dedol-hf/india-case-legal-rag huggingface dataset:
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-cognizable  of-
fences  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
offence and issues the process.  It is important to remember
that  in respect of any cognizable offence, the  police,  at
the  initial stage when they are investigating  the  matter,
can arrest a person without obtaining an
  (1) I.L.R. 37 Cal. 412.
41
316
order  from  the  Magistrate. Under section  167(b)  of  the
Criminal Procedure Code the police have of course 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  Magistrate  first.
Therefore in cases of cognizable 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 Magistrate.  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  there-
fore if the matter fell to be determined only on the  provi-
sions of the Criminal Procedure Code the appellant could not
be arrested without an order of the Magistrate.   The  posi-
tion  however is materially altered because of section 3  of
the Act which runs as follows:--
3.  "An offence punishable under section 161 or  section
165 of the Indian Penal Code shall be deemed to be a cogniz-
able offence for the purposes of the Code of Criminal Proce-
dure,  1898, notwithstanding anything to the  contrary  con-
tained 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."
    It therefore follows that for the  Prevention of Corrup-
tion Act, offences under sections 161 and 165 of the  Indian
Penal  Code become cognizable, notwithstanding what is  pro-
vided  in the Criminal Procedure Code.  The proviso to  sec-
tion 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: (1) that the inves-
tigation
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 point 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  pro-
ceedings  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 Procedure 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  Magis-
trate  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  cogni-
zance the Magistrate had no jurisdiction to issue any  proc-
ess as that was the only section which permitted the  Magis-
trate  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  cogni-
zance  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 investi-
gation  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 Penal Code cognizable  has
provided  the two safeguards as the proceedings are  contem-
plated against a public servant. But because of these  safe-
guards it
318
does  not follow that the warrant issued by  the  Magistrate
under  section 3 of the Act is after cognizance of  the  of-
fence,  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  ar-
resting  on his own motion he has got to obtain an order  of
the  Magistrate for the arrest. In our opinion, it is  wrong
from  this feature of section 3 of the Act alone to  contend
that  because  the warrant is 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  Proce-
dure Code. The material 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 purporting to act  in  the
discharge  of his official duty, no court shall take  cogni-
zance  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 section
indicates  the stage of initiation of proceedings against  a
public servant. Sections 190 to 199-B of the Criminal Proce-
dure Code are grouped together under the caption "Initiation
of proceedings". The sections dealing with the stage of  in-
vestigation by the police in the case of cognizable offences
are  quite different. Under section 6 of the Act it is  pro-
vided  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 of the Act in the light of  the
wording  of the proviso to section a, 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.
319
Learned  counsel for the appellant relied on  some  observa-
tions  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  subse-
quently 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 397, I.P.C., alleged to  have
been committed by the persons accused in the case of Emperor
v. Lalit Mohan Chuckerbutty and others  ......  and  whereas
it appears to the Lieutenant-Governor of Bengal...the provi-
sions  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  arrested by the police and put before the Joint  Magis-
trate 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  ad-
vanced  because  the legal adviser of S had
(1) 1. L.R. 37 Cal. 412.
320
SUPREME COURT REPORTS
no opportunity to see the record of the case.  On the  facts
it was clear that the 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  provi-
sions of the Criminal Law Amendment Act were made 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 (1),  it was observed  that
the  word  'cognizance'is used in the Code to  indicate  the
point  when the Magistrate or a Judge first  takes  judicial
notice  of  an offence.  it is a different  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.  Sou-
rindra Mohan Chuckerbutty (2), it was stated by Das Gupta J.
in  Superintendent and Remembrancer of Legal  Affairs,  West
Bengal  v. Abani Kumar Banerjee (3) as follows :--" What  is
taking  cognizance  has  not been defined  in  the  Criminal
Procedure Code and I have no desire to attempt 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) (a), 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.I.R. 1943 Pat. 245.           (3) A.I.R.  1950  Cal.
437.
 (2) I. L. R. 37 Cal. 412.
321
of proceeding in a particular way as indicated in the subse-
quent  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  investiga-
tion,  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  deci-
sion going against him 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  cogni-
zance of the offence and issued the notice under section 190
of  the Criminal Procedure Code 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 conten-
tion  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.
42
322
PETITIONER:
SANTOSH KUMAR JAIN
        Vs.
RESPONDENT:
THE STATE.UNION OF INDIA--Intervener.
DATE OF JUDGMENT:
05/03/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
DAS, SUDHI RANJAN
CITATION:
 1951 AIR  201            1951 SCR  303
 CITATOR INFO :
 R          1964 SC1781  (17)
 R          1985 SC 660  (12,13)
 R          1990 SC1891  (11)
ACT:
    Essential  Supplies  (Temporary  Powers)  Act  (XXIV  of
1946), s. 3--Power to "provide for regulating or prohibiting
production,  supply and distribution"  of  goods-----Whether
includes power to issue directions and orders to  particular
persons to do specific acts--Order to search and seize goods
held by particular company--Validity-Scope of sub-ss. (1)  &
(2)  of  s.  3--Generality of  powers  conferred  by  sub-s.
(1)--Obstruction   to  officers  Carrying  out   order   for
seizure-Conviction  under s.  186,  I.P.C.--Legality--Indian
Penal Code, 1860, s. 186--Offence under, essentials of.
HEADNOTE:
  Section  3  of the Essential Supplies  (Temporary  Powers)
Act, 1946, provided as follows:
  (1)  The Central Government, so far as it appears to  it
to  be necessary or expedient for maintaining or  increasing
supplies  of an essential commodity, or for  securing  their
equitable distribution and availability at fair prices,  may
by notified order, provide for regulating or prohibiting the
production,  supply and distribution thereof, and trade  and
commerce therein.
       Without  prejudice  to the generality of  the  powers
conferred  by  sub-s.  (1)  an  order  made  thereunder  may
provide   ......  (j) for any incidental  and  supplementary
matters. including in particular the entering, and search of
premises,  vehicles, vessels and aircraft, the seizure by  a
person  authorised  to make such search of any  articles  in
respect  of which such person has reason to believe  that  a
contravention has been, is being, or is about to be  commit-
ted..."
    In  exercise  of  the powers conferred  on  the  Central
Government  by cl. (j) of sub-s. (2) of s. (3) of the  above
said Act, which had been delegated to the Provincial Govern-
ment in relation to food stuffs, the Governor of Bihar  made
an order authorising the District Magistrate, Patna, and the
Special Officer in charge of rationing, Patna, to search the
stock of sugar held by a company of which the appellant  was
the  General  Manager  and directing the  seizure  of  5,000
maunds  of sugar held in stock by the said company,  on  the
ground that the company was about to commit a  contravention
of  an order of the Chief Controller of Prices and  Supplies
made under the Sugar and Sugar Products Control
304
Order, 1947.  The appellant obstructed the officers who went
to  search  and seize the goods and was convicted  under  s.
186, Indian Penal Code.
   Held, (i) the power "to provide for regulating or prohib-
iting production, supply and distribution" conferred by  the
Act  on the Central Government  included the power to  regu-
late  or  prohibit  by issuing directions  to  a  particular
producer  or dealer or by requiring any specific act  to  be
done  or  foreborne in regard to production  etc.,  and  the
order  of  the  Governor was not therefore  invalid  on  the
ground  that  it  was not a rule or  regulation  of  general
application  but  an order concerning a  particular  company
alone;
     (ii)  sub-section (2) of s. 3 conferred no  further  or
other powers than what were conferred by sub-s. (1) and  the
enumeration  of  certain matters in sub-s.  (2)  was  merely
illustrative, as such enumeration was "without prejudice  to
the generality of the powers conferred by sub-s. (1) ";
    (iii) seizure of an article being within the purview  of
sub-s.  (1) of s. 3 it was therefore competent  to the  Cen-
tral Government, and its delegate the Provincial Government,
to make an order for seizure under sub-s. (1) apart from and
irrespective  of the anticipated contravention of any  other
order as contemplated in el. (j) of sub-section (2);
    (iv) even assuming that the order of the Chief  Control-
ler  of Prices under the Sugar Control Order was  incomplete
and  inoperative and there could be no question of its  con-
travention, the reference to that order in the order made by
the Governor would be a mere redundancy and would not affect
the  validity  of the latter order, and  the  appellant  was
rightly convicted under s. 186, Penal Code.
    Quaere: Whether for an offence under s. 186, Penal Code,
it  is necessary that the act which was obstructed  must  be
duly authorised and otherwise lawful.
King Emperor v. Sibnath Banerjee [1945] F.C.R. 195 applied.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Appeal (Criminal Appeal
No. 3 of 1950) from a judgment of the High Court of  Judica-
ture  at Patna dismissing a petition to revise an  order  of
the  Sessions Judge, Patna, convicting the appellant for  an
offence  under s. 186, Indian Penal Code: The facts  of  the
ease appear in the judgment.
    N.C.  Chatterjee  (Rameshwar  Nath, with  him)  for  the
appellant.
  S.K.  Mitra (K. Dayal, with him) for the respondent.  S.M.
Sikri for the Intervener.
305
1951. March 5.  The judgment of the Court was
delivered by
    PATANJALI  SASTRI J.--This is an appeal from a  judgment
of the High Court of Judicature at Patna dismissing a  revi-
sion petition against the conviction of the appellant for an
offence under s. 186 of the Indian Penal Code.
    The  appellant  was at all material  times  the  General
Manager  of  the Jagdishpur Zamindary  Company  (hereinafter
referred to as the company) who were the lessees of a  sugar
factory referred to in these proceedings as the Bhita  Sugar
Factory. He was prosecuted for obstructing the then District
Magistrate  and the Special Officer incharge  of  Rationing,
Patna,  in  the discharge of their official  functions  when
they  went to the factory on 6th December, 1947,  to  remove
5,000 maunds of sugar which had been seized out of the stock
held  by the company pursuant to an order of the  Government
of Bihar dated 5th December, 1047.  The case for the  prose-
cution was as follows:  The company had deliberately  failed
to  comply with the orders for supply of sugar  issued  from
time  to  time under the provisions of the Sugar  and  Sugar
Products Control Order, 1047, by officers of the  Government
duly  authorised  in that behalf. and, in  consequence,  the
Government  made the following order on 5th  December,  1947
:--
"In  exercise  of the powers conferred  on  the  Central
Government by cl. (1) of sub-section (2) of section 3 of the
Essential Supplies (Temporary Powers) Act, 1946, which  have
been  delegated to the Provincial Government in relation  to
foodstuffs  in the notification of the Government of  India,
Department  of  Food, No. PY 603 (2)-1 dated  21st  October,
1946, the Governor of Bihar is pleased :--
    (1) to authorise the District Magistrate, Patna,  and/or
the  Special   Officer-in-charge of   Rationing,  Patna,  to
search the stock of sugar held by Messrs. Jagdishpur Zamind-
ary Company, Bhita, in the District of Patna, which is about
to commit a contravention of
306
the  order of the Chief Controller of Prices  and  Supplies,
Bihar,  made  under cl. 7 (1) (ii) of the  Sugar  and  Sugar
Products Control Order, 1947, and issued in order No.  1613-
P.C.R.  dated  27th September, 1947, in so far as  the  said
order relates to the said Company, and
(2)  to direct that 5,000 maunds of sugar held in  stock
by the said Company shall be seized.
                By order of the Governor of Bihar
                   Sd. T.P. SINGH,
                Secretary to Government."
On  the 6th December, 1947, when the officers named went  to
the factory to carry cut the aforesaid order, they were told
by  the  appellant that he would do everything  possible  to
obstruct  the removal of the sugar, and accordingly  it  was
found  that the sugar godowns had been locked and  the  road
leading to them blocked by heaps of coal, firewood       and
tins placed across, so as to make vehicular traffic   impos-
sible.   A  railway  siding leading to  the  godowns     had
also  been rendered unserviceable by the removal    of  some
of   the  rails  and  fishplates.   As  a  result  of   such
obstruction,  the  officers  had to seek the  aid  of  armed
police to break open the locks, repair the railway line  and
clear the road block before the sugar could be removed  from
the factory.
    The  appellant's main defence was that on a proper  con-
struction  of  s.  3 of the  Essential  Supplies  (Temporary
Powers)  Act, 1946, hereinafter referred to as the  Act)  it
was  not competent for the Government to pass the  order  of
5th December, 1947, which was consequently illegal and void,
and  that obstruction to the execution of that  order  could
not  constitute an offence under s. 186 of the Indian  Penal
Code.   The  contention was rejected and the  appellant  was
convicted and sentenced to simple imprisonment for a term of
three weeks.
    On  appeal,  the Sessions Judge,  Patna,  confirmed  the
conviction  and sentence, agreeing with the findings of  the
trial court, and a Revision Petition preferred by the appel-
lant was rejected by the High Court,
307
which, however, granted a certificate under article 134  (1)
(c)  of  the Constitution that the case was a  fit  one  for
appeal  to this court as it involved a point of  "sufficient
public importance" as to the interpretation of section 3  of
the Act.  Section 3, so far as it is material here, runs  as
follows :--
"3. (1) The Central Government, so far as it appears  to
it to be necessary or expedient for maintaining or  increas-
ing  supplies  of any essential commodity, or  for  securing
their  equitable  distribution  and  availability  at   fair
prices,  may, by notified order, provide for  regulating  or
prohibiting the production, supply and distribution thereof,
and trade and commerce therein.
    (2)  Without prejudice to the generality of  the  powers