Kania CJ.

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 aliau/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 aliau/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 Mohan37 Cal. 412 [LQ/CalHC/1910/118] : (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 :

190(1) "Except as hereinafter provided, any Presidency Mag. Dist. Mag. or Sub-divisional Mag. and any other Mag. 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. . . . ."

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 complaint 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.

4. The offences for which the applt. is charged are under the Cr. P. C. non-cognizable and therefore if the matter fail to be determined only on the provisions of the Cr. P. C. the applt. could not be arrested without an order of the Mag. The position however is materially altered because of S. 3 of the Act which runs as follows :

3. "An offence punishable u/S. 161 or S. 165, I. P. C., shall be deemed to be a cognisable 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 Dy. S. P. shall not investigate any such offence without the order of a Mag. of the first class or make any arrest therefore without a warrant."

5. It therefore follows that for the Prevention of Corruption Act, offence u/Ss. 161 and 165, I. P. C. become cognisable, notwithstanding what is provided in the Cr. P. C. The proviso to S. 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 investigation should be conducted by an officer not below the rank of a Dy. S. P. unless a Mag. of the first class otherwise orders; and (2) if an arrest has to be made an order of the Mag. has to be obtained The important point to be borne in mind is that the order of the Mag. 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 proceedings against the suspected person u / S. 190, Cr. P. C. The order which may be applied for and made during the police investigation by virtue of S. 3 of the Act is therefore before the Mag. has taken cognizance of the offence under S. 6 of the Act or S. 190, Cr. P. C.That appears to us to be the result of reading Ss. 3 and 6 of Act II [2] of 1947 and S. 190, Cr. P. C. read with the definition of cognizable offence in the Code.

6. The argument on behalf of the applt. is that when the Mag. issued the warrant in October 1947 he did so on taking cognizance of the offence u /s. 161 or 165, I. P. C. u/s, 190, Cr. P. C. It was contended that without such cognizance the Mag. had no jurisdiction to issue any process as that was the only section which permitted the Mag. to issue a process against a person suspected of having committed an offence. In our opinion, having regard to the wording of S. 3 of the Act the assumption that the Mag can issue a warrant only after taking cognizance of an offence u/s. 190 Cr. P. C. is unsound. The proviso to S. 3 of the Act expressly covers the case of a Mag. 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 u/s. 161 or 165, I. P. C. cognizable has provided the two safeguards as the proceedings are contemplated against a public servant. But because of those safeguards, it does not follow that the warrant issued by the Mag. u/S. 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 Mag. for the arrest. In our opinion, it is wrong from this feature of S. 3 of the Act alone to contend that because the warrant is issued it must be after the Mag. has taken cognizance of it and the Mag's- action can be only under S. 190 Cr. P. C. The material part of S. 197, Cr. P. C. provides that where any public servant who is not removab1e from his office save with the sanction of Govt. is accused of an often a alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Ct. shall take cognizance of such offence except with the previous sanction of the appropriate Govt. This section read as following S. 190 shows that the word 'cognizance' in this section indicates the stage of initiation of proceedings against a public servant. Ss. 190 to 199 (b), Cr. P. C, are grouped together under the caption "Initiation of proceedings" The sections dealing with the stage of investigation by the police in the case of cognizable offences are quite different. U/S. 6 of the Act it is provided that no Ct. shall take cognizance of an offence punishable under S, 161or 165,1. P. O. . . . , alleged to have been committed by a public servant except with the previous sanction of the appropriate Govt. Reading Ss. 197 and190, Cr. P. C. and S 6 of the let in the light of the wording of proviso to S. 3, it is therefore clear that the stage at which a warrant is asked for under the proviso to S. 3 of the Act is not on cognizance of the offence by the Mag. as contemplated by the other three Sections.

7. Learned counsel for the applt. relied on some observations inEmperor v. Soarindra Mohan,37 Cal 412 [LQ/CalHC/1910/118] : (6 I. C. 8) in respect of the interpretation of the word 'cognizance.' In that case on 24-41909 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 2nd September, one of the accused was arrested and made a Confession on the 18th October. The case was subsequently transferred by the Dist. Mag. of Alipore to his own file and on 20-1-1910 an order u/s 2, Criminal Law Amendment Act (XIV [14] of 1908)was issued in the following terms :

"Whereas the Dist- Mag. 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 Emperoir v. Lalit Mohan Chuckerbutty and others.... and whereas it appears to the Lieut Governor of Bengal .. . . the provisions of Part I Indian Criminal Law Amendment Act should be made to apply to proceedings in respect of the said offences, now, therefore, the Lieut.-Governor.... direats . . . , that the provisions of the said Part shall apply to the said case."

S. Surrendered on 24th of January, was arrested by the police and put before the Joint Mag. of Alipore who remanded him to jail. Applns. for bail on his behalf were made but they were dismissed. The Ses. J. was next moved unsuccessfully for bail u/S. 498, Cri. P. C. S, then moved the H. C. for a R. calling upon the Dist. Mag, to Show cause why bail should not be granted on the grounds (1) that no order had been made applying Act XIV (14) 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 Mag. had not taken cognizance of the offence of dacoity on 20th of January. The learned Judges pointed out that the argument was advanced because the legal adviser of S, had not an opportunity to see the record of the case. On the facts it was clear that the Mag. had taken cognizance of the offence on the 20th of January. The observations "taken cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Mag. 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 Mag. bad expressly recorded that he had taken cognizance of the case and thereupon the provisions of the Criminal Law Amendment Act 'were made applicable to the case. The question argued before the H. C. was in respect of the power of the H. C. 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 applt.

8. InGopal v. Emperor, A.I.R. (30) 1913 Pat. 245 : (45 Cr. L. J. 177 S. B.) it was observed that the word 'cognizance' is used in the Code to indicate the point when the Mag. 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 Mag. The Ct. noticed that the word 'cognizance' is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.

9. After referring to the observations in Emperor v. Sourindra Mohan,37 Cal. 412 [LQ/CalHC/1910/118] : (6 I. C. S), it was stated by Das Gupta J. in Supdt. and Remembrancer of Legal Affairs, W. B. v. Alani Kumar, A. I. R. (37) 1950 Cal. 437, [LQ/CalHC/1950/134] as follows :

"What is taking cognizance has not been defined in the Cri. P. C. and I have no desire to attempt to define it. It seems to me clear' however that before it can be said that any Mag. has taken cognizance of any offence u/S.190 (1) (a), Cri. P. C, he must not only have applied his mind to the contents of the petn. but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap., proceeding u/s. 200 and thereafter sending it for inquiry and report u/s. 202. When the Mag applies his mind not for the purpose of proceeding under the subsequent sections of this Chap, but for taking action of some other kind e. g. ordering investigation. . . u/S. 158 (3), or 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 Ct.

10. Moreover, in the present case, on 25-3-1949 the Mag. issued a notice u/s.190, Cr. P. C. against the applt. and made it returnable On 2-5-1949. That clearly shows that the Mag. took cognizance of the offence only on that day and acted u/S. 190, Cr. P. C. On the returnable date the applt. contended that the sanction of the Central Govt. was void because it was not given by the Govt. of the State. On the decision going against him he appealed to the H. C. and to the P. C. The applt's. contention having thus failed, the Mag. proceeded with the trial On 26-11-1949. The Only question which is now presented for our decision therefore is whether there was any sanction granted by the Govt. before the Mag. took cognizance of the offence and issued the notice u/s. 190, Cr. P. C. On 25-3-1949. To that the clear answer is that the Govt. had given its sanction for the prosecution of the applt. before that date. It seems to us therefore that the applt's contention that the Mag. had to take cognizance of the offences without the previous sanctions of the Govt. is untenable and the appeal fails.

11. Appeal dismissed.