JUDGMENT
Falshaw, J.
1. The circumstances giving
rise to-this reference by
the learned Ses. J. at
Delhi, Criminal Revision
893 of 1949, are as
follows. Gurcharan Singh
respondent was formerly em-
ployed as a Held Inspector
in the office of the
Custodian of Evacuees’
Probity & it is alleged that
while acting in this
capacity he misappro
priated some evacuees’
property over which he had
dominion. The casa was
first registered as a result
of report to the police on 2-
1- 948, & as a result of the
investigation by the
police Gur-charan Singh
was arrested on 31 4 1948, &
released on ail on the
following day, the 1st
of May. The chalan was
actually put into the
Court of a Magistrate on 23-
7-1948, under Section 409,
Penal Code. On 18 8 1948,
preliminary objections to
the legality of the
Court’s proceeding with
the trial were raised on
behalf of the accused.
These objections were
primarily based on my
decision in Cri. Revn. No.
191 of 1948 decided on 18-7
1948, in which I held that
as long as the provisions
of Section 5, Prtiveniion
of Corruption Act, ACS II
(2) of 1947, remained in
force, Section 409, Penal
Code, so far as it related
to offences by public
servants, stood repealed.
In effect this decision
meant that if a public
servant was alleged to
have com-mitted an offence
which fell either under
Section 409, Penal Code,
or Section 5 (1) (c)
Prevention of Corrup-tion
Act, be could only be
prosecuted under the
latter section, & in tbat
case the sanction of the
appropriate authority
mentioned in Section 6,
Prevention of Corruption.
Act, was necessary before
any Court could take
cognizance of the case. It
is not disputed that for
the case under Section 409,
Penal Code, against
Gurcharan Singh no sanc-
tion of any authority
had been obtained. The
learned trial Magistrate
rightly felt that he was
bound by this decision, &
he also rejected another
ground on which it was
contended on behalf of the
Crown that the case could
continue notwithstanding
my decision. This
contention was that at the
time when the Court took
cognizance of the case
Guroharan Singh was no
longer a public servant.
It is in fact not in dispute
that he was discharged from
Govt. service on 8-5-
19(sic)8. i. e., on a date
intervening between the date
on which his bail
application had been
entertained & accepted & the
da e on which the actual
chalan was presented
before the Court. The
learned Magistrate,
however, was of the
opinion that he had taken
cognizance of the case on
the 1st of May when he
applied his mind to the fact
a of the case in dealing
with the bail application
of the accused. He
therefore held
that the case could not The Mate (Cr R. No. 779 of
proceed without the 1950), in which inter alia
sanction of the the effect of the Pre
appropriate authority vention of Corruption Act
mentioned in Section 6 of of 1947 on Section 409.
Act 11 [2] of 1947 and he Penal Code, is
therefore discharged the involved.
accused on 15-11-1948. A
2. The first question
revision petition was to be decided is whether
filed on behalf of the it was correctly decided
Crown in the Court of by me in Criminal Revn.
the learned Sss. J., who, No. 191 of 1948 that as
by his order dated 13-7- long as Section 6 of Act
1949, held that he was II (2) of 1947 remains in
bound by my decision force Section 409 Penal
regarding the section Code, pro tanto stands
under which proceedings repealed as regards
must be taken against the offences alleged to have
accused, but at been committed by public
the same time, after ser-vauta. This question
considering the relevant obviously requires consi
authorities, held that deration of the scheme &
Gurcharan Singh was no purpose of Act II [2] of
longer a public servant 1947, which came into
when the trial Court took force on 11-3-1947. It is
cognizance of the case & headed “An Act for the
that therefore no more effective prevention
previous sanction of bribery & corruption” &
under Section 6, the opening words of the
Prevention of Act itself are “whereas it
Corruption Act was is expedient to make more
necessary. He accordingly effective provision for
forwarded the case to this the prevention of bribery
Court with the re- & corruption; it is hereby
commendation that the enacted as follows.”
order of the trial Magis Section 1 deals with the
trate discharging the short title, extent &
accused be set aside, & duration of tho Act,
the case remanded to him regarding which it is
for proceeding with it sufficient to say that Sub-
according to law. When the section (3) pro. vides
case came before a learned that Section 5 shall
Single Judge for admission remain in force for a
ho considered the point period of three years from
involved important enough the commencement of the
for refer-ence to a Act, & this has now been
Division Bench. The case extended by a further
has accordingly been heard period of two years.
by us along with four Section 2 merely provides other revision petitions, that Balwant Rai v. The Grown for the purposes of the (or. b. no. 398 of 1949) Act 'public servant" Major T. S. Oill v. The means a public servant as State (Cr R. No. 1073 of defined in Section 21, 1949), Captain Ram Parkash Penal Code. Section 3 v. The Crown (cr. B. No 6 provides that of 1950) & bharah Singh v. notwithstanding anything contained in the Criminal of corruption may fairly P. C. offences punishable be drawn. Section 5
under Section 161 or 165. proceeds to deal with the
Penal Code, shall be offence of criminal
deemed to be cognizable misconduct in discharge of
offences for the pur-poses official duty. The section
of the Criminal P C. with reads:
the proviso that without
” (1) A
an order from a first public servant is Bald to
class Magistrate no Police commit the offence of
Officer below the rank of criminal misconduct in the
Deputy discharge of bis duty:
Superintendent shall
(a) if he
either investigate such an habitually accepts or
offence or make any arrest obtains or agrees to
without a warrant. Section accept or attempts to
4 is more revolutionary, obtain from any person for
since without mentioning himself or for any other
the Evidence Act person, any gratification
specifically it modifies (other than legal
certain provisions of this remuneration) as a motive
Act by implication, since or reward such as is
it provides that whore in mentioned in Section 161,
the trial of an offence Penal Code or
under Section 161 or 165, (b) if he habitually
Penal Code, it is proved accepts or obtains or
that an accused person has agrees to accept or
accepted or obtained, or attempts to obtain for
agreed to accept or himself or for any other
attempted to obtain, for person, any valuable thing
himself or any other without consideration or
person, any gratification for a consideration which
other than legal he knows to be inadequate,
remuneration or any from any person whom be
valuable thing it shall be knows to have been, or to
presumed unless the be, or to be likely to be
contrary is proved that he concerned in any
accepted or obtained, or proceeding or business
agreed to accept or transacted or about to be
attompted to obtain, that transacted by him or
gratification or that having any connection with
valuable thing, as the the official functions of
case may be, as a motive himself or of any publio
or reward such as is servant to whom he is
mentioned in the said subordinate, or from any
Section 161 or, as the person whom he knows to be
case may be, without interested in or related
consideration or for a to be person so concerned,
consideration which he or
knows to be inadequate.
(c) if he dishonestly
There is, however, a or fraudulently
proviso that the Court may misappropriates or
decline to draw such a otherwise converts for his
presumption if the gratifi own use any property
cation or thing aforesaid entrusted to him or under
is in its opinion so his control as a public
trivial that no inference servant or allows any
other person so to do, or
(d) if ho, by corrupt
or illegal means or by
otherwise abusing his
position as public servant
obtains for himself or for
any other parson any
valuable thing or pecu
niary advantage.
2. Any publio servant
who commits criminal
misconduct in tho
discharge of bis duty
shall be punishable with
imprisonment for a term
which may extend to seven
years, or with fine, or
with both.
3. In any trial of an
offence punishable under
Sub-section (2) the fact
that the accused person or
any other person on his
behalf is in possession,
for which the accused
person cannot
satisfactorily account, of
pecuniary resources or
property disproportionate
to his known sources of
income may he proved, & on
such proof the Court shall
presume, unless the
contrary is proved that
the accused person is
guilty of criminal
misconduct in the
discharge of his official
duty & his conviction
therefor shall not be
invalid by reason only
that it is based solely on
such presumption.”
3. The next S. No. 6
refers to sanction tor
prosecution & reads :
“No Court shall take cognizance of an offence punish-
able under Section 161 or Section 165, Penal Gode or under
Sub-section (2) of Section 6 of this Act, alleged to have
been committed by a public servant except with the
previous sanction :
(a) in the case of a person who is
employed in connection with the affairs of the Federation
& is not removable from bis office save by or with the
sanction of the Central Govt. or some higher authority,
Central Govt.;
(b) in the oase of a person who is employed in connec
tion with the afiaira of a Province and is not removable
from his office save by or with the sanction of the Provin
cial Govt. of some higher authority, Provincial Govt.;
(e) In the case of any other person of the authority
competent to remove him from his office.” Finally Section
7 provides that any person charged with an offence
punishable under Section 161 or 165, Penal Code or under
Sub-section (2) of Section 5 of the Act shall be a
competent witness for the defence & may give evidence on
oath in disproof of the charges made against him or any
person charged together with him at the same trial, & then
follow certain safeguards regarding its being optional for
the accused to appear as his own witness, & regarding the
absence of any presumption against him if he does not
choose to appear ag a witness, and the nature of the
questions which can be asked from him if he does so.
[d] The effects of the Act may now be summed up as
follows :
(I) Public Servants accused of having com
mitted offences under Sections 161 & 165, Penal Code, may
still be tried on charges under those actual sections, bat
even so their trials will be governed by the other changes
introduced by the Act regarding the presumptions to be
drawn against them, the necessity for the sanction of the
appropriate authority under Section 6, & the privilege of
the accused to give evidence on oath ag a competent
witness if he so desires under Section 7.
(II) Sub-sections (1) & (2) of Section 5 are more or
less based on Sections 161 & 165, Penal Code, but create
new offences by somewhat enlarging the scope of those
sections. Section 5 (1) (d) creates a new offence of
obtain-ing favours by abuse of official position. Section
5 (1) (c), with which we ave primarily concerned in this
case is for all practical purposes the same as Section
409, Penal Code, so far as it relates to offences by
public servants, & it is difficult if not impossible to
conceive of any such offence committed by a public servant
which would be puniahable under one of these sections &
not under the other.
(III) A radical change ia introduced regarding the
necessity for previous
aanctbn for prosecution. This aspect of the prosecution of
public servants
was hitherto governed entirely by the provisions of
Section 197, Criminal P. C.,
Sub-section (1) of which reads :
“When any person who is a Judge within
the meaning of Section 19, Penal Code, or when any
Magistrate, or when any public servant who’is aot
removable from his office save by or with the sanction of
a Provincial Govt or some higher authority is accused of
any offence alleged to have been committed by him while
acting or purport-ing to act in the discharge of Ms
official duty, no Court shall take cognizannce of such
offence except with the previous sanction.
(a) in the case of a person employed in
connection with the affairs ot the Federation, of the
Governor General exercising his individual judgment. &
(b) in the case of a person employed in connection
with the allaira of a Province, of the Governor of that
Province exercising his individual judgment.”
Thus two major changes have been introduced by the new
Act. The first of these is that while under Section 197
the sanction of the Governor-General or the Provincial
Governor, as the case may be, was only necessary for the
prosecution of public servants who were not removable from
their offices save with tho sanction of the Central Govt,
or the Provincial Govt. respectively, no such
qualification ia contained in Section 6 in which the words
used are “committed by a public servant.” Thus under the
Criminal P. C. no sanction was ever required to prosecute
a public servant removable by a leaser authority then the
Provinoial or Central Govt. whereas cow the sanction of
the appropriate authority is necessary for the prosecution
of any public servant however subordinate, allowed to have
committed an offence under Section 161 or 165, Penal Code
or under Section 6 of the Act. The second change is that
introcuced by the omission in Section 6 of the Act of the
words appearing in Section 197 “while acting or purporting
to act in the discharge of his official duty.” This
omission appears to be deliberate. & to have been made in
consequence of decisions of various High Courts & the
Federal Court to tbe effect that an officer who had
accepted a bribe or embezzled Government property was
neither acting nor pun-porting to act in the discharge of
his official duty, & that therefore no sanction for hia
prosecution was necessary. The sanction of the appropriate
authority is therefore now necessary for the prosecution
of any public servant under the Act.
(IV) Another major change is the introduction by
Section 7 of the Act of the Privilege of an accused person
in a case under s. 161 or 165, Penal Code, or Section 5 of
tho Act, to appear as a competent witness and give
evidence on oath in disproof of the charges made against
him or any other co-accused. So far as I am aware this is
the first granting of such privilege to a person on trial
for a criminal offence in this country. Thus although
neither tho provisions of Section 843 (4), Criminal P. C.
which specifically states that no oath shall be
administered to the accused; & the latter part of Section
5 of the Oaths Act of 1873. which provides that nothing
herein contained shall render it lawful to administer in a
criminal proceeding an oath or affirmation to the accused
person, are mentioned at all in Section 7, these
provisions of law are clearly repealed by Section 7 for
tue purpose of trials under the Act,
(V) There is also ono important change regarding the
sentence for embezzlement by a public servant. The penal
Clause Section 5 (2) fixes a maximum sentence of seven
years imprisonment or a fine or both, for the offences set
out in Section 5(1) (a) (b) (e) & (d), whereas under
Section 409, Penal Code, the words regarding sentence read
:
“shall be punished with transportation for
life, or with imprisonment of either description for a
term which may extend to ten years, & shall also be liable
to fine.”
Thus not only is tbe maximum term of imprisonment
under Section 5 (2) for an offence under Section 6 (1) (c)
considerably leas than that under Section 409, Penal Code,
but also under Section 409, Penal Code, a sentence of
imprisonment is mandatory, while under Section 5 (2) the
Rent once need only be a fine without any sentence of
imprisonment.
5. The question before us is whether in view of these
changes introduced by Act II (2) of 1947, particularly
regarding the necessity for previous sanction of the
appropriate authority for prosecution, the right of the
accused to give evidence as a witness & the charge of
sentence, it is now open to the authorities concerned,
when a public servant is accused of committing aa offence
which would be punishable either under a. 409, Penal Cede,
or
Section 5 (1)(c) of the Act, to choose which of these two
sections the offender should be prosecuted under,
& by choosing to proceed under s. 409, Penal Code, to
dispense with the necessity for any previous sanction in
the case of a public servant removable from office by an
authority subordinate to the Provincial or Central Govt.,
& also to deny him the privilege of giving evidence on
oath aa a competent witness on his own behalf. Prima
facie, it would appear to be unlikely that this was the
intention of the Legislature when it passed Act II [2] of
1947, the avowed object of which was to deal more
effectively wtth bribery & corruption of public servants,
for which purpose the prevalent forms of these offences
were collected into a single Act & what was thought to be
a more effective procedure for trying offences of this
bind was introduced. The general impression that Section S
(1) (c) was intended to supersede Section 409, Penal Code,
for offences of this type committed by public servants is
greatly strengthened by the fact that the Act specifically
providesfor the trial of offences under Sections 161 &
165, Penal Code, with the procedural changes introduced by
the Act, whereas Section 409, Penal Code, is nowhere
mentioned in the Act. On behalf of the State reliance was
chiefly placed, as it was before me in tbe previous case,
on the provisions of Section 26, General Clauses Act,
which reads :
“Where an act or omission constitutes an
offence under two or more enactments, then the offender
shall be liable to be prosecuted & punished tinder either
or any of those enactments, bat shall not be liable to be
punished twice for the dame offence ”
If this section is taken by itself, then clearly a
public servant who has committed an offence falling either
under Section 409 or Section 5 (1) (c) of the Act can be
tried on a charge under either of these sections. & the
only limitation is that he cannot be convicted & sentenced
for the same offence under both of them. Clearly, there
would be no difficulty whatever in accepting the position
of the State in tbe matter if Act II [2] of 1947 simply
made an offence already punishable under
Section 409, Penal Code, punishable also under Section
Section (1) (c) & went no further. There are, however, the
three important changes regarding sanction, the right of
the accused to give evidence on oath and the change in the
quantum & nature of tbe sentence to be taken into
consideration and they certainly complicate the
question.
6. There is no doubt, as was contended by Mr. Bishan
Narain on behalf of the State that as a matter of general
principle repeal by implication is not favoured. There
are, however, obviously exceptions to this general
principle. Such a case arose when a Full Bench consisting
of seven Judges of the Lahore High Court considered the
inconsistent provisions of Section 162, Criminal P. C. &
Section 27, Evidence Act, both of which were fundamental
acts of long stand, ing, regarding tbe admissibility of
statements made by accused persons in Police custody & it
was held by the whole Court, the decision being reported
in Hakam Khuda v. Emperor, A.I.R, (37) 1940 Lah iss, that
Section 162, Criminal P. C., the later Act, repealed
Section 27, Evidence Act. This decision was not reversed
by ary higher Court. & as a matter of fact Section 163,
Criminal P C., was subsequently amended so as to leave the
provisions of Section 27. Evidence Act, intact. In spite
of the fast that nearly two & a half years have elapsed
since my earlier decision on the point in dispute, there
dees not appear to be any decision of any of tbe High
Courts in India, or the Federal Court or the Supreme
Court, in which the same point has been considered, & in
my opinion the most relevant authorities are still the
passages from Craies on Statute Law, & Maxwell on the
Interpretation of Statutes on which my earlier decision
was mainly based. The first of these passages from Craies,
p. 314, reads as follows:
“In R. v. Judge of Essex County Court, (1887)
18 Q. B. D. 704 Esher M. R. laid it down aa an ordinary
rule of contruction that where the Legislature has passed
a new statute giving a new remedy, that remedy alone can
be followed. But the phrase ‘new’ as applied to a statute
is either needless or ambiguous. The old distinction
between ‘velara’ & ‘nova slatula’ is obso etc; & the word
‘new’ is insensible unless applied to statutes creating
rights or readies unknown to the common law or to previous
enactments. And for modern use the rule could perhaps be
more accurately laid down thus. In the case of an Act
which crtates a new jurisdiction, a new procedure, new
forms or new remedies tha procedure & no others, must be
followed until altered by subsequent
legislation.”
The following passage is also from Craies, p. 315
“In Middleton v. Crofts, (1786) 2 Atk.
650, Lord Hardwicke said : ‘Sobsequent Acts of Parliament
in the affirmative giving new penalties & institution new
modes of proceeding, do not repeal former methods &
penalties ordained by preceding Acts without negative
words.” “if, however,” as Lord Campbell said in Mitchell
v. Brown (1859) 28 L. 3 M. O. 53, “a later statute again
describes an offence which had been previously created by
a former statute & affixes a different punishment to it &
varies the procedure, or if the later enactment expressly
altered the quality of the offence aa by making it a
misdemeanour instead of a felony or a felony instead
of a misdemeanour, tie later enactment must be taken as
operating by say of substitution & not cumulatlvely.” The
next passage ia from p. 195 of Maxwell :
“Indeed, it has been laid down generally,
that if a later statute again describes an offence created
by a former one & affixes a different punishment to it.
vary-ing the procedure –giving, for instance, nn appeal
where there was no appeal before–the earlier statute ia
im-pllediy repealed by it.”
7. As against these passages of undoubted weight, the
only fresh argument which Mr. Bishan Naram was able to
advance was that the cases on which they were based were
prior to the enactment of the English Interpretation Act
of 1889 which in some respects ia similar to the Indian
General Clauses Act. Section 33 of thia Act reads :
Where an act or omission constitutes an
offence under two or more Acts or both under an Act and at
common law, whether any such Act was passed before or
after the commencement of this Act, the offender shall,
unless the contrary intention appears, be liable to bo
prosecuted & punished under either or any of those Acts or
at common law, but shall not be liable to be punished
twice for the same offence.”
In essence this section is the same as Section
26, General Clauses Act, the only change of any
importance being the introduction of the words in the
English Act “unless the contrary intention appears” which
do not appear in the Indian Act. I do not, however,
consider the fact that the cases relied on by Craies
& Maxwell were prior to the Act of 1889, or the
difference in the wording of Section 33 of tbe Act & S
16, General Clauses Act, really have much effect on
the argument, or on the principles set forth by
Craiea & Max well which are obviously fundamental
principles governing the interpretation of statutes. I do
not consider that the ternn of Section 26, General
Clauses Act, broad aa they are, prealude the possibility
of repeal by implication & in order to decide the
point it is again necessary to consider the pro-visions
of Act II [2] of 1947. There ia no doubt whatever that
thia Act dues repeal by implication certain other
provisions in existing statutes. As I have already
pointed out, Section 7 repeals by impli-ca ion, without
mentioning them, certain provi-aions in Section 342 of
the Criminal P. C. & Section (sic) Oaths Act. The
presumptions raised in Section 4 & Section 6 (sic) also
modify, & to that extent repeal certain provisions of the
Evidence Act without mentioning this Act. The only
provisions in the Act which expressly repeal or modify
provisions of other statutes are those by which offenaeg
tinker ss. 161 & 165, Penal Code, are made cognizable
offences, & those by which investigation or arrest without
a warrant are taken away from Police Officers under
the rank of Deputy Superintendent of Police,
theae being only minor changes. The major
amendments to existing statutes in the Act are all
only by implication, & it is therefore not difficult
to come to the conclusion of an offence under
Section 409, Penal Code, by a public servant in Section 6
(1) (c) also intended to supersede Section 409, Penal
Code, so far as is concerns public servants by Section
5 (1) (c), & to apply the procedural
& other changes contained in the Act to public
servants who committed offences punishable previously
under Section 409, Penal Code. To hold other. wise woutd
lead to an anomalous situation & I must confess tbat I am
unable to understand the attitude of the State in wishing
still to have the liberty to proceed againat public
servants under Section 408, Penal Code, & thereby deny
them the benefits of Act II [2] of 1947 including the
right to appear as witnesses the necessity of sanction for
their prosecution, & the possibility not only of receiving
a lesser maximum sentence of imprisonment, but also of not
being sentenced to any imprisonment at all on conviction.
I would therefore adhere to my previous decision & hold
again that as long as Section 6 of Act II [2] of 1947
remains in force the provisions of Section 409, Penal
Code, so far as they concern offences by public servants
are pro tanto repealed by Section 5 (1) (c) of Act II [2]
of 1947.
8. The other question for consideration is the effect
of the fact that Gurcharan Singh respon-dent had been
removed from public service before the chalan in the case
against him was put into Court. This question falls into
two parts, the first being whether the word ‘is’ in
the phrase ‘is employed’ which is used both in Section
197, Criminal P C. & in Sub-section (a) A&(b) of Section
6 of Act II [2] of 1947 refers to the date on which
the alleged offence was committid, or to the date on
which the Court takes cognizance of the case, & the
second being whether in the present case the Court
took cognizance of the case on the date on which the
chalan was presented before it, or on the date on
which immediately following his arrest; the accused
applied for & was granted bail. There is no doubt that on
the first of these points the weight of authority is very
heavily on the side of the State. There are two
decisions reported as Sugan Chand v. Narain Das, A. I. R.
(19) 193(sic) Sind 177 and In re Section 7. Patil. A. I.
R. (24) 1937 Nag. 293 in which the Courts took the view
that the word ‘is’ in Section 19(sic), Criminal P. C.
referred to the time of the commission of the alleged
offence, & not to the date on which the Court took
cognizance of the case but these views have been dissented
from in Suraj Narain v. Emperor, a. I B. (25) 1938
ALL. 613; Prasad Chandra v. Emperor, A. I. R. (30) 943
cal. 527 & Empe-ror v. P. A. Joshi, A. I R. (35)
1918 Bom, 248. There are as yet apparently no
decided cases under Section 6 of Act II (2) of 1947; but
both in Section 197, Criminal P C., & in this section
the relevant words are similar. The essendal part of
Section 197
reads:
or when any public servant who ia not
removable from his office …. is accused of any offence
….. no Court shall take cognizance of such
offence”.
& the relevant words of Section 6 are:
‘No Court shall take cognizance of an offence
alleged to have been committed by a public servant, except
with the previous sanction …. in the case of a person
who is employed:
In view of this form of wording in the two sections
clearly the same principles would apply to them in this
matter. The views of the Calcutta and Bombay High Courts
were that without any doubt the protection afforded by
Section 197, Criminal P. C. was only intended to be enjoyed
by Judges, Magistrates & other public servants while still
in office, and that no sanction was necessary for the
prosecution of a Govt. servant who had already been
discharged from service before the case was brought against
him, & I entirely agree with this interpretation.
9. Finally there is the question whether the trial
Court could be said to have taken cognizance of the case
merely by entertaining the respondent’s bail application
while he was still a public servant a week before he was
discharged from service. In my opinion the view of the
learned Ses. J. on this point was correct. It is not clear
how the respondent’s bail application came to he filed in
the Court of this particular Magistrate, but it is suggested
that the reason was that the learned Magistrate was a
Special Magistrate dealing generally with cases of this
type. It is, however, quite clear that at the time the bail
application was filed and accepted by him the investigation
was still far from complete, and that at a later stage
either the case might be withdrawn, or it might go to the
Court of some other Magistrate. Admittedly the meaning of
the phrase “taking cognizance” has not been precisely
defined in the Code of Criminal Procedure, but, as the
learned Sessions Judge has pointed out, bail applications
are frequently considered both by Ses. J. & by the High
Court during the preliminary stages of cases and yet Section
193, Criminal P. C. provides that no Sessions Court shall
take cognizance of any offence as a Court of original juris
diction unless the accused has been duly committed, and
Section 194 provides for the circumstances under which a
High Court may take cognizance of any offence. From this it
can be deduced that the term ‘taking cognizance’ has no
connection with entertaining a bail application while a case
is still at the stage of a Police Investigation. Moreover
many bail applications are dealt with by so-called “duty”
Magistrates, in whose case it is merely a coincidence if
they subsequently have to deal with. Particular cases in
which they have already dealt with bail application in their
capacity as duty Magistrates. I therefore agree with the
view that dealing with a bail application is something quite
separate & distinct from taking cognizance of a case.
10. The net result is that while the case against the
respondent must proceed against him under Section 5 (1) (c)
of Act II (2) of 1947, the case can proceed without any
sanction as provided in Section 6 of the Act. I would
accordingly accept the recommendation of the learned Ses. J.
& set aside the order ot the trial Court discharging the
accused and remand the case to it for trial according to
law. The other revision petitions which were put up for
hearing along with this may now be returned for hearing by
single Judges & decision on the various points involved in
the light of the decision on the first point decided
above.
11. Khosla, J.
I agree.
Case remanded.