PETITIONER: NARAYANDAS BHAGWANDAS MADHAVDAS Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT: 07/05/1959 BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER KAPUR, J.L. CITATION: 1959 AIR 1118 1960 SCR (1) 93 CITATOR INFO : R 1961 SC 986 (7) RF 1977 SC2401 (8) ACT: Criminal Trial--Cognizance of an offence, when taken -Issuing of search warrant and warrant of arrest, if amount to taking cognizance-Attempting to take currency notes out of India-Foreign Exchange Regulation Act, 1947 (VII of 1947), ss. 19(3) and 23(3). Code of Criminal Procedure, 1898 (V of 1898), ss. 153, 155, 200-203 and 204. HEADNOTE: On September 7, 1952, the appellant went to Dum Dum Aerodrome to board a plane for Hong Kong. On his search by the customs authorities a sum of RS. 25,000 was recovered from him which he had not declared in his declaration form and for which he had no permit from the Reserve Bank of India for taking out of India. On September II, 1952, the Reserve Bank authorised Inspector Mitra to move the Additional District Magistrate, 24 Parganas under S. 19(3) Of the Foreign Exchange Regulation Act, for permission to proceed against the appellant. On September 16, 1952, Mitra applied to the Magistrate for a search warrant and for a warrant of arrest and both warrants were issued. The appellant was arrested and released on bail with a direction to appear before the Magistrate on September 19 On September 19, the Magistrate granted bail to the appellant but refused him exemption from personal attendance before the Court and granted time till November 19, 1952, for completing the investigation. This time was extended upto January 2, 1953 and then upto February 2, 1953. In the meantime on January 27, 1953, Mitra was authorised under S. 23(3)(b)) Of the Act to file a complaint against the appellant. The complaint was filed on February 2, 1953, before the Additional District Magistrate who transferred the case to a Magistrate I Class for trial. On the same day the Magistrate I Class recorded the presence of the appellant, allowed his application for reduction of security and fixed March 26, and 27, 1953, for evidence. Upon conclusion of the trial the Magistrate acquitted the appellant but on appeal the Calcutta High Court convicted him. The appellant contended that the entire trial was without jurisdiction as the Magistrate had taken cognizance of the offence on September 16, 1952, without there being a complaint in writing by a person authorised as required by S. 23(3) of the Act. Held, that cognizance of the offence was taken by the Additional District Magistrate on February 2, 1953, after the complaint had been filed and the trial was valid. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case. Mere issuing of a search warrant or warrant of arrest for the purposes of investigation did not, by 94 themselves, amount to taking of cognizance. Cognizance was taken when a Magistrate applied his mind for the purpose of proceeding under S. 200 and subsequent sections of Ch. XVI of the Code of Criminal Procedure or under S. 204 Of Ch. XVII of the Code. In the present case cognizance was taken when on February 2, 1053, the Additional District Magistrate applied his mind to the case with a view to issuing a process and sent the case for trial to another magistrate. Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, A.I.R. (1950) Cal. 437 and R. R. Chari v. The State of Uttar Pradesh, [1951] S.C.R. 312, applied. The facts found clearly established that the appellant attempted to take out of India the currency notes in question, and such attempt was also an offence. The High Court had rightly rejected his explanation that he had applied to the Reserve Bank for a permit to take the currency notes out of India and that as the permit had not been received he had handed over the notes to the customs authorities for safe custody. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 12 of
1957.
Appeal from the judgment and order dated September 5, 1956,
of the Calcutta High Court in Government Appeal No. 7 of
1954, arising out of the judgment and order dated April 3,
1954, of the Court of 1st Class Magistrate at Alipore.
Ishwar Lal C. Dalal and 1. N. Shroff, for the appellant.
H. J. Umrigar, and R. H. Dhebar, for the respondent.
1959. May 7. The Judgment of the Court was delivered by
IMAM T.-This is an appeal on a certificate granted by the
Calcutta High Court. Two points have been urged before the
Bench of the High Court which granted the certificate. The
first was that the search conducted by the Customs officials
which had resulted in the detection of the currency
notes on the person of the appellant had not-been a legal
search and consequently no proceedings could be based on
the purported detection made. This point was rejected by
the Bench. The second point urged on behalf of the
appellant was that on September 16, 1952, when the
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Magistrate issued the warrant of arrest against the
appellant he could not have done so without having
previously taken cognizance of the offence. Since, however,
the authorization required under s. 23(3) of the Foreign
Exchange Regulation Act (VII of 1947) was not obtained till
January 27, 1953, the cognizance taken by the Magistrate on
September 16, 1952, was without jurisdiction. If the
initiation of the proceedings was without jurisdiction, the
conviction could not stand. The High Court thought that the
contention of the appellant raised a question of law and
granted the requisite certificate for appeal to this Court.
The prosecution case was that on September 7, 1952, the
appellant went to Dum Dum Aerodrome with a view to boarding
a plane for Hong Kong. The plane was due to leave the
airport at 8-30 a.m. The appellant had to go through the
customs formalities before he could board the plane. On an
enquiry by the Customs Officers as to whether he had any
other articles besides what he had declared in the declara-
tion form, the appellant answered in the negative. His
baggage was then examined but no objectionable article was
detected therein. The Customs Officers, however, noticed a
pouch of somewhat unusual size which aroused their
suspicion. Thereafter, the appellant was subjected to
personal search. When they were about to search his person
he let drop his trousers. The appellant was requested to
lift up the trousers and wear them again which he did. On
the search of the trousers a sum of Rs. 25,000 in Indian
currency notes was discovered in two secret pockets. They
were concealed from below the surface and opened from the
inside. On September 11, 1952, the Reserve Bank of India
authorized Inspector S. B. Mitra of the Special Police
Establishment, Calcutta, to make a representation to the
Additional District Magistrate, 24 Parganas (hereinafter
referred to as the Additional District Magistrate) for
permission to proceed against the appellant as required
under s. 19(3) of the Foreign Exchange Regulation Act, 1947.
Mitra thereupon applied to the Additional District,
Magistrate on September 16, 1952, for a search warrant
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to be issued which was allowed. Mitra on the same date also
applied to the same Magistrate that a warrant of arrest
might be issued against the appellant. This was also
allowed and a warrant of arrest was issued by the Additional
District Magistrate and appellant was thereafter arrested
and released on bail with a direction to appear before the
Additional District Magistrate on September 19. On
September 19, he was released on bail by the Additional
District Magistrate in the sum of Rs. 50,000 with 10
sureties of Rs. 5,000 each. On November 19, the appellant
asked for exemption from attending the court on the succes-
sive dates fixed for the case but the application was
refused. On January 27, 1953, the Reserve Bank of India
authorized Mitra to file a complaint against the appellant.
On February 2,1953, a complaint was filed against the
appellant charging him with an offence under s. 8(2) of the
Foreign Exchange Regulation Act read with s. 19 of the Sea
Customs Act and notification No. FERA 105/55 RB, dated
February 27, 1951.
Thereafter, the appellant was tried by another Magistrate,
Mr. Sinha, who acquitted him under s. 258 of the Code of
Criminal Procedure. The currency notes which had been
seized by the Customs Officials were directed to be
relassed. Against the appellant’s acquittal the State of
West Bengal preferred an appeal to the High Court. The High
Court allowed the appeal and convicted the appellant of the
offence with which he had been charged. He was sentenced to
pay a fine of Rs. 1,000, in default to suffer rigorous
imprisonment for three months. The order of the Magistrate
directing the release of the currency notes was set aside.
The main submission made on behalf of the appellant before
us has been that the Additional District Magistrate having
taken cognizance of the offence on September 16, 1952, and
as the provisions of s. 23(3) of the Foreign Exchange
Regulation Act had not been complied with, the entire
proceedings before him and the Magistrate who tried the case
were without jurisdiction. The subsequent authorization by
the Reserve Bank on January 27, 1953, and the filing of
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the complaint on February 2,1953 could not make legal
proceedings which had already commenced without
jurisdiction. It was also urged that the facts found did
not attract the provisions of s. 19 of the Sea Customs Act
(8 of 1878) as it could not be said that at the moment the
appellant was searched by the Customs Officials, he was
taking out of India across any customs frontier as defined
by the Central Government the currency notes in question.
It was also urged that explanation offered by the appellant
was accepted by the trying Magistrate and the High Court
ought not to have set aside the acquittal of the appellant,
there being no good ground why his explanation should not
have been accepted.
The version of the appellant as to how the sum of Rs.
25,000 in currency notes was with him was that he was not
searched at all at the Customs barrier. had taken out the
currency notes in question from his trouser pocket and
handed over the same to the Customs Officers stating the
circumstances under which he was carrying the same on his
person and asked for a receipt. The Customs Officers
instead of giving him a receipt falsely charged him with
smuggling the currency notes out of India without any
permit. According to the appellant, he had applied to the
Reserve Bank of India at Calcutta for a permit and had sent
an application for that purpose to one Joshi in Calcutta.
He failed to receive the permit upto the last moment. His
intention was to hand over the money to the Customs Officers
for safe custody. In other words, the appellant’s version,
in substance, was that as he had failed to get the permit
upto the last moment he voluntarily handed over the currency
notes in question to the Customs Officers at the customs
barrier for safe keeping. He had at no time any intention
to carry out of India the said currency notes without a
permit. This version of the appellant was accepted by the
trying Magistrate who acquitted him. The High Court,
however, did not accept his version.
It was urged that the appeal is before us on a certificate
and as the High Court had come to a different
13
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finding on a question of fact to what the trying Magistrate
had found, it was open to the appellant to urge that he was
entitled to question the findings of the High Court. It is
true that the High Court has taken a different view to that
taken by the trying Magistrate and has rejected the
appellant’s case that he had voluntarily handed over the
currency notes in question to the Customs Officers in the
circumstances mentioned by him and that he had no intention
to take that money out of India without a permit.
Nonetheless, the finding of the High Court is on a question
of fact. We can see no particular reason in this case to go
be. hind the findings of fact arrived at by the High Court.
The High Court gave very good reasons for accepting the
evidence of the prosecution witnesses as to the
circumstances in which the currency notes in question were
recovered from the appellant when his person was searched.
An important circumstance which might have supported the
appellant’s case, namely whether he had applied to the
Reserve Bank of India for a permit to take out of India
currency notes to the extent of Rs. 25,000 was considered by
the High Court. It found, on the evidence of the
Superintendent of the Reserve Bank, that the Reserve Bank
received no application from the appellant before September
7, 1952, nor had the Reserve Bank granted the permission to
the appellant to take any currency notes out of India. It
was on September 16, that the Reserve Bank had received an
application of the appellant forwarded by one G.C. Joshi by
his letter dated September 15, 1952. The application of the
appellant bore the date September 2, 1952. The High Court
thought that there were grounds for suspecting that this
application was antedated. The High Court came to the
conclusion that there was no evidence to show that any such
application was written or submitted on September 2, 1952.
It does seem extraordinary that if the appellant had sent
the application to Joshi on September 2, 1952, that Joshi
should not have sent on that application to the Reserve Bank
till September 15, 1952. It is to be remembered that the
incident had already taken place on September 7, 1952, and
in that
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connection on September 15 and 16, 1952, Inspector Mitra of
the Special Police Establishment, Calcutta had applied for a
search warrant and a warrant of arrest respectively against
the appellant. On arrest, under the terms of that warrant
he was released on bail by the police with a direction to
appear before the court on September 19. The appellant had
therefore ample opportunity to concoct an application for a
permit after September 7, and to antedate it getting Joshi
on September 15, 1952, to forward the same to the Reserve
Bank. It is inconceivable that a person who was leaving for
Hong Kong and wished to carry such a large sum of money as
Rs. 25,000 in currency notes would have applied on September
2, when he was actually to fly on September 7, 1952.
Further it would not be unreasonable to suppose that the
appellant would have so timed his arrival at Calcutta as
would have enabled him to make the necessary enquiries from
Joshi or the Reserve Bank whether the permit asked for had,
been granted. It is impossible to believe that he had
arrived at Calcutta and had gone direct to the Dum Dum Aero-
drome without making any enquiry from Joshi at least whether
the permit asked for had been granted. Normally one would
expect the appellant to reach Calcutta in sufficient time to
make the necessary enquiries and in the absence of a permit
having been granted to have left the currency notes for safe
custody with Joshi or some other trusted person. It is an
entirely unacceptable story which the appellant put forward
that he waited upto the last moment at the aerodrome for the
necessary permit and not having got it requested the Customs
Officers to keep the currency notes for safe custody. It is
significant that the appellant did not examine Joshi as a
witness in support of his case. It is not unlikely that if
he had done so some inconvenient results would have followed
in consequence of close questioning of Joshi regarding the
entire transaction. We have, therefore, no reason to think
that the High Court had erred in suspecting that the
application to the Reserve Bank was antedated. On this
finding it is apparent that the very foundation of the
defence of the appellant is false. That the appellant did
not hand
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over the currency notes of Rs. 25,000, at the customs
barrier but was searched when the customs formalities were
gone through is not only deposed to by a number of
‘Witnesses holding responsible positions but is deposed to
by P.W. 4, Panna Lal Dey, Money Exchanger of Dum Dum
Airport. Panna Lal Dey’s evidence was accepted by the High
Court and after having examined his evidence we are
satisfied that there is no reason to distrust his testimony.
Reference has been made to some of the evidence on a
question of fact in order to’ satisfy ourselves whether the
finding of the High Court was correct. We are satisfied
that the finding of the High Court is the only view which
could reasonably be taken in a case like this.
It is true that the appellant had not taken the currency
notes in question out of India across any customs frontier
as defined by the Central Government. He had, however,
clearly attempted to take the same out of India. In such a
case no question of his crossing the customs frontier
arises. That an attempt to take out the currency notes in
question is an offence punishable under the Sea Customs Act
is clear from the provisions of s. 167, Item 8. The Foreign
Exchange Regulation (Amendment) Act 1952 (VIII of 1952),
came into force in February 1952. By this Act s. 23B was
introduced into the Foreign Exchange Regulation Act.
Section 23B makes punishable an attempt to contravene the
provisions of the Foreign Exchange Regulation Act or any
rule, direction or order made thereunder. Furthermore, this
point was not taken before the Bench which granted the
certificate of fitness for appeal to this Court. Be that as
it may, the facts found clearly established that the
appellant attempted to take out of India the currency notes
in question. He had entered the customs enclosure and had
signed the declaration form. He had been questioned as to
whether he had any other article than those mentioned in the
declaration form which he wished to declare and he had
answered in the negative. On his personal search he dropped
his trousers on the ground. He was asked to pick up his
trousers and wear them again. On search of the trousers Rs.
25,000,
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in currency notes were found concealed in the inner pockets.
The appellant had his ticket to proceed to Hong Kong by a
plane which was due to leave Dum Dum Airport at 8-30 a.m.
and the customs formalities were done in connection with
that flight. If the appellant had successfully cleared
himself from the customs formalities all that was left for
him to do was to board the plane which would take him out of
India. These circumstances establish beyond all reasonable
doubt that the act of the appellant had gone beyond the
stage of preparation and was clearly an attempt to carry the
sum of Rs. 25,000, in currency notes out of India without a
permit from the Reserve Bank. We cannot accept the argument
made on his behalf that the act of the appellant, on the
facts found, amounted merely to preparation and not an
attempt.
The main submission on behalf of the appellant was directed
towards establishing that the entire proceedings before the
Additional District Magistrate and the trying Magistrate
were without jurisdiction as cognizance of the offence had
been taken on September 16, 1952, in contravention of the
provisions of s. 23(3) of the Foreign Exchange Regulation
Act, there being on that date no complaint in writing made
by an officer authorised in that behalf by the Central
Government or the Reserve Bank of India by a general or a
special order. It is, therefore, necessary to see, in the
circumstances of the present case, on what date cognizance
of the offence was taken. In order to ascertain this
certain provisions of the Foreign Exchange Regulation Act
and the Code of Criminal Procedure will require con-
sideration. Under s. 19(3) of the Foreign Exchange
Regulation Act a District Magistrate or Magistrate of the
first class may, on a representation in writing made by a
person authorized in this behalf by the Central Government
or the Reserve Bank and having reasons to believe that there
had been contravention of any of the revisions of that Act,
issue a search warrant. Inspector Mitra was so authorized
by the Reserve Bank on September 11, 1952, and in pursuance
of that authorization applied to the Additional District
Magistrate for the issue of a search warrant. Under
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this section the search warrant is issued for the purposes
of conducting investigation under that Act. On September
16, Mitra applied for a warrant of arrest against the
appellant. This application was obviously made under the
Criminal Procedure Code, The offence which the appellant is
alleged to have committed was a non-cognizable offence.
Under s. 155(2) of the Code of Criminal Procedure, no police
officer shall investigate a non-cognizable offence without
the order of a Magistrate of the first or second class
having power to try such a case or commit the same for
trial, or of a Presidency Magistrate. Inspector Mitra’s
application definitely states that he in asking for
permission to investigate a non-cognizable offence under s.
155, Cr. P.C. The order of the Additional District
Magistrate directing the issue of a search warrant and the
word ” permitted ” contained therein we consider, in the
context of the application, to mean that he granted the
sanction for investigation as asked for. Under s. 155(3) of
the Code a police officer being permitted to investigate a
non-cognizable offence may exercise the same powers in
respect of the investigation as an officer incharge of a
police station may exercise in a cognizable case, except
that he has not the power to arrest without a warrant. It
was necessary therefore for Inspector Mitra to obtain from
the Additional District Magistrate a warrant of arrest. It
is clear, therefore, that upto September 16, 1952, the
Additional District Magistrate had not taken cognizance of
any offence.
On September 19, 1952, the appellant appeared before the
Additional District Magistrate who recorded the following
order:-
” He is to give bail of Rs. 50,000 with ten sureties of Rs.
5,000 each. Seen Police report. Time allowed till 19th
November, 1952, for completing investigation.” On November
19, 1952, on perusal of the police report the Magistrate
allowed further time for investigation until January 2,
1953, and on that date time was further extended to February
2, 1953. in the meantime, on January 27, 1953, Inspector
Mitra had been -authorized under s. 23(3)(b) of the Foreign
Exchange Regulation Act to file a complaint. Accordingly, a
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complaint was filed on February 2,1953. The Additional
District Magistrate thereon recorded the following order:
” Seen the complaint filed to day against the accused
Narayandas Bhagwandas Madhavdas under section 8(2) of the
Foreign Exchange Regulation Act read with Section 23B
thereof read with Section 19 of the Sea Customs Act and
Notification No. F.E.R.A. 105/51 dated the 27th February,
1951, as amended, issued by the Reserve Bank of India under
Section 8(2) of the Foreign Exchange Regulation Act. Seen
the letter of authority. To Sri M. N. Sinha, S.D.M.
(Sadar), Magistrate 1st class (spl. empowered) for favour of
disposal according to law. Accused to appear before him.”
Accordingly, on the same date Mr. Sinha then recorded the
following order:-
” Accused present. Petition filed for reduction of bail.
Considering all facts, bail granted for Rs. 25,000 with 5
sureties.
To 26th March, 1952 and 27th March, 1952 for evidence.”
It is clear from these orders that on September 19, 1952,
the Additional District Magistrate had not taken cognizance
of the offence because he had allowed the police time till
November 19, 1952, for completing the investigation. By his
subsequent orders time for investigation was further
extended until February 2, 1953. On that date the complaint
was filed and the order of the Additional District
Magistrate clearly indicated that he took cognizance of the
offence and sent the case for trial to Mr. Sinha. It would
also appear from the order of Mr. Sinha that if the Ad-
ditional District Magistrate did not take cognizance, he
certainly did because he considered whether the bail should
be reduced and fixed the 26th and 27th of March, for
evidence. It was, however, argued that when Mitra applied
for a search warrant on September, 16, 1952, the Additional
District Magistrate had recorded an order thereon, ”
Permitted. Issue search warrant.” It was on this date that
the Additional District Magistrate took cognizance of the
offence. We cannot agree with this submission because the
petition of Inspector Mitra clearly states that ” As this is
non-cognizable offence, I pray that you will kindly permit
104
me to investigate the case under section 155 Cr. P. C.”
That is to say, that the Additional District Magistrate was
not being asked to take cognizance of the offence. He was
merely requested to grant permission to the police officer
to investigate a non-cognizable offence. The petition
requesting the Additional District Magistrate to issue a
warrant of arrest and his order directing the issue of such
a warrant cannot also be regarded as orders which indicate
that the Additional District Magistrate thereby took
cognizance of the offence. It was clearly stated in the
petition that for the purposes of investigation his presence
was necessary. The step taken by Inspector Mitra was merely
a step in the investigation of the case. He had not himself
the power to make an arrest having regard to the provisions
of s. 155(3) of the Code of Criminal Procedure. In order to
facilitate his investigation it was necessary for him to
arrest the appellant and that he could not do without a
warrant of arrest from the Additional District Magistrate.
As already stated, the order of the Additional District
Magistrate of September 19, 1952, makes it quite clear that
he was still regarding the matter as one under
investigation. It could not be said with any good reason
that the Additional District Magistrate had either on
September 16, or at any subsequent date upto February 2,
1953, applied his mind to the case with a view to issuing a
process against the appellant. The appellant had appeared
before the Magistrate on February 2, 1953, and the, question
of issuing summons to him did not arise. The Additional
District Magistrate, however, must be regarded as having
taken cognizance on this date because he sent the case to
Mr. Sinha for trial. There was no legal bar to the
Additional District Magistrate taking cognizance of the
offence on February 2, 1953, as on that date Inspector
Mitra’s complaint was one which he was authorized to make by
the Reserve Bank under s. 23(3)(b) of the Foreign Exchange
Regulation Act. It is thus clear to us, that on a proper
reading of the various orders made by the Additional
District Magistrate no cognizance of the offence was taken
until February 2, 1953. The argument that he took cogniz-
ance of the offence on September 16, 1952, is without
105
foundation. The orders passed by the Additional District
Magistrate on September 16, 1952, September 19, 1952,
November 19, 1952, and January 2, 1953, were orders passed
while the investigation by the police into a non-cognizable
offence was in progress. If at the end of the investigation
no complaint had been filed against the appellant the police
could have under the provisions of s. 169 of the Code
released him on his executing a bond with or without
sureties to appear if and when so required before the
Additional District Magistrate empowered to take cognizance
of the offence on a police report and to try the accused or
commit him for trial. The Magistrate would not be required
to pass any further orders in the matter. If, on the other
hand, after completing the investigation a complaint was
filed, as in this case, it would be the duty of the
Additional District Magistrate then to enquire whether the
complaint had been filed with the requisite authority of the
Reserve Bank as required by s. 23(3)(b) of the Foreign
Exchange Regulation Act. It is only at this stage that the
Additional District Magistrate would be called upon to make
up his mind whether he would take cognizance of the offence.
If the complaint Was filed with the authority of the Reserve
Bank, as aforesaid, there would be no legal bar to the
Magistrate taking cognizance. On the other hand, if there
was no proper authorization to file the complaint as
required by s. 23 the Magistrate concerned would be
prohibited from taking cognizance. In the present case, as
the requisite authority had been granted by the Reserve Bank
on January 27, 1953, to file a complaint, the complaint
filed on February 2, was one which complied with the
provisions of s. 23 of the Foreign Exchange Regulation Act
and the Additional District Magistrate could take cognizance
of the offence which, indeed, he did on that date. The
following observation by Das Gupta, J., in the case of
Superintendent and Remembrancer of Legal Affairs, West
Bengal v. Abani Kumar Banerji (1) was approved by this Court
in the case of
R. R. Chari v. The State of Uttar Pradesh (2) :-
(1) A.I.R. (1950) Cal- 437.
14
(2) [1951] S.C.R. 312.
106
“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 must have done so for the purpose of proceeding
in a particular way as indicated in the subsequent provi-
sions 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 investigation, he
cannot be said to have taken cognizance of the offence.”
It is, however, argued that in Chari’s case this Court was
dealing with a matter which came under the Prevention of
Corruption Act. It seems to us, however, that makes no
difference. It is the principle which was enunciated by Das
Gupta, J., which was approved. As to when cognizance is
taken of an offence will depend upon the facts and
circumstances of each case and it is impossible to attempt
to define what is meant by taking cognizance. Issuing of a
search warrant for the purpose of an investigation or of a
warrant of arrest for that purpose cannot by themselves be
regarded as acts by which cognizance was taken of an
offence. Obviously, it is only when a Magistrate applies
his mind for the purpose of proceeding under s. 200 and
subsequent sections of Chapter XVI of the Code of Criminal
Procedure or under s. 204 of Chapter XVII of the Code that
it can be positively stated that he had applied his mind and
therefore had taken cognizance.
In our opinion, the proceedings before the Additional
District Magistrate and the trying Magistrate were with
jurisdiction and the trial of the appellant was
legal.
The appeal is accordingly dismissed.
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