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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

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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

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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

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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.

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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

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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

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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.

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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.

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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.

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