[CrPC] Subsequent Sanction After Cognizance Is Taken Won't Cure Initial Defect: Delhi High Court

The Delhi High Court has observed that the sanction to prosecute under Section 197 of CrPC obtained after cognizance is taken will not cure the initial defect in cognizance.

“It is settled law that the Sanction had to be obtained prior to taking of cognizance. Subsequent sanction would not cure the initial defect in cognizance,” Justice Neena Bansal Krishna said in an order passed on January 17.

The Court made the observations while discharging a principal of a Municipal Corporation of Delhi (MCD) school for the offences under Section 304A (causing death by negligence) and 34 (common intention) of the Indian Penal Code, 1860.

Justice Krishna allowed the principal's plea challenging the order passed by a Metropolitan Magistrate rejecting her objection taken qua the cognizance of the offences. It was her case that the cognizance was bad in law.

The FIR was registered in 2014 against the principal, a JE Contractor and one school maid, alleging that a four years old child died due to drowning in a Septic Tank on account of their negligence.

The principal petitioner took an objection that the cognizance itself was bad since no prior Sanction had been obtained against the Principal of the School and the JE.

The Prosecution however got sanction against the two accused, including her. It was then contended that the cognizance was bad in law as the subsequent sanction could not have cured the initial defect of taking the cognizance.

The said objection was dismissed vide the impugned order, observing that the challenge to the cognizance tantamount to a Review, which was not within the jurisdiction of the Court.

Allowing the plea, Consequently, the Application for dropping of proceedings against the Petitioner, the Court directed the principal with the liberty to the Prosecution to take appropriate action in the matter.

“If the Application for condonation of delay is filed, the same may be considered, in accordance with law. However, viz-a-viz the other accused, Trial shall continue, in accordance with law,” the Court said.

Counsel for Petitioner: Mr. Dhruv Gupta, Ms. Liza Arora, Mr. Yash Mehran and Mr. Anubhav Garg, Advocates

Counsel for Respondent: Mr. Shoaib Haider, APP for the State

Title: REKHA KAKKAR v. STATE OF NCT OF DELHI

Citation: 2025 LiveLaw (Del) 77

Click here to read order