minal Appeal No 100 of 1969
572 Appeal by special leave from the judgment and order dated January 8 1969 of the Bombay High Court in Criminal Application No 1341 of 1968
C L Sareen and J C Talwar for the appellant
P K Chatterjee and section P Nayar for the respondent
The Judgment of the Court was delivered by Shelat J
The appellant and one Bakshi Singh Sunder Singh were accused No 2 and accused No 1 respectively in the committal proceedings before the Presidency Magistrate 28th Court Greater Bombay
This appeal by special leave is directed against the judgment of the High Court of Bombay refusing to quash the order of committal passed by the learned Magistrate
The facts relevant to this appeal are few and may first be stated
On October 31 1963 one Jivansingh Uttam Singh obtained a British passport bearing No 183459 at Nairobi
On the strength of that passport he was returning to India with his family
On his way he died on board the ship
According to the prosecution that passport came into the hands of the appellant
Bakshi Singh desired to go to the United Kingdom but had no passport
The appellant agreed to arrange his journey and also for that purpose to obtain a passport for him
The allegation was that the appellant prepared an applica tion for a visa in the name of Bakshi Singh
It was further alleged that with a view to procure the said visa the photograph of the said deceased Jivansingh was removed from the said passport and that of Bakshi Singh substituted
The visa having in this fashion been obtained Bakshi Singh journeyed to the United Kingdom having on his way made some intermediate halts
The British authorities suspected that the passport was a forged document and repatriated Bakshi Singh to India
On his arrival he was handed over to the Special Police Bombay
The Special Police carried out investigation in the course of which they recorded statements of certain witnesses including that of Tanna Singh the younger brother of Bakshi Singh
On completion of the investigation the police filed a charge sheet before the learned Magistrate
That charge sheet is not before us
But counsel for the appellant informed us that Bakshi Singh was therein charged under secs
419 and 471 read with sec
468 and the appellant was charged under secs
419109 468 and 471 of the Penal Code
Counsel also
informed us that the Magistrate did not examine any witnesses during the committal 573 proceedings but on a perusal of the charge sheet and the documents filed before him under sec
173 of the Code of Criminal Procedure he framed the charges and committed by his order dated September 13 1968 Bakshi Singh and the appellant for trial before the Sessions Court
By that order he directed the said Bakshi Singh to stand his trial under secs
120B 419 467 and 471 read with sec
467 and the appellant under secs
120B and 467 of the Penal Code
The offence of criminal conspiracy charged under sec
120B was that the said Bakshi Singh and the appellant had conspired to forge the said passport for the use of the said Bakshi Singh
In the High Court various contentions were raised on behalf of the appellant in support of his application under sec
561A of the Code of Criminal Procedure including that under sec
196A 2
That contention was that no consent as required by sec
196A2 having been first obtained the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy and therefore the committal order was without jurisdiction and had to be quashed
In this appeal we are concerned only with that contention as the special leave ranted to the appellant has been limited to that ground alone
Sub sec
2 of sec
196A which is relevant to the present case provides that no court shall take cognizance of the offence of criminal conspiracy punishable under sec
120B of the Penal Code in a case  inter alia where the object of such conspiracy is to commit any non cognizable offence
There is no doubt that the charge as framed by the Magistrate and for which he committed the appellant and Bakshi Singh to stand their trial before the Sessions Court was for criminal conspiracy the object of which was to forge the said passport a non cognizable offence
In respect of that offence sec
196A2 would undoubtedly apply
What that section prohibits is taking cognizance of an offence of criminal conspiracy unless consent to the initiation of proceedings against the person charged with it has been first obtained
As provided by sec
190 of the Code of Criminal Procedure a Magistrate may take cognizance of an offence either a upon receiving a complaint or b upon a police report or c upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed
As has often been held taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence
Cognizance therefore takes place at a point when a magistrate first takes judicial notice of an offence
This is the position whether the magistrate takes 574 cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer
Therefore when a magistrate takes cognizance of an offence upon a police report prima facie he does so of the offence or offences disclosed in such report
It is not in dispute that the charge sheet submitted by the police officer for the purpose of initiation of proceedings by the magistrate was for offences under sees
419 and 471 read with sec
468 against Bakshi Singh and under sees
419109 471 and 468 against the appellant
The charge sheet admittedly did not refer to or charge either of them with criminal conspiracy under sec
120B Prima facie it is not possible to say that at the stage when the police filed the charge sheet the Magistrate took cognizance of the offence under sec
120B for that was not the offence alleg ed in the charge sheet to have been committed by either of the two accused persons
True it is that the Magistrate ultimately drew up charges which included the offence under sec
120B the object of which was to forge the passport an offence under sec
The Magistrate also did not consider it necessary to examine any witnesses and frame the charges on a perusal of the charge sheet submitted to him by the police the statement of witnesses recorded by the police during their investigation and such other documents as were filed under sec
173 of the Code of Criminal Procedure fore him
The materials before him therefore were the same as were before the police officer who had filed the charge sheet
But while drawing up the charges and passing his order of committal the Magistrate considered that though the charge sheet filed before him alleged the commission of offences under secs
419109 471 and 468 the proper charge on the materials before him although they were the same as before the police officer warranted a charge of criminal conspiracy for forging a passport
It is quite clear however that the cognizance which he took was of the offences alleged in the charge sheet because it was in respect of those offences that the police had applied to him to initiate proceedings against Bakshi Singh and the appellant and not for the offence under sec
It was at a later stage ie at the time of passing the committal order that he considered that a charge under sec
120B was the more appropriate charge and not a charge under sec
109 of the Penal Code
That being so it must be held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation so far as the appellant was concerned and not of the offence of criminal conspiracy and therefore sec
196A2 did not apply
Counsel in this connection relied on certain observations made in a minority judgment of section K Das J in Pramatha Nath 575 Taluqdar vs Saroj Ranjan Sarkar
1 The question involved there was whether a second complaint could be entertained by a magistrate who or whose predecessor had on the same or similar allegations dismissed a previous complaint and if so in what circumstances should such a complaint be entertained
Arising 
out of this question a contention was raised whether on the complaint as it was framed the Magistrate had the jurisdiction to take cognizance of the offences alleged in the complaint in the absence of a sanction under sec
The second complaint alleged offences under secs
467 and 471 read with sec
109 of the Penal Code
But in para 5 thereof there was an allegation as to criminal conspiracy and it was on the basis of that allegation that sec
196A2 was sought to be involved
It was in this connection that the learned Judge at page 315 of the report observed  It would not be proper to decide the question of sanction me rely by taking into consideration the offences mentioned in the heading or the use of the expression  criminal conspiracy in para 5
The proper test should  be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of the proceedings within the meaning of section 196A2 of the Code of Criminal Procedure
It is from that point of view that the petition of complaint must be examined
 The learned Judge ultimately held that though the offence of criminal conspiracy was alluded to in para 5 of thesaid complaint the offence primarily and essentially chargedwas abetment by conspiracy under sec
109 of the Penal Code and therefore
no consent under sec
196A2 was required
In Biroo Sardar vs Ariff 2 the view also taken was that itis not the sections referred to which matter but the offence prima facie disclosed
Following that decision the High Court of Bombay in Ramchandra vs Emperor3 observed that the question whether sanction is necessary or not depends not on the sections referred to in a complaint but the offence prima facie disclosed 
by the facts alleged in it
It is clear from the charge sheet submitted to the magistratethat the offence of criminal conspiracy was not even referred to
The offence primarily and essentially alleged therein was oneof abetment of forgery under secs
468 and 471 and of false 1 1962 Supp 2 SCR 297
2 AIR 1925 Cal
3 AIR 1939 Bom 129
576 impersonation under sec
419 read with sec
Assuming that the Magistrate before taking cognizance had persued the statements of witnesses recorded by the police during investigation it was conceded by counsel after he himself had gone through them from the record that none of the witnesses had alleged therein either directly or indirectly of the appellant having entered into a criminal conspiracy with Bakshi Singh for forging the passport
It cannot be disputed that the charge sheet also prima facie disclosed the offence of abetment
That being so it is impossible to sustain the argument that the Magistrate took cognizance of the offence under sec
120B and therefore consent under sec
196A2 was required as a condition precedent or that the committal order and the proceedings for committal which be took were vitiated for want of such consent
The appeal therefore fails and is dismissed
VPS Appeal dismissed


Summary:
The police filed a charge sheet against the appellant and another for various offences in connection with the fabrication of a British passport
The offences mentioned in the charge sheet against the appellant were sections 419109 468 and 471 IPC and against the other accused sections 419 and 471 read with section 468
The Magistrate did not examine any witnesses but after perusing the charge sheet and other documents filed before him under section 173 CrPC framed charges against the two accused and committed them for trial before the Sessions Court
The charges against the accused included the offence under section 120B IPC the object of the conspiracy being to commit the non cognizable offence of forging the passport
The appellant filed an application in the High Court for quashing the committal order on the ground that no consent as required by section 196A2 Cr
PC having been obtained the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy
The High Court dismissed the application
Dismissing the appeal to this Court HELD  1 Cognizance takes place when the Magistrate takes judicial notice of an offence
Therefore when a Magistrate takes cognizance of an offence under section 190 Cr
PC upon a police report prima facie he does so of the offences alleged in the report
573 H 574 A In the present case the charge sheet did not refer to or charge either of the accused with criminal conspiracy
The cognizance which the Magistrate took was therefore only of the offences alleged in the chargesheet and it was only at the later stage of passing the committal order that he considered that a charge under section 120B was more appropriate than that of abetment
574 F H 2 Even on the basis that it is not the sections referred to in the charge sheet that matter but the offence prima facie disclosed by the allegations in the present case the offence primarily and essentially disclosed in the charge sheet and other documents was one of abetment of forgery and of the false impersonation
575 F H Therefore the Magistrate did not take cognizance of the offence under section 120B IPC and hence consent under section 196A2 Cr
PC was not a condition precedent
576 B C