save the offenders from legal punishment does not attract the provisions of Section 196(2) of the Code and hence no prior sanction is required to institute prosecution for such criminal conspiracy.
The Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, held that where there was insertion of one inapplicable provision in the order, it should not be reasonably inferred that there was no application of mind by the competent authority.
In the instant case, Presidential Notification was issued under Article 239 (1) of the Constitution of India enabling the Administrator of Union Territory Ltd. Governor, Delhi to discharge powers and functions of the State Government under Cr. P.C. Sanction accorded by Lt. Governor was held valid as the Government of NCT of Delhi Act, 1991 appearing in the sanction did not in any way aversively affect the validity of the said delegation of powers.