TMI Blog1951 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 bail. 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 of the Indian Penal Code. On the 31st January, 1949, sanction in the same 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 charge-sheet submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 therefore if the matter fell to be determined only on the provisions of the Criminal Procedure Code the appellant could 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 165 of the Indian Penal Code shall be deemed to be a cognizable offence for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Penal Code cognizable has provided the two safeguards as the proceedings are contemplated against a public servant. But because of these safeguards it 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 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 Procedure Code. The material part of section 197 of the Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 arrested 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 SUPREME COURT REPORTS no opportunity to see the record of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 cognizance of the offence and issued the notice under section 190 of the Criminal Procedure Code On the 25th March, 1949. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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