R R CHARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal by special leave against an order of the Allahabad H. C, dismissing the revn. petn. of the applt. against the order of the Special Mag. refusing to quash the proceedings on the ground that the prosecution of the applt. inter alia u/Ss.161 and165, I. P. C. was illegal and without jurisdiction in the absence of the sanction of the Govt. u/S. 197, Cr. P. C. k s. 6, Prevention of Corruption Act (II [2] of 1947), hereafter refd. to as the Act. The material facts are these. In 1947 the applt, held the office of Regional Deputy Iron and Steel Controller, Kanpur Circle, U. P. and was a public servant. The police having suspected the applt. to be guilty of the offences mentioned above applied to the Deputy Mag., Kanpur, for a warrant of his arrest on 22-10-1947 and the warrant was issued on the next day. The applt. was arrested on 27-10-1947 but was granted bail. On 26-11-1947 the Dist. Mag. cancelled his bail as the Mag, considered that the sureties were not proper. On 1-12-1947 the Govt. appointed a Sp. Mag, to try offences under the Act and on 1-12-1947 the applt. was produced before the Sp. Mag. and was granted bail. The police continued their investigation. On 6-12-1948 sanction was granted by the Provincial Govt, to prosecute the applt. inter alia u/Ss. 161 and 165, I. P. C. On 31-1-1949 sanction in the same terms was granted by the Central Govt. In the meantime as a result of an appeal made by the applt. to the H. C. of Allahabad the amount of his bail was reduced and on 95-3-1949 the applt. was ordered to be put up before the Mag. to answer the charge-sheet submitted by the prosecution.

(2.) On behalf of the applt. it is contended that when the warrant for his arrest was issued by the Mag. on 29-10-1947 the Mag. took cognizance of the offence and as no sanction of the Govt. had been obtained before that day the initiation of the Proceedings against him, which began on that day without the sanction of the Govt. was illegal. It is argued that the same proceedings are continuing against him and therefore the notice to appear before the Mag. issued on 25-3-1949 is also illegal. In support of his contention that the Mag, took cognizance of the offences on 22-3-1947 be relies principally on certain observations in Emperor v. Sourindra Mohan 37 Cal. 412: (6 I.C.8). It is therefore necessary to determine when the Mag. took cognizance of the offence. The relevant part of S.190, Cr. P. C. runs as follows :

(3.) 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 Mag. under one of the three contingencies. mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in the Cr. P. C. on the complanit of an aggrieved person. The second is on a police report, which evidently is the case of a cognisable offence when the police have completed their investigation and come to the Mag. for the issue of a process. The third is when the Mag. himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognisable offence, the police, at the initial stage when they are investigating the matter can arrest a person without obtaining an order from the Mag. Under S. 167 (b), Cr. P. C. the police have of course to. put up the person so arrested before a Mag. 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 Mag. first. Therefore, in cases of cognisable 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 Mag. It may also be noted that the Mag. who makes the order or remand may be one who has no jurisdiction to try the case.