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PETITIONER: R.R. CHARI

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH.

DATE OF JUDGMENT: 19/03/1951

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI DAS, SUDHI RANJAN

CITATION:  1951 AIR  207            1951 SCR  312  CITATOR INFO :  R          1959 SC 118  (8)  D          1959 SC 433  (8)  R          1961 SC 986  (7)  RF         1963 SC 765  (19)  RF         1964 SC1541  (8)  R          1966 SC 220  (4)  R          1966 SC 595  (19)  RF         1972 SC2639  (35)  RF         1977 SC2401  (7)  R          1978 SC 188  (7)  R          1979 SC 777  (14)

ACT:      Indian Penal Code (XLV of 1860), ss. 161,   165--Crimi- nal  Procedure Code, 1898, ss. 190, 197--Prevention of  Cor- ruption  Act (11 of 1947), ss. 3, 6--Offence. under ss.  161 and 165, I.P.C.--Warrant issued by Magistrate during  inves- tigation  by police--Sanction under s. 197,  Cr. P.C.,   not obtained  before  issuing  warrant-Legality  of  trial--When Magistrate takes "cognisance" of offence.

HEADNOTE:     Under s. 3 of the Prevention of Corruption Act. 1947, an offence  punishable  under s. 161 or s. 165  of  the  Indian Penal Code 313 is  a  cognisable offence for the purposes of  the  Criminal Procedure  Code  subject to the condition  that  the  police shall  not investigate without an order of a  magistrate  of the  first  class or make an arrest without a  warrant;  and when the police apply for a warrant of arrest during  inves- tigation  under  s.  3 of the said Act  and  the  magistrate issues a warrant, he is not deemed to have taken  cognisance of the case under s. 190 of the Criminal Procedure Code  and the fact that sanction of the Government under s. 197 of the Criminal  Procedure  Code had not been obtained  before  the warrant  was  issued would not vitiate  the  trial.   Having regard to the wording of s. 3 of the said Act the view  that the magistrate can issue a warrant only after taking congni- sance of the offence under s. 190 of the Criminal  Procedure Code, is unsound.

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   Before it can be said that a magistrate has taken cogni- sance  of  an offence under s. 190 (1) (a) of  the  Criminal Procedure  Code, he must not only have applied his  mind  to the  contents of the petition but have done so for the  pur- pose  of proceeding under s. 200 and the  subsequent  provi- sions  of  the  Code.  Where he applied his  mind  only  for ordering investigation or issuing a warrant for purposes  of investigation he cannot be said to have taken cognisance  of the offence.     Emperor v. Sourindra Mohan Chuckerbutty (I.L.R. 37  Cal. 412) distinguished.  Observations of Das Gupta J. in  Super- intendent and Remembrancer of Legal Affairs, West Bengal  v. Abani Kumar Banerjee (A.I.R. 1950 Cal. 437) approved. Gopal Mandari v. Emperor (A.I.R 1943 Pat. 245) referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Appeal (Criminal Appeal No.  1 of 1950) by special leave from an order of  the  High Court of Allahabad.     N.P.  Asthana, and N.C. Chatterjee (K.B.  Asthana,  with them) for the appellant.     P.L. Banerjee  (Sri Ram,  with him)  for the respondent.     1951.   March 19.  The judgment of the Court was  deliv- ered by     KANIA C.J.--This is an appeal by  special leave  against an order of the Allahabad High Court dismissing the revision petition  of the appellant against the order of the  Special Magistrate  refusing to quash the proceedings on the  ground that  the  prosecution  of the appellant  inter  alia  under sections 161 and 165 of 314 the  Indian Penal Code was illegal and without  jurisdiction in  the  absence  of the sanction of  the  Government  under section 107 of the Criminal Procedure Code and section 6  of the  Prevention of Corruption. Act (II of  1947),  hereafter referred  to as the Act.  The material facts are these.   In 1947  the appellant held the office of Regional Deputy  Iron and Steel Controller, Kanpur Circle, U.P., and was a  public servant.   The police having suspected the appellant  to  be guilty of the offences mentioned above applied to the Deputy Magistrate, Kanpur, for a warrant of his arrest on the  22nd of  October,  1947, and the warrant was issued on  the  next day.   The  appellant was arrested on the 27th  of  October, 1947, but was granted bail.  On the 26th of November,  1947, the District Magistrate cancelled his bail as the Magistrate considered that the sureties were not proper.  On the 1st of December,  1947, the Government appointed a  Special  Magis- trate to try offences under the Act and on the 1st December, 1947,  the appellant was produced before the Special  Magis- trate  and  was  granted bail. The  police  continued  their investigation.   On the 6th of December, 1948, sanction  was granted by the Provincial Government to prosecute the appel- lant inter alia under sections 161 and 165 of of the  Indian Penal Code.  On the 31st January, 1949, sanction in the same terms was granted by the Central Government. In the meantime as  a result of an appeal made by the appellant to the  High Court of Allahabad the amount of his bail was reduced and on the 25th of March, 1949, the appellant was ordered to be put up before the Magistrate to answer the charge-sheet  submit- ted by the prosecution.     On  behalf of the appellant it is argued that  when  the warrant  for his arrest was issued by the Magistrate on  the 22nd of October, 1947, the Magistrate took cognizance of the

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offence  and,  as  no sanction of the  Government  had  been obtained before that day, the initiation of the  proceedings against him, which began on that day without the sanction of the  Government,  was illegal. It is argued  that  the  same proceedings  are  continuing against him and  therefore  the notice to 315 appear before the Magistrate issued on 25th March, 1949,  is also illegal.  In support of his contention that the  Magis- trate  took cognizance of the offences on 22nd March,  1947, he relies principally on certain observations in Emperor  v. Sourindra Mohan Chuckerbutty(1).     It  is therefore necessary to determine when the  Magis- trate  took cognizance of the offence. The relevant part  of section   190  of  the  Criminal  Procedure  Code  runs   as follows:--     190. (1)"Except as hereinafter provided, any  Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence--     (a) upon receiving a complaint of facts which constitute such offence;     (b)  upon a report in writing of such facts made by  any police officer;     (c) upon information received from any person other than a  police officer, or upon his own knowledge  or  suspicion, that such offence has been committed..."     It  is  clear from the wording of the section  that  the initiation of the proceedings against a person commences  on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section.  The first contingency  evidently is in respect of  non-cognizable  of- fences  as  defined in the Criminal Procedure  Code  on  the complaint  of   an  aggrieved person.  The second  is  on  a police  report, which evidently is the case of a  cognizable offence  when the police have completed their  investigation and come to the Magistrate for the issue of a process.   The third  is  when the Magistrate himself takes  notice  of  an offence and issues the process.  It is important to remember that  in respect of any cognizable offence, the  police,  at the  initial stage when they are investigating  the  matter, can arrest a person without obtaining an   (1) I.L.R. 37 Cal. 412. 41 316 order  from  the  Magistrate. Under section  167(b)  of  the Criminal Procedure Code the police have of course to put  up the  person so arrested before a Magistrate within 24  hours and  obtain  an order of remand to police  custody  for  the purpose  of further investigation, if they so  desire.   But they  have the power to arrest a person for the  purpose  of investigation  without  approaching  the  Magistrate  first. Therefore in cases of cognizable offence before  proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested  by the police without an order by the Magistrate.  It may  also be noticed that the Magistrate who makes the order of remand may be one who has no jurisdiction to try the case.     The  offences  for which the appellant  is  charged  are under the Criminal Procedure Code non-cognizable and  there- fore if the matter fell to be determined only on the  provi- sions of the Criminal Procedure Code the appellant could not be arrested without an order of the Magistrate.   The  posi- tion  however is materially altered because of section 3  of the Act which runs as follows:--

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   3.  "An offence punishable under section 161 or  section 165 of the Indian Penal Code shall be deemed to be a cogniz- able offence for the purposes of the Code of Criminal Proce- dure,  1898, notwithstanding anything to the  contrary  con- tained therein.     Provided that a police officer below the rank of  Deputy Superintendent  of  Police shall not  investigate  any  such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant."     It therefore follows that for the  Prevention of Corrup- tion Act, offences under sections 161 and 165 of the  Indian Penal  Code become cognizable, notwithstanding what is  pro- vided  in the Criminal Procedure Code.  The proviso to  sec- tion 3 of the Act puts only two limitations on the powers of the police in connection with the investigation relating  to those offences under the Act.  They are: (1) that the inves- tigation 317 should  be conducted by an officer not below the rank  of  a Deputy  Superintendent of Police unless a Magistrate of  the first class otherwise orders; and (2) if an arrest has to be made  an  order of the Magistrate has to  be  obtained.  The important point to be borne in mind is that the order of the Magistrate, which has to be obtained, is during the time the police  is  investigating the case and not  when  they  have completed  their investigation and are initiating  the  pro- ceedings  against the suspected person under section 190  of the Criminal Procedure Code.  The order which may be applied for  and made during the police investigation by  virtue  of section 3 of the Act is therefore before the Magistrate  has taken  cognizance of the offence under section 6 of the  Act or section 190 of the Criminal Procedure Code. That  appears to us to be the result of reading sections 3 and 6 of Act II of 1947 and section 190 of the Criminal Procedure Code  read with the definition of cognizable offence in the Code.     The  argument of the appellant is that when  the  Magis- trate  issued  the warrant in October, 1947, he  did  so  on taking cognizance of the offence under section 161 or 165 of the  Indian  Penal Code under section 190  of  the  Criminal Procedure  Code. It was contended that without  such  cogni- zance the Magistrate had no jurisdiction to issue any  proc- ess as that was the only section which permitted the  Magis- trate  to  issue  a process against a  person  suspected  of having  committed an offence.  In our opinion having  regard to  the wording of section 3 of the Act the assumption  that the Magistrate can issue a warrant only after taking  cogni- zance  of  an offence under section 190  of   the   Criminal Procedure Code is unsound.  The proviso to section 3 of  the Act  expressly  covers the case of a  Magistrate  issuing  a warrant for the arrest of a person in the course of investi- gation  only  and  on the footing that it  is  a  cognizable offence.  Section 3 of the Act which makes an offence  under section  161 or 165 of the Indian Penal Code cognizable  has provided  the two safeguards as the proceedings are  contem- plated against a public servant. But because of these  safe- guards it 318 does  not follow that the warrant issued by  the  Magistrate under  section 3 of the Act is after cognizance of  the  of- fence,  and  not during the course of investigation  by  the police  in respect of a cognizable offence. The only  effect of  that proviso is that instead of the police  officer  ar- resting  on his own motion he has got to obtain an order  of the  Magistrate for the arrest. In our opinion, it is  wrong from  this feature of section 3 of the Act alone to  contend

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that  because  the warrant is issued it must  be  after  the Magistrate  has taken cognizance of it and the  Magistrate’s action can be only under section 190 of the Criminal  Proce- dure Code. The material part of section 197 of the  Criminal Procedure Code provides that where any public servant who is not  removable  from his office save with  the  sanction  of Government  is  accused of an offence alleged to  have  been committed  by him while acting or purporting to act  in  the discharge  of his official duty, no court shall take  cogni- zance  of such offence except with the previous sanction  of the  appropriate Government. This section read as  following section 190 shows that the word ’cognizance’ in this section indicates  the stage of initiation of proceedings against  a public servant. Sections 190 to 199-B of the Criminal Proce- dure Code are grouped together under the caption "Initiation of proceedings". The sections dealing with the stage of  in- vestigation by the police in the case of cognizable offences are  quite different. Under section 6 of the Act it is  pro- vided  that  no court shall take cognizance  of  an  offence punishable  under  section 161 or 165 of  the  Indian  Penal Code   ......   alleged to have been committed by  a  public servant except with the previous sanction of the appropriate Government.  Reading  sections 197 and 190 of  the  Criminal Procedure Code and section 6 of the Act in the light of  the wording  of the proviso to section a, it is therefore  clear that  the  stage at which a warrant is asked for  under  the proviso to section 3 of the Act is not on cognizance of  the offence  by  the Magistrate as contemplated   by  the  other three sections. 319 Learned  counsel for the appellant relied on  some  observa- tions  in  Emperor v. Sourindra Mohan Chuckerbutty  (1),  in respect  of the interpretation of the word ’cognizance’.  In that case, on the 24th April, 1909, a dacoity took place  at N  and  on the same day the police sent up a report  of  the occurrence to the Sub-divisional officer of Diamond Harbour. On the 2nd September one of the accused was arrested and  he made  a confession on the 18th October. The case was  subse- quently transferred by  the District  Magistrate of Alipore- to  his  own file and on the 20th January,  1910,  an  order under  section 2 of the Criminal Law Amendment Act  (XIV  of 1908)  was  issued in the following  terms:--  "Whereas  the District Magistrate of the 24-Parganas has taken  cognizance of  offences under ss. 395 and 397, I.P.C., alleged to  have been committed by the persons accused in the case of Emperor v. Lalit Mohan Chuckerbutty and others  ......  and  whereas it appears to the Lieutenant-Governor of Bengal...the provi- sions  of  Part 1 of the Indian Criminal Law  Amendment  Act should be made to apply to the proceedings in respect of the said  offences, now, therefore, the  Lieutenant  Governor... directs...that  the provisions of the said Part shall  apply to the said case." S surrendered on the 24th of January  and was  arrested by the police and put before the Joint  Magis- trate of Alipore who remanded him to Jail.  Applications for bail  on his behalf were made but they were  dismissed.  The Sessions Judge was next moved unsuccessfully for bail  under section 498 of the Criminal Procedure Code. S then moved the High  Court for a Rule calling upon the District  Magistrate to show cause why bail should not be granted on the  grounds (1) that no order had been made applying Act XIV of 1908 and (2)  that  there  did not appear any  sufficient  cause  for further  inquiry into the guilt of S. The  first  contention rested  on the assertion that the Magistrate had  not  taken cognizance of the offence of dacoity on the 20th of January. The  learned  Judges pointed out that the argument  was  ad-

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vanced  because  the legal adviser of S had (1) 1. L.R. 37 Cal. 412. 320 SUPREME COURT REPORTS no opportunity to see the record of the case.  On the  facts it was clear that the Magistrate had taken cognizance of the offence  on  the 20th of January. The  observations  "taking cognizance  does  not involve any formal  action  or  indeed action  of any kind but occurs as soon as a.  magistrate  as such  applies  his mind to the suspected  commission  of  an offence"  have  to be read in the light of these  facts.  As noticed above, the magistrate had expressly recorded that he had  taken cognizance of the case and thereupon  the  provi- sions of the Criminal Law Amendment Act were made applicable to the case.  The question argued before the High Court  was in  respect  of the power of the High Court  to  grant  bail after the provisions of the Criminal Law Amendment Act  were applied to the case.  In our opinion therefore that decision and the observations therein do not help the appellant.     In  Gopal Marwari v. Emperor (1),  it was observed  that the  word  ’cognizance’is used in the Code to  indicate  the point  when the Magistrate or a Judge first  takes  judicial notice  of  an offence.  it is a different  thing  from  the initiation of proceedings.  It is the condition precedent to the  initiation of proceedings by the Magistrate. The  court noticed  that  the word ’cognizance’is a  word  of  somewhat indefinite  import  and  it is perhaps not  always  used  in exactly the same sense.     After  referring to the observations in Emperor v.  Sou- rindra Mohan Chuckerbutty (2), it was stated by Das Gupta J. in  Superintendent and Remembrancer of Legal  Affairs,  West Bengal  v. Abani Kumar Banerjee (3) as follows :--" What  is taking  cognizance  has  not been defined  in  the  Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any  magistrate  has taken cognizance of any  offence  under section  190 (1) (a), Criminal Procedure Code, he  must  not only  have applied his mind to the contents of the  petition but he must have done so for the purpose  (1)  A.I.R. 1943 Pat. 245.           (3) A.I.R.  1950  Cal. 437.  (2) I. L. R. 37 Cal. 412. 321 of proceeding in a particular way as indicated in the subse- quent  provisions of this Chapter--proceeding under  section 200  and thereafter sending it for inquiry and report  under section  202.  When the magistrate applies his mind not  for the  purpose of proceeding under the subsequent sections  of this  Chapter,  but for taking action of  some  other  kind, e.g.,  ordering  investigation  under section  156  (3),  or issuing  a search warrant for the purpose of the  investiga- tion,  he  cannot be said to have taken  cognizance  of  the offence."   In our opinion that is the correct  approach  to the question before the court.     Moreover,  in the present case on the 25th March,  1949, the  Magistrate  issued a notice under section  190  of  the Criminal  Procedure Code against the  appellant and made  it returnable on the 2nd of May, 1949.  That clearly shows that the  Magistrate took cognizance of the offence only on  that day  and acted under section 190 of the  Criminal  Procedure Code.  On the returnable date the appellant  contended  that the  sanction of the Central Government was void because  it was  not given by the Government of the State. On the  deci- sion going against him he appealed to the High Court and  to the  Privy Council. The appellant’s contention  having  thus

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failed, the Magistrate proceeded with the trial on the  26th of November, 1949.  The only question which is now presented for our decision therefore is whether there was any sanction granted by the Government before the Magistrate took  cogni- zance of the offence and issued the notice under section 190 of  the Criminal Procedure Code On the 25th March, 1949.  To that  the clear answer is that the Government had given  its sanction  for the prosecution of the appellant  before  that date.  It seems to us therefore that the appellant’s conten- tion  that  the  Magistrate had to take  cognizance  of  the offences without the previous sanction of the Government  is untenable and the appeal fails.                      Appeal dismissed. Agent for the appellant: S.S. Shukla. Agent for the respondent: C.P. Lal. 42 322