R.R. Chari v. The State of Uttar Pradesh

Ultu PT..Ush,

C.J. Act (II of 1947), hereafter· referred to as the Act. The lr•nic 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 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 . 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, the Government appointed a Special Magistrate 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 prosecu-te the appellant inter alia under sections 161 and 165 of the Indian Penal Code. On 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.

On behalf of the appellant it is argued that when the warrant for his arrest was issued by the Magistrate on the ~2nd of October, 1947, the Magistrate took cognizance of the 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 saine proceedings arc continuing against him and thercfofe the notice to appear before the Magistrate issued on 25th March, 1951 1949, is also illegal. In suppon of his contention that R.R. Chari the Magistrate took cognizance of the offences on 22nd v. TA• State ef March, 1947, .he relies principally on certain observa-Uttar Pr11t/esh. tions in Emperor v. Sourindra Mohan Chuckerbutty(1). Kaaia C.J.

It is therefore necessary to determine when the Magistrate 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 Presi-dency Magistrate, District Magistrate or Sub-divisio-nal Magistrate and 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 the 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 in the section. The first contingency evidently is in respect of non-cogQizable offences 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 -0ff ence and issues the process. It is important to 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

(ll J,L.R, 37 Cal. 412.

1951 order from the Magistrat.e. Under section 167(b) of R.R.Cltmi the Criminal Procedure Code the police have of courte

v. to put -up the person so arrested before a Magistrate TAIStattqf within 24 hours and obtain an order of remand to Ut1ar Pradesh.

police custody for the purpose of further investigation, K'ania C.j. 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 the Criminal Procedure Code the appellant tould not be arrested without an order of the Magistrate. The position however is materially altered because of section 3 of the Act which runs as follows:- 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, 1898, notwithstanding any-thing to the contrary contained therein.

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-standing what is provided in the Criminal Procedure Code. The proviso to section 3 of the Act puts only two limitations on the powers of the police in connec-tion with the investigation relating to those offences under the Act. They are: ( l) that the investigation should be conducted by an officer not below the rank 1951 of a Deputy Superintendent of Police unless a Magis-R.R.ChMi trate of the first class otherwise orders; and (2) if an v. Th• Stat1 of arrest has to be made an order of the Magistrate has to Ultar PrllUs/i. be obtained. The important p9int to be borne in mind Kanio.C.j. 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 proceedings aga-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 the definition of cognizable offence in the Code.

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 or 165 of the Indian Penal Code under section 190 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 which permitted the Magistrate 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 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 issuing a warrant for the arrest of a person in the 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 t Penal Coae cognizable has provided the two safe.·

guards as the proceedings are contemplated against a public servant. But because of these safeguards it 1951 •. does not follow that the warrant issued by the Magis-lf,R;C~ trate under section 3 of the Act is after cognizance of Tl• S1.t1qf the offence, and not during the course of investigation UtN1 Pi-ad,s4. by the police in respect of a cognizable offence. The Kai• C.j. only effect of that proviso is that instead of the police

officer arresting on his own motion he has got to our ob-tain an order of the Magistrate for the arrest. In opinion, it is w.rong from this featblre of section 3 of 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 'cognizance' in this sect-ion indicates the 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 three sections.

Learned counsel for the appellant relied on some 1951 observations in Emperor v. Sourindra Mohan Chucker-R.R. Cliari butty(1 ), in respect of the interpretation of the word v. Th1St11t1 ef 'cognizance'. In that case, on the 24th April, 1909, a Uttar Pradesh. dacoity took place at N and on the same day the police E1mic C.J. 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-sion on the 18th October. The case was subsequently 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 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 others_. .... and whereas it appears to the Lieutenant-Governor of Bengal. ... the provisions J of Part 1 of the Indian Criminal Law Amendment

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 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 in-to the guilt of S. The first contention rested on the assertion that the Magistrate had not taken cogni-zance of the offence of dacoity on the 20th of January.

The learned Judges pointed out that the argument was advanced because .the legal adviser of S had

(l} I. L. R. 37 Cal. +12.

1951 no opportunity to see the record of the case. On R.R. Chari the facts . it was clear that tl1e Magistrate had taken

v. cognizance of the offence on the 20th of January. TMS1attof The observations "taking cognizance does not involve Uttar PtadelfJ,

J. any formal action or indeed action of any kind but K'Onia C. 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 provisions of the Criminal Law Amendment Act were m:.de 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('), it was observed that the word 'cognizance' is ustd in the Code to indicate the point when the· Magistrate or a Judge first takes judicial notice of an offence. It is a differ- . ent 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. Sourir.dra Mohan Chulcerbutty(2}, it was 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 been defined in the Criminal Procedure Code and I 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 section 190(1) ta), 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.LR.1943!'at.245, (3) A.I.R.1950 Cal.437. (2) I. L. R. 37 Cal.412;

of proceeding in a partieular way as indicated in the R.R. Chari subsequent provisions of this Chapter-proceeding un-v. der section 200 and thereafter sending it for inquiry TkeStateof Uttar Pradesh. and report under section · 202. When the magistrate applies his mind not for the purpose of proceeding Fiania C.J. under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering inves-tigation under section 156(3), or issuing a search warrant for the purpose of the investigation, 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 decision going against 1iim he appealed to the High Court and to the Privy Council. The appellant's contention having thus 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 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 sanction for the prosecution of the appellant before that date. It seems to us therefore that the appel-lant's contention 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.

CRIMINAL APPELLATE JURISDICTION: Appeal {Cri-minal 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 ' (Shri Ram, with him) for the respondent.

1951. March 19. The judgment of the Court was delivered by

KANIA C.J.-This 1s an appeal by special leave ....... c.3. 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 1951· the Indian Penal Code was illegal and without juris-R. l!. Ck'!fi diction in the absence of the sanction of the Govern-

v. ment under section 197 of the Criminal Procedure Ths Stateqf Code and section 6 of the Prevention of Corruption