# [1951] 1 S.C.R. 312

- **Citation:** [1951] 1 S.C.R. 312
- **Court:** Supreme Court of India
- **Decided:** 1949-01-31
- **Case number:** Appeal {Criminal Appeal No. 1 of 1950
- **Bench:** SHIU Rum.AL KANIA C.J, Patanjali Sastri, Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1951-1-s-c-r-312-84
- **Pages:** 10

## Headnote

Indian· Penal Code
(XLV of 1860),
SI. 161.
165-Criminal
l'rocedure Code, 1898, ss. 190, 197-Preveniion of Corruption Act
(II of 1947), ss. 3, 6-0fjence under ss. 161 and 165, l.P.C.-Warra.nt issued by Magistrate during investigation by
police-Sanction
under s. 197, Cr. P. C., not obtained before iS1uing warrantLe11ality of trial-When Magistrate takes "cognisance" of offence.
Un«r •·
~ of the Prevention of Corruption Act,
1947, an
offcnc:c pllnishable under •· 161 or s. 165 of the Indian Penal Code
S.C.R.
SUPREME COURT REPORTS
313
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 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
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 the
petition but have
done so for the
purpose of proceeding
under
s. 200 and the subsequent provisions 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 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
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 ' (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
ctgainst 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
1951
R.R. Chari
v.
Tht Stott ef
Uttar .Pradesh.
....... 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 jurisdiction in the absence of the sanction of the Government 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
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 Magistrate

## Text

1951
Santosh .Kumar
Jain
...
Th1Stal1
P111anjali
SastriJ.
1'51
Muabl9.
312
SUPREME COURT REPORTS
[1951]
person. The decision was reversed and Lord Thankerton, delivering the judgment of the Board, observed :
"In the opinion of their Lordships, the function of subsection (2) is merely an illustrative one; the rule-making
power is conferred by sub-section (1), and "the rules"
which are referred to in the opening sentence of subsection (2) are the rules which are authorised by, and
made under, sub-section ( 1) ; the provisions of sub-section (2) are not restrictive of sub-section (1), as, indeed
is expressly stated by the words "without prejudice to
the generality of the powers conferred by sub-section (1)". "There can be no doubt-as the learned
Judge
himself
appears
to have thought-that
the
general language of sub-section (1) amply justifies the
terms of rule 26, and avoids any of the criticisms
which the learned Judge expressed in relation to subsection (2) ".
This accords with our view of the effect of subsections (l) and (2) of section 3 of the Act.
The appeal is dismissed. The appellant's bail bond
is cancelled and he is ordered to surrender.
Appeal dismissed.
Agent for the appellant: Rajinder Narain.
Agent for respondent and Intervener: P. A. Mehta.
R.R. CHARI
"·
THE STATE OF UTTAR PRADESH
[SHIU Rum.AL KANIA C.J, PATANJALI SASTRI
and DAS JJ.)
Indian· Penal Code
(XLV of 1860),
SI. 161.
165-Criminal
l'rocedure Code, 1898, ss. 190, 197-Preveniion of Corruption Act
(II of 1947), ss. 3, 6-0fjence under ss. 161 and 165, l.P.C.-Warra.nt issued by Magistrate during investigation by
police-Sanction
under s. 197, Cr. P. C., not obtained before iS1uing warrantLe11ality of trial-When Magistrate takes "cognisance" of offence.
Un«r •·
~ of the Prevention of Corruption Act,
1947, an
offcnc:c pllnishable under •· 161 or s. 165 of the Indian Penal Code
S.C.R.
SUPREME COURT REPORTS
313
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 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
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 the
petition but have
done so for the
purpose of proceeding
under
s. 200 and the subsequent provisions 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 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
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 ' (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
ctgainst 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
1951
R.R. Chari
v.
Tht Stott ef
Uttar .Pradesh.
....... 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 jurisdiction in the absence of the sanction of the Government 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
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 Magistrate 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 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 chargcsheet 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
S.C.R.
SUPREME COURT REPORTS
315
appear before the Magistrate issued on 25th March,
1949, is also illegal. In suppon of his contention that
the Magistrate 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
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 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 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 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-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.
41
1951
R.R. Chari
v.
TA• State ef
Uttar Pr11t/esh.
Kaaia C.J.
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 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 Magistrat.e first.
Therefore in cases of cognizable 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 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
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
anything 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, · notwithstanding 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 connection with the investigation relating to those offences
under the Act. They are: ( l) that the investigation
<
\ •
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 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 p9int 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 proceedings
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 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 jurisdiction 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 Magistrate 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
R.R.ChMi
v.
Th• Stat1 of
Ultar PrllUs/i.
Kanio.C.j.
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 Magistrate 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 obtain an order of the Magistrate for the arrest.
In our
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 cognizance 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 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 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 servant.
Sections 190 to 199-B of the Criminal Procedure
Code are grouped together under the caption "Initiation of proceedings". The sections dealing with the'
. stage of investigation by the police in the case of cognizable offences are quite, different. T bder section 6 of
the Act it is provided 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 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.
J
S.C.R.
SUPREME COURT REPORTS
319
Learned counsel for the appellant relied on some
observations 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 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 persons 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
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 arrest.cd by the police and
put before the Joint Magistrate 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 advanced because .the legal adviser of S
had
(l} I. L. R. 37 Cal. +12.
1951
R.R. Cliari
v.
Th1St11t1 ef
Uttar Pradesh.
E1mic C.J.
1951
R.R. Chari
v.
TMS1attof
Uttar PtadelfJ,
K'Onia C. J.
320
SUPREME COURT REPORTS
[1951]
no opportunity to see the record of the case. On
the facts . it was clear that tl1e 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
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 Banerjee(") 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;
S.C.R.
SUPREME COURT REPORTS
321
of proceeding in a partieular way as indicated in the
subsequent 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 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 Criminal 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
appellant'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.
1951
R.R. Chari
v.
TkeStateof
Uttar Pradesh.
Fiania C.J.