Santosh .Kumar v. Tht Stott ef

is a cognisable offence for the purposes of the Crimnial 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 ar'rest without a warrant; and when the police apply for a warrant of arrest during investigation under s. 3 of the said Act and the magistrate issues a warrant, he is not deemed to have 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 wa:s 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 cognisance of the offence under s. 190 of the Criminal Procedure Code, is unsound. Before it can be said that a . magistrate has taken . cognisance of an offence under s. 190 (l)(a) of the Criminal Procedure Code, he must not only have applied his mind to rhie contents of petition but have done so for the purpose of proceeding under s. 200 and the subsequent provisions of the Code. Where he for ordering investigation or issuing a applied his mind only investigation he cannot be said to have warrant for purposes of taken cognisance of the offence. Emperor v. Sourindra Mohan Chuckel'butty (I.L.R. 37 Cal. '412) clistinguished. Observations of Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Ban'er; ee (A.LR. 1950 Cal. 4.37) approved. Gopal Mandari v. Emperor (A.LR. 1943 Pat. 245) referred to. CRIMINAL JURISDICTION: Appeal {Cri- minal Appeal No. 1 of 1950) by special leave from an order of the High Court of Allahabad. APPELLATE N. P. Asthana and N. C. Chatterjee (K. B. Asthana, with them) for the appellant. P. L. Banerjee ' (Shri Ram, with him) respondent.

#1951. March 19. The judgment of the Court was delivered by KANIA C.J.-This 1s an appeal ctgainst an order of the Allahabad High Court dis missing ·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 special ....... c.3. 1951· R. l!. Ck'!fi v. Ths Stateqf Ultu PT..Ush, lr•nic C.J. ~14 SUPREME COURT REPORTS [1951] the Indian Penal Code was illegal and without juris diction in the absence of the sanction of the Govern ment under section 197 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 tjie office of Regional Deputy Iron and Steel Controller, Kanpur Circle, U.P., and was a public servant. The to be guilty of police having suspected the appellant 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 . ball. 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, Government appointed a Special Magistrate 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 investigation. On the 6th of December, 1948, sanction was granted by the Provincial Government to prosecu te the appellant inter alia under sections 161 and 165 the 31st January, 1949, sanction in the saine 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 chargc sheet submitted by the prosecution. Indian Penal Code. On the ~2nd of October, 1947, On behalf of the appellant it is argued that when the warrant for his arrest was issued by the Magistrate cognizance of the offence and, as no sanction of the Government had been obtained before initiation of the proceedings against him, which began on that day without the sanction of the Government, that the saine proceedings was illegal. arc continuing against him and thercfofe the notice to the Magistrate It is argued that day, S.C.R. SUPREME COURT REPORTS 315 the Magistrate issued on 25th March, appear before In suppon of his contention 1949, is also illegal. the Magistrate took cognizance of the offences on 22nd March, 1947, .he relies principally on certain observa tions in Emperor v. Sourindra Mohan Chuckerbutty(1). 1951 R.R. Chari v. TA• State ef Uttar Pr11t/esh. Kaaia C.J. It is therefore necessary Magistrate took cognizance of the offence. The relevant part of section 190 of the Criminal Procedure Code runs as follows :- to determine when

#190. ( 1) "Except as hereinafter provided, any Presi dency Magistrate, District Magistrate or Sub-divisio nal Magistrate any other Magistrate specially empowered in this behalf, may take cognizance of any offence-- (a) upon receiving a complaint of facts which con stitute such offence; (b) upon a repori: 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 initiation of the proceedings against a person com mences on the cognizance of the offence by the Magis trate under one of the three contingencies mentioned the section. The first contingency evidently is respect of non-cogQizable offences as defined Criminal Procedure · Code on· the complaint of an aggrieved person. . The second is on ·a police report, which evidently 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 the process. -0ff ence and remember that in respect of any · cognizable . offence, the police, at the initial stage when they arc investigating the . matter, can arrest a person without obtaining an important issues It (ll J,L.R, 37 Cal. 412. 41 1951 R.R.Cltmi v. TAIStattqf Ut1ar Pradesh. K'ania C.j. 316 SUPREME COURT REPORTS [1951] order from the Magistrat.e. Under section 167(b) of the Criminal Procedure Code the police have of courte to put - up the person so arrested before a Magistrate within 24 hours and obtain an order of remand 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 appro aching the Magistrat.e first. Therefore in cases of cog nizable offence before proceedings arc initiated and while the matter is under investigation by the police tht suspected person is liable to be arrested by the police without an order by the Magistrat.e. It may also be no ticed that the Magistrate who makes the order of rem and 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 therefore -if the matter fell to be determined only on the provisions of appellant tould not be arrested without an order of the Magistrate. The position however is materially altered because of runs as follows:- the Criminal Procedure Code the Act which section 3 of

#3. "An offence punishable under section 161 or section l65 of the Indian Penal Code shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, thing to the contrary contained therein. 1898, notwithstanding Provided that a police officer bClow 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." Jt therefore follows ·.that for the Prevention of Corruption Act, offences under sections 161 and 165 of the Indian Penal Code become cognizable, · notwith the Criminal Procedure standing what is provided in the Act puts only Code. The proviso to section 3 of two limitations on the powers of the police in connec those offences tion with the investigation investigation under the Act. They are: relating ( l) 1951 R.R.ChMi v. Th• Stat1 of Ultar PrllUs/i. Kanio.C.j. S.C.R. SUPREME COURT REPORTS 317 should be conducted by an officer not below the rank of a Deputy Superintendent of Police unless a Magis trate 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 p9int to be borne in mind 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 inst the suspected person under section 190 of the Cri minal Procedure Code. The order which may be app lied 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 pr<> cedure 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 definition of cognizable offence in the Code. initiating the proceedings the Magistrate The argument of the . appellant is that when the Magistrate issued the warrant in October, 1947, he did so on taking cognizance of the offence under section 161 190 or 165 of the Indian Penal Code under section of the Criminal Procedure Code. It was contended that without such cognizance the Magistrate had no juris diction to issue any process as that was the only section issue a process. which permitted 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 Magis trate can issue a warrant only after taking cognizance 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 the arrest of a person in the issuing a warrant for course of investigation 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 Coae cognizable has provided safe.· the proceedings are contemplated against a guards as public servant. But because of these safeguards < \ • t 1951 •. lf,R;C~ Tl• S1.t1qf UtN1 Pi-ad,s4. Kai• C.j. 318 SUPREME COURT REPORTS [19511 does not follow that the warrant issued by the Magis trate under section 3 of the Act is after cognizance of the offence, 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 arresting on his own motion he has got to ob In our tain an order of the Magistrate for the arrest. is w.rong from this featblre of section 3 of opinion, it the Act alone to contend that because the warrant i.j issued it must be after the Magistrate has taken cog nizance of it and· the Magistrate's action can 'be only under section 190 of the Criminal Procedure Code. The mateaa1 part of section 197 of the Criminal Pro cedure 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 pur~ porting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the appropriate Government. This section read as following section 190 shows that the word stage of initation of proceedings against a public ser vant. Sections 190 to 199-B of the Criminal Procedure Code are grouped together under the caption "Initia tion of proceedings". The sections dealing with the' . stage of investigation by the police in the case of cogni zable offences are quite, different. T bder section 6 of the Act it is provided that no court shall take cogniz ance of an offence punishable under section 161 or 165 of the Indian Penal Code .... alleged to have been com mitted by a public servant except with the previous sanction of the appropriate Government. Reading sec tions 197 and 190 of the Criminal Procedure Code and section 6 o{ the . Act in the light of the wording of the proviso to section 3, 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 sections. 'cognizance' indicates sect-ion 1951 R.R. Cliari v. Th1St11t1 ef Uttar Pradesh. E1mic C.J. S.C.R. SUPREME COURT REPORTS 319 others_. .... and whereas Learned counsel for the appellant relied on some observations in Emperor v. Sourindra Mohan Chucker butty(1 ), in respect of the interpretation of the word In that case, on the 24th April, 1909, a 'cognizance'. 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 confes the 18th October. The case was subsequently sion on the District Magistrate of Alipore transferred by 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 3<Jl, r. P. C., alleged to have been committed by the per sons accused in the case of Emperor v. La/it Mohan Chttkerbutty and it appears to the Lieutenant-Governor of Bengal. ... the provisions the Indian Criminal Law Amendment of Part 1 of Act should be made to apply to the proceedings in res pect of the said offences, now, therefore, the Lieuten ant-Governor. . . directs ... that the provisions of the said Part shall apply to the said case." S surrendered on the 24th of January and was arrest.cd by the police and put before the Joint Magistrate of Alipore who reman ded him to Jail. Applications for bail· on his behalf they were dismissed. The Sessions were made but 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 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 to the guilt of S. The first contention rested on the taken cogni assertion that the Magistrate had not zance of the offence of dacoity on the 20th of January. The learned Judges pointed out that the argument legal adviser of S had was advanced because .the (l} I. L. R. 37 Cal. +12. J 1951 R.R. Chari v. TMS1attof Uttar PtadelfJ, K'Onia C. J. 320 SUPREME COURT REPORTS [1951] to see the record of the case. On no opportunity the facts . it was clear that tl1e Magistrate had the 20th of January. cognizance of the offence on 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 the suspected commission of an offence" have to be read in the light of these facts. As noticed above, the magistrate had expressly · recorded he had taken cognizance of the case and thereupon the provisions of the Criminal Law Amendment Act were the case. The question argued m:.de applicable before the High Court was in respect of the power of the provisions- of the High Court to grant bail after the Criminal Law Amendment Act were applied In our opinion therefore that decision and the case. the observations therein do not help the appellant. . ent thing from is ustd the word 'cognizance' the point when In Gopal Marwari v. Emperor('), it was observed in the Code to the· Magistrate or a Judge indicate first takes judicial notice of an offence. It is a differ- the condition precedent to the initiation of proceedings the word by the Magistrate. The court noticed 'cognizance' is a word of somewhat import and it is perhaps not always used same sense. the initiation of proceedings. indefinite in exactly It }, it was After referring to the observations in Emperor v. Sourir.dra Mohan Chulcerbutty( 2 stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kum11r Baner jee(") as follows :-''What is taking cognizance has not in the Criminal Procedure Code and I been defined have no desire to attc!npt 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 ta), Criminal Procedure Code, he must section 190(1) to the contents of not only have applied his mind the petition but he must have done so for the purpose (1) A.LR.1943!'at.245, (2) I. L. R. 37 Cal.412; (3) A.I.R.1950 Cal.437. S.C.R. SUPREME COURT REPORTS 321 of proceeding in a partieular way as indicated in the subsequent provisions of this Chapter-proceeding un der 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 inves issuing a search tigation under section 156(3), or warrant for the purpose of the investigation, he cannot be said In our opinion that is the correct approach to the question before the court. to have taken cognizance of the offence." 1951 R.R. Chari v. TkeStateof Uttar Pradesh. Fiania C.J. 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 decision going against 1iim he appealed to the High Court and to the Privy Council. The appellant's contention having failed, the Magistrate proceeded with the trial on the 26th of November, 1949. The only question which is now presented for our decision is whether there was any sanction granted by the Government before took cognizance of the offence and issued the notice under section 190 of the Crimi nal Procedure C.odc on the 25th March, 1949. To that the clear answer is that the Government had given its the prosecution of the appellant before sanction for that date. to us therefore that the appel lant's contention cognizance of the offences without the previous sanction of the Government is untenable and the appeal fails. Appeal dismissed. the Magistrate had the Magistrate It seems therefore Agent for the appellant: S. S. Shukla. Agent for the respondent: C. P. Lal.