R.R. Chari vs The State of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 1 of 1950

Decision Date: 19 March 1951

Coram: Hiralal J. Kania, M. Sastri, Patanjali Das, Sudhi Ranjan

In the matter titled R.R. Chari versus The State of Uttar Pradesh, the judgment was delivered on 19 March 1951 by the Supreme Court of India. The opinion was authored by Justice Hiralal J. Kania, who also served as Chief Justice of the Bench. The other judges named on the bench were Justice SASTRI, Justice M. Patanjali Das, and Justice Sudhi Ranjan. The petitioner in the case was R.R. Chari and the respondent was The State of Uttar Pradesh. The reported citations for the decision are 1951 AIR 207 and 1951 SCR 312. The case has been referenced in several law reports, including R 1959 SC 118 (8 D), R 1961 SC 986 (7 RF), RF 1963 SC 765 (19 RF), RF 1964 SC 1541 (8 R), R 1966 SC 220 (4 R), R 1966 SC 595 (19 RF), RF 1972 SC 2639 (35 RF), RF 1977 SC 2401 (7 R), R 1978 SC 188 (7 R), and R 1979 SC 777 (14). The statutes mentioned in the judgment are the Indian Penal Code (45 of 1860), specifically sections 161 and 165; the Criminal Procedure Code, 1898, specifically sections 190 and 197; and the Prevention of Corruption Act (11 of 1947), specifically sections 3 and 6.

The headnote of the judgment explains that, under section 3 of the Prevention of Corruption Act, 1947, an offence punishable under sections 161 or 165 of the Indian Penal Code is classified as a cognisable offence for the purposes of the Criminal Procedure Code. However, this classification is subject to the condition that the police may not commence an investigation without an order from a first-class magistrate, nor may they make an arrest without a warrant. When the police, during an investigation authorized by section 3 of the Act, apply to a magistrate for an arrest warrant and the magistrate issues the warrant, the magistrate is not deemed to have taken cognisance of the case under section 190 of the Criminal Procedure Code. Consequently, the failure to obtain the required government sanction under section 197 of the Criminal Procedure Code before the warrant is issued does not invalidate the trial.

The Court further observed that interpreting section 3 of the Act to require a magistrate to have taken cognisance of the offence under section 190 before issuing a warrant is incorrect. For a magistrate to be said to have taken cognisance under section 190(1)(a) of the Criminal Procedure Code, he must have examined the petition with the purpose of proceeding under section 200 and the subsequent procedural provisions. If the magistrate’s consideration is limited to ordering an investigation or issuing a warrant solely for investigative purposes, he has not taken cognisance of the offence. The Court distinguished the earlier decision in Emperor v. Sourindra Mohan Chuckerbutty (I.L.R. 37 Cal. 412) and approved the observations of Justice Das Gupta in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (A.I.R. 1950 Cal. 437). The case of Gopal Mandari v. Emperor (A.I.R. 1943 Pat. 245) was also referred to.

The judgment itself follows these principles and applies them to the facts of the present case.

In this matter, a special leave criminal appeal numbered one of nineteen fifty was filed against an order of the Allahabad High Court that had dismissed the appellant’s revision petition. The appellate proceedings were conducted on the nineteenth day of March, nineteen fifty-one, and the judgment was delivered by Chief Justice Kania. The appellant was represented by counsel appearing as Mr. Asthana together with a colleague, while the respondent was represented by counsel appearing as Mr. Banerjee with an assistant. The High Court’s dismissal concerned a revision petition that challenged a decision of a Special Magistrate who had refused to set aside the criminal proceedings initiated against the appellant. The appellant contended that the prosecution under sections one hundred sixty-one and one hundred sixty-five of the Indian Penal Code, as well as the provisions of the Prevention of Corruption Act of nineteen forty-seven, was unlawful because it proceeded without the mandatory sanction of the Government required by section one hundred seven of the Code of Criminal Procedure and by section six of the anti-corruption legislation.

The factual backdrop was as follows: in nineteen forty-seven the appellant occupied the post of Regional Deputy Iron and Steel Controller for the Kanpur Circle in Uttar Pradesh, thereby qualifying as a public servant. Police, suspecting the appellant of the offences mentioned, addressed an application to the Deputy Magistrate of Kanpur on the twenty-second day of October, nineteen forty-seven, seeking a warrant for his arrest. The magistrate issued the warrant on the following day, and the appellant was taken into custody on the twenty-seventh of October, although he was subsequently released on bail. On the twenty-sixth of November, the District Magistrate cancelled that bail on the ground that the sureties presented were inadequate. The Government then appointed a Special Magistrate on the first day of December, nineteen forty-seven, to try offences arising under the anti-corruption law, and the appellant was again produced before this magistrate and granted bail. Police investigations continued, and on the sixth of December, nineteen forty-eight, the Provincial Government granted sanction to prosecute the appellant under the contested sections of the Indian Penal Code. The Central Government extended an identical sanction on the thirty-first of January, nineteen forty-nine. While these sanctions were pending, the appellant appealed to the High Court, resulting in a reduction of his bail amount. On the twenty-fifth of March, nineteen forty-nine, the appellant was ordered to appear before the Special Magistrate to answer the charge-sheet filed by the prosecution. The appellant’s counsel advanced the argument that the magistrate had taken cognizance of the offence when issuing the arrest warrant on the twenty-second of October, nineteen forty-seven, and that because no governmental sanction existed at that time, the initiation of the proceedings was void. Consequently, the counsel maintained that the subsequent notice dated the twenty-fifth of March, nineteen forty-nine, was also unlawful, relying chiefly on observations from the precedent Emperor v. Sourindra Mohan Chuckerbutty.

The appellant contended that the Magistrate had taken cognizance of the offences on 22 March 1947, and he principally relied on observations made in Emperor v. Sourindra Mohan Chuckerbutty (I.L.R. 37 Cal. 412). The Court therefore found it necessary to determine the exact moment at which the Magistrate actually took cognizance of the alleged offences. Section 190 of the Code of Criminal Procedure, which governs the manner in which a Magistrate may assume cognizance, provides the following provision: “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.” The wording of this section makes it clear that the initiation of criminal proceedings against an individual commences only when the Magistrate takes cognizance under one of the three circumstances enumerated above. The first circumstance relates to non-cognizable offences, as defined in the Code, where the Magistrate acts upon a complaint lodged by an aggrieved person. The second circumstance involves a written report from a police officer, which typically arises in cases of cognizable offences after the police have completed their investigation and approach the Magistrate for the issuance of a process. The third circumstance occurs when the Magistrate himself, either on his own knowledge or on information received from a source other than a police officer, takes notice of the offence and proceeds to issue the necessary process.

It is important to bear in mind that, with respect to any cognizable offence, the police are vested with the authority to arrest a person at the initial investigative stage without first obtaining an order from the Magistrate. Under Section 167(b) of the Code of Criminal Procedure, the police are required to produce the arrested individual before a Magistrate within twenty-four hours and, if they wish to continue the detention for further investigation, to secure an order of remand to police custody. Nonetheless, this provision does not require a prior magistrate’s order for the arrest itself; the police may arrest for investigatory purposes directly. Consequently, in matters involving cognizable offences, the suspect may be arrested by the police while the investigation is still underway, even before any formal proceedings have been initiated by the Magistrate. It may also be noted that the Magistrate who authorises the remand may be one who does not possess jurisdiction to try the case. In the present case, however, the offences for which the appellant is charged are classified under the Code of Criminal Procedure as non-cognizable. If the matter were to be governed solely by the provisions of the Code, the appellant could not be lawfully arrested without first obtaining an order from the Magistrate.

The situation, however, is materially altered by the operation of Section 3 of the Prevention of Corruption Act, which reads: “An offence punishable under section 161 or section 165 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 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.” By virtue of this provision, offences under sections 161 and 165 of the Indian Penal Code become cognizable for the purposes of the procedural code, notwithstanding the general classification of those offences as non-cognizable under the Code of Criminal Procedure. The proviso to Section 3 imposes two specific limitations on police powers in connection with investigations of offences falling under the Act: first, that any investigation must be conducted by an officer not below the rank of Deputy Superintendent of Police unless a first-class Magistrate orders otherwise; and second, that an arrest may be effected only after obtaining a warrant from a Magistrate. The Court, therefore, concluded that the statutory amendment created by Section 3 overrides the default rule applicable to non-cognizable offences, rendering the appellant’s alleged offences cognizable for procedural purposes and thereby permitting the police to arrest without a prior magistrate’s order, subject only to the limitations articulated in the proviso.

For the purposes of the Code of Criminal Procedure, 1898, the provision declares that offences punishable under sections 161 and 165 of the Indian Penal Code shall be treated as cognizable, even if the Criminal Procedure Code states otherwise. The proviso attached to this provision imposes only two restrictions on police powers in relation to these offences. First, an investigation may be carried out only by an officer who is not below the rank of Deputy Superintendent of Police, unless a Magistrate of the first class specifically orders a lower-ranking officer to investigate. Second, an arrest may be made only after the police obtain a warrant from a Magistrate; a warrant issued without such an order is prohibited. It is crucial to understand that the magistrate’s order must be obtained while the police are still investigating the matter, and not after the investigation has concluded and the police are about to commence formal proceedings against the suspect under section 190 of the Criminal Procedure Code. Consequently, the order that may be sought and granted during the investigation, pursuant to section 3 of the Act, precedes the point at which the magistrate takes cognizance of the offence under section 6 of the Act or under section 190 of the Criminal Procedure Code. This interpretation follows from a reading of sections 3 and 6 of the 1947 Act together with section 190 of the Criminal Procedure Code, in light of the definition of a cognizable offence contained in the Code. The appellant contended that when the magistrate issued a warrant in October 1947, the magistrate did so only after having taken cognizance of the offence under section 190 of the Criminal Procedure Code, arguing that without such cognizance the magistrate lacked authority to issue any process, since section 190 is the sole provision empowering a magistrate to act against a suspected offender. In the Court’s view, however, the language of section 3 of the Act defeats that assumption. The proviso to section 3 explicitly allows a magistrate to issue a warrant for arrest during the course of an investigation, on the basis that the offence is deemed cognizable. By classifying the offences under sections 161 and 165 as cognizable, section 3 of the Act supplies the necessary legal basis for the magistrate’s intervention, rather than requiring prior cognizance under section 190 of the Criminal Procedure Code.

In this case the Court observed that, although two safeguards exist because the proceedings are directed against a public servant, the existence of those safeguards does not mean that a warrant issued by a Magistrate under section 3 of the Act must necessarily be issued after the Magistrate has taken cognizance of the offence, as opposed to being issued during the police investigation of a cognizable offence. The Court explained that the only practical effect of the proviso to section 3 is that, instead of a police officer making an arrest on his own motion, the officer must first obtain an order from the Magistrate authorising the arrest. The Court held that it is incorrect to argue that, merely because a warrant is issued, the Magistrate must have taken cognizance of the offence and that the Magistrate’s action can only be authorised under section 190 of the Criminal Procedure Code. The Court then turned to the substantive portion of section 197 of the Criminal Procedure Code, which provides that where a public servant who cannot be removed from office except with the sanction of the Government is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of official duty, no court shall take cognizance of the offence except with prior sanction of the appropriate Government. The Court noted that, when read after section 190, the word “cognizance” in section 197 indicates the stage of initiating proceedings against a public servant. Sections 190 to 199-B of the Criminal Procedure Code are grouped under the heading “Initiation of proceedings”, whereas the provisions dealing with the police investigation stage in cognizable offences are set out in different sections. The Court further pointed out that section 6 of the Act provides that no court shall take cognizance of an offence punishable under sections 161 or 165 of the Indian Penal Code alleged to have been committed by a public servant except with prior sanction of the appropriate Government. By reading sections 197 and 190 of the Criminal Procedure Code together with section 6 of the Act and the wording of the proviso to section 3, the Court concluded that the point at which a warrant is sought under the proviso is not the stage of the Magistrate’s cognizance as contemplated by the other three sections. Counsel for the appellant relied on observations in Emperor v. Sourindra Mohan Chuckerbutty (1) concerning the interpretation of the word “cognizance”. In that case a dacoity occurred on 24 April 1909 at N, and on the same day the police sent a report of the occurrence to the Sub-divisional Officer of Diamond Harbour. One of the accused was arrested on 2 September and made a confession on 18 October. The case was subsequently transferred by the District Magistrate of Alipore to his own file, and on 20 January 1910 an order under section 2 of the Criminal Law Amendment Act (XIV of 1908) was issued, directing that the provisions of Part 1 of the Indian Criminal Law Amendment Act shall apply to the proceedings concerning the offences alleged in the case of Emperor v. Lalit Mohan Chuckerbutty and others.

The Court recorded that an order issued under section two of the Criminal Law Amendment Act, fourteenth of 1908, stated in full: “Whereas the District Magistrate of the twenty-four Parganas has taken cognizance of offences punishable under sections three hundred ninety-five and three hundred ninety-seven of the Indian Penal Code, alleged to have been committed by the persons accused in the case of Emperor versus Lalit Mohan Chuckerbutty and others … and whereas it appears to the Lieutenant-Governor of Bengal that the provisions of Part One 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.” The accused identified as S surrendered on the twenty-fourth of January, after which the police arrested him and presented him before the Joint Magistrate of Alipore, who ordered that he be remanded to jail. Subsequent applications for bail on his behalf were filed but each was dismissed. An attempt to obtain bail from the Sessions Judge under section four hundred ninety-eight of the Criminal Procedure Code also failed. Thereafter S approached the High Court, seeking a rule that would require the District Magistrate to show cause why bail should not be granted. The petition asserted two grounds: first, that no formal order had been made applying Act fourteen of 1908 to the case; and second, that there was no sufficient cause to continue further inquiry into S’s guilt. The contention that the Magistrate had not taken cognizance of the dacoity offence on the twentieth of January formed the basis of the first ground.

The learned Judges observed that the argument was advanced because S’s legal adviser had not been permitted to examine the case record. On consideration of the facts, the Court found that the Magistrate had indeed taken cognizance of the offence on the twentieth of January. The Court noted that the statement that “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” must be understood in the context of these facts. It was further pointed out that the Magistrate had expressly recorded his taking cognizance of the case, and consequently the provisions of the Criminal Law Amendment Act were applied to the proceedings. The central issue before the High Court, therefore, was whether the High Court possessed the power to grant bail after the Criminal Law Amendment Act had been made applicable to the case. The Court held that the earlier decision and the observations it contained did not assist the appellant. Citing Gopal Marwari versus Emperor, the Court explained that the term “cognizance” in the Code signifies the moment when a magistrate or judge first takes judicial notice of an offence; it is distinct from the initiation of proceedings and serves as a condition precedent to such initiation. The Court also observed that the word “cognizance” is a term of somewhat indefinite meaning.

In discussing the meaning of the expression “taking cognizance,” the Court referred to earlier observations in Emperor v. Sourindra Mohan Chuckerbutty (2) and quoted the judgment of Das Gupta J in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (3). Das Gupta J observed that the Criminal Procedure Code does not define “taking cognizance,” and he expressed no desire to attempt a definition. He explained, however, that before a magistrate can be said to have taken cognizance of an offence under section 190(1)(a) of the Code, the magistrate must not only consider the contents of the petition but must do so for the purpose of proceeding in the manner prescribed by the subsequent provisions of the Chapter, namely, proceeding under section 200 and then forwarding the matter for inquiry and report under section 202. He further stated that if the magistrate’s mental consideration is directed toward a different purpose, such as ordering an investigation under section 156(3) of the Code or issuing a search warrant for investigative reasons, that mental act cannot be characterised as taking cognizance of the offence. The Court affirmed that this analysis correctly addresses the question before it.

The Court then turned to the facts of the present case. On 25 March 1949 the magistrate issued a notice under section 190 of the Criminal Procedure Code against the appellant and fixed the date for return of the notice as 2 May 1949. This act demonstrated that the magistrate took cognizance of the alleged offence on that specific date and acted under the provisions of section 190. When the notice became returnable, the appellant argued that the sanction granted by the Central Government was invalid because it had not been issued by the State Government. The appellant raised this contention before the High Court and subsequently before the Privy Council, but his argument was rejected at each stage. Following the failure of his contentions, the magistrate proceeded with the trial on 26 November 1949.

The sole issue remaining for determination was whether any sanction authorising prosecution had been issued by the Government before the magistrate took cognizance on 25 March 1949 and issued the notice under section 190. The Court found, on the basis of the record, that the Government had indeed granted its sanction for prosecuting the appellant prior to that date. Consequently, the appellant’s contention that the magistrate was required to take cognizance of the offences without a prior governmental sanction was found to be untenable. The appeal was therefore dismissed. The agents appearing for the parties were recorded as follows: the appellant was represented by an agent identified as S S Shukla, and the respondent was represented by an agent identified as C P Lal.