{"id":108025,"date":"1959-05-07T00:00:00","date_gmt":"1959-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/narayandas-bhagwandas-madhavdas-vs-the-state-of-west-bengal-on-7-may-1959"},"modified":"2016-07-05T18:43:44","modified_gmt":"2016-07-05T13:13:44","slug":"narayandas-bhagwandas-madhavdas-vs-the-state-of-west-bengal-on-7-may-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/narayandas-bhagwandas-madhavdas-vs-the-state-of-west-bengal-on-7-may-1959","title":{"rendered":"Narayandas Bhagwandas Madhavdas vs The State Of West Bengal on 7 May, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Narayandas Bhagwandas Madhavdas vs The State Of West Bengal on 7 May, 1959<\/div>\n
Equivalent citations: 1959 AIR 1118, \t\t 1960 SCR (1)\t 93<\/div>\n
Author: S J Imam<\/div>\n
Bench: Imam, Syed Jaffer<\/div>\n
           PETITIONER:\nNARAYANDAS BHAGWANDAS MADHAVDAS\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF WEST BENGAL\n\nDATE OF JUDGMENT:\n07\/05\/1959\n\nBENCH:\nIMAM, SYED JAFFER\nBENCH:\nIMAM, SYED JAFFER\nKAPUR, J.L.\n\nCITATION:\n 1959 AIR 1118\t\t  1960 SCR  (1)\t 93\n CITATOR INFO :\n R\t    1961 SC 986\t (7)\n RF\t    1977 SC2401\t (8)\n\n\nACT:\nCriminal   Trial--Cognizance  of  an  offence,\twhen   taken\n-Issuing of search warrant and warrant of arrest, if  amount\nto  taking cognizance-Attempting to take currency notes\t out\nof  India-Foreign  Exchange  Regulation Act,  1947  (VII  of\n1947), ss. 19(3) and 23(3). Code of Criminal Procedure, 1898\n(V of 1898), ss. 153, 155, 200-203 and 204.\n\n\n\nHEADNOTE:\nOn  September  7,  1952,  the  appellant  went\tto  Dum\t Dum\nAerodrome to board a plane for Hong Kong.  On his search  by\nthe  customs authorities a sum of RS. 25,000  was  recovered\nfrom  him which he had not declared in his declaration\tform\nand  for  which he had no permit from the  Reserve  Bank  of\nIndia  for taking out of India.\t On September II, 1952,\t the\nReserve\t  Bank\tauthorised  Inspector  Mitra  to  move\t the\nAdditional  District Magistrate, 24 Parganas under S.  19(3)\nOf  the Foreign Exchange Regulation Act, for  permission  to\nproceed against the appellant.\tOn September 16, 1952, Mitra\napplied\t to  the Magistrate for a search warrant and  for  a\nwarrant\t of  arrest  and both  warrants\t were  issued.\t The\nappellant was arrested and released on bail with a direction\nto appear before the Magistrate on September 19 On September\n19, the Magistrate granted bail to the appellant but refused\nhim exemption from personal attendance before the Court\t and\ngranted\t time  till November 19, 1952,\tfor  completing\t the\ninvestigation.\tThis time was extended upto January 2,\t1953\nand then upto February 2, 1953.\t In the meantime on  January\n27, 1953, Mitra was authorised under S. 23(3)(b)) Of the Act\nto  file a complaint against the appellant.   The  complaint\nwas  filed  on\tFebruary  2,  1953,  before  the  Additional\nDistrict Magistrate who transferred the case to a Magistrate\nI  Class for trial.  On the same day the Magistrate I  Class\nrecorded   the\tpresence  of  the  appellant,  allowed\t his\napplication  for reduction of security and fixed  March\t 26,\nand  27, 1953, for evidence.  Upon conclusion of  the  trial\nthe  Magistrate\t acquitted the appellant but on\t appeal\t the\nCalcutta High Court convicted him.  The appellant  contended\nthat  the  entire  trial was  without  jurisdiction  as\t the\nMagistrate had taken cognizance of the offence on  September\n16,  1952, without there being a complaint in writing  by  a\nperson authorised as required by S. 23(3) of the Act.\nHeld,  that  cognizance\t of the offence\t was  taken  by\t the\nAdditional  District Magistrate on February 2,\t1953,  after\nthe complaint had been filed and the trial was valid.  As to\nwhen cognizance is taken of an offence will depend upon\t the\nfacts  and  circumstances of each case.\t Mere issuing  of  a\nsearch\twarrant\t or warrant of arrest for  the\tpurposes  of\ninvestigation did not, by\n94\nthemselves, amount to taking of cognizance.  Cognizance\t was\ntaken when a Magistrate applied his mind for the purpose  of\nproceeding under S. 200 and subsequent sections of Ch.\t XVI\nof  the\t Code of Criminal Procedure or under S. 204  Of\t Ch.\nXVII of the Code.  In the present case cognizance was  taken\nwhen on February 2, 1053, the Additional District Magistrate\napplied\t his  mind  to the case with a\tview  to  issuing  a\nprocess and sent the case for trial to another magistrate.\nSuperintendent\tand  Remembrancer of   Legal  Affairs,\tWest\nBengal v. Abani Kumar Banerji, A.I.R.<\/a> (1950) Cal. 437 and R.\nR.  Chari v. The State of Uttar Pradesh,<\/a> [1951] S.C.R.\t312,\napplied.\nThe  facts  found  clearly established\tthat  the  appellant\nattempted  to  take  out  of India  the\t currency  notes  in\nquestion,  and such attempt was also an offence.   The\tHigh\nCourt  had  rightly  rejected his explanation  that  he\t had\napplied\t to  the  Reserve  Bank for a  permit  to  take\t the\ncurrency  notes out of India and that as the permit had\t not\nbeen  received he had handed over the notes to\tthe  customs\nauthorities for safe custody.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 12  of
\n1957.\n<\/p>\n
Appeal from the judgment and order dated September 5,  1956,
\nof  the\t Calcutta High Court in Government Appeal No.  7  of
\n1954,  arising out of the judgment and order dated April  3,
\n1954, of the Court of 1st Class Magistrate at Alipore.
\nIshwar Lal C. Dalal and 1. N. Shroff, for the appellant.
\nH. J. Umrigar, and R. H. Dhebar, for the respondent.
\n1959.  May 7. The Judgment of the Court was delivered by
\nIMAM  T.-This is an appeal on a certificate granted  by\t the
\nCalcutta High Court.  Two points have been urged before\t the
\nBench of the High Court which granted the certificate.\t The
\nfirst was that the search conducted by the Customs officials
\nwhich had resulted in the     detection\t  of  the   currency
\nnotes on the person of the    appellant had not-been a legal
\nsearch and consequently no proceedings\t   could be based on
\nthe  purported detection made.\tThis point was\trejected  by
\nthe  Bench.   The  second  point  urged\t on  behalf  of\t the
\nappellant was that on September 16, 1952, when the
\n95<\/span>
\nMagistrate   issued  the  warrant  of  arrest  against\t the
\nappellant   he\tcould  not  have  done\tso  without   having
\npreviously taken cognizance of the offence.  Since, however,
\nthe  authorization  required under s. 23(3) of\tthe  Foreign
\nExchange Regulation Act (VII of 1947) was not obtained\ttill
\nJanuary 27, 1953, the cognizance taken by the Magistrate  on
\nSeptember  16,\t1952,  was  without  jurisdiction.   If\t the
\ninitiation of the proceedings was without jurisdiction,\t the
\nconviction could not stand.  The High Court thought that the
\ncontention  of\tthe appellant raised a question of  law\t and
\ngranted the requisite certificate for appeal to this Court.
\nThe  prosecution  case was that on September  7,  1952,\t the
\nappellant went to Dum Dum Aerodrome with a view to  boarding
\na  plane  for  Hong Kong.  The plane was due  to  leave\t the
\nairport\t at  8-30 a.m. The appellant had to go\tthrough\t the
\ncustoms formalities before he could board the plane.  On  an
\nenquiry\t by  the Customs Officers as to whether he  had\t any
\nother articles besides what he had declared in the  declara-
\ntion  form,  the appellant answered in\tthe  negative.\t His
\nbaggage\t was then examined but no objectionable article\t was
\ndetected therein.  The Customs Officers, however, noticed  a
\npouch\tof  somewhat  unusual  size  which   aroused   their
\nsuspicion.   Thereafter,  the  appellant  was  subjected  to
\npersonal search.  When they were about to search his  person
\nhe  let drop his trousers.  The appellant was  requested  to
\nlift  up the trousers and wear them again which he did.\t  On
\nthe  search  of the trousers a sum of Rs. 25,000  in  Indian
\ncurrency  notes was discovered in two secret pockets.\tThey
\nwere  concealed from below the surface and opened  from\t the
\ninside.\t  On September 11, 1952, the Reserve Bank  of  India
\nauthorized  Inspector  S.  B. Mitra of\tthe  Special  Police
\nEstablishment,\tCalcutta,  to make a representation  to\t the
\nAdditional  District  Magistrate, 24  Parganas\t(hereinafter
\nreferred  to  as  the Additional  District  Magistrate)\t for
\npermission  to\tproceed against the  appellant\tas  required
\nunder s. 19(3) of the Foreign Exchange Regulation Act, 1947.
\nMitra\tthereupon  applied  to\tthe   Additional   District,
\nMagistrate on September 16, 1952, for a search warrant
\n96<\/span>
\nto be issued which was allowed.\t Mitra on the same date also
\napplied\t to  the same Magistrate that a\t warrant  of  arrest
\nmight  be  issued  against the\tappellant.   This  was\talso
\nallowed and a warrant of arrest was issued by the Additional
\nDistrict  Magistrate and appellant was\tthereafter  arrested
\nand  released on bail with a direction to appear before\t the
\nAdditional   District  Magistrate  on  September   19.\t  On
\nSeptember  19,\the was released on bail\t by  the  Additional
\nDistrict  Magistrate  in  the  sum of  Rs.  50,000  with  10
\nsureties  of Rs. 5,000 each.  On November 19, the  appellant
\nasked for exemption from attending the court on the  succes-
\nsive  dates  fixed  for the case  but  the  application\t was
\nrefused.   On  January 27, 1953, the Reserve Bank  of  India
\nauthorized Mitra to file a complaint against the  appellant.
\nOn  February  2,1953,  a complaint  was\t filed\tagainst\t the
\nappellant charging him with an offence under s. 8(2) of\t the
\nForeign\t Exchange Regulation Act read with s. 19 of the\t Sea
\nCustoms\t Act  and  notification No. FERA  105\/55  RB,  dated
\nFebruary 27, 1951.\n<\/p>\n
Thereafter,  the appellant was tried by another\t Magistrate,
\nMr.  Sinha,  who acquitted him under s. 258 of the  Code  of
\nCriminal  Procedure.   The  currency notes  which  had\tbeen
\nseized\tby  the\t Customs  Officials  were  directed  to\t  be
\nrelassed.   Against the appellant’s acquittal the  State  of
\nWest Bengal preferred an appeal to the High Court.  The High
\nCourt allowed the appeal and convicted the appellant of\t the
\noffence with which he had been charged.\t He was sentenced to
\npay  a\tfine  of Rs. 1,000, in default\tto  suffer  rigorous
\nimprisonment for three months.\tThe order of the  Magistrate
\ndirecting the release of the currency notes was set aside.
\nThe  main submission made on behalf of the appellant  before
\nus  has been that the Additional District Magistrate  having
\ntaken  cognizance of the offence on September 16, 1952,\t and
\nas  the\t provisions  of s. 23(3)  of  the  Foreign  Exchange
\nRegulation  Act\t had  not been\tcomplied  with,\t the  entire
\nproceedings before him and the Magistrate who tried the case
\nwere without jurisdiction.  The subsequent authorization  by
\nthe Reserve Bank on January 27, 1953, and the filing of
\n\t\t\t     97<\/span>
\nthe  complaint\ton  February 2,1953  could  not\t make  legal
\nproceedings    which   had   already\tcommenced    without
\njurisdiction.\tIt was also urged that the facts  found\t did
\nnot  attract the provisions of s. 19 of the Sea Customs\t Act
\n(8  of 1878) as it could not be said that at the moment\t the
\nappellant  was\tsearched by the Customs\t Officials,  he\t was
\ntaking\tout of India across any customs frontier as  defined
\nby  the Central Government the currency notes  in  question.
\nIt was also urged that explanation offered by the  appellant
\nwas  accepted  by the trying Magistrate and the\t High  Court
\nought not to have set aside the acquittal of the  appellant,
\nthere  being no good ground why his explanation\t should\t not
\nhave been accepted.\n<\/p>\n
The  version  of  the appellant as to how  the\tsum  of\t Rs.
\n25,000\tin currency notes was with him was that he  was\t not
\nsearched  at all at the Customs barrier. had taken  out\t the
\ncurrency  notes\t in  question from his\ttrouser\t pocket\t and
\nhanded\tover  the same to the Customs Officers\tstating\t the
\ncircumstances  under which he was carrying the same  on\t his
\nperson\tand  asked  for a  receipt.   The  Customs  Officers
\ninstead\t of  giving him a receipt falsely charged  him\twith
\nsmuggling  the\tcurrency  notes out  of\t India\twithout\t any
\npermit.\t  According to the appellant, he had applied to\t the
\nReserve Bank of India at Calcutta for a permit and had\tsent
\nan  application for that purpose to one Joshi  in  Calcutta.
\nHe  failed to receive the permit upto the last moment.\t His
\nintention was to hand over the money to the Customs Officers
\nfor safe custody.  In other words, the appellant’s  version,
\nin  substance, was that as he had failed to get\t the  permit
\nupto the last moment he voluntarily handed over the currency
\nnotes  in  question to the Customs Officers at\tthe  customs
\nbarrier\t for safe keeping.  He had at no time any  intention
\nto  carry  out of India the said currency  notes  without  a
\npermit.\t  This version of the appellant was accepted by\t the
\ntrying\tMagistrate  who\t acquitted  him.   The\tHigh  Court,
\nhowever, did not accept his version.\n<\/p>\n
It  was urged that the appeal is before us on a\t certificate
\nand as the High Court had come to a different
\n13<\/span>
\n98<\/span>
\nfinding on a question of fact to what the trying  Magistrate
\nhad found, it was open to the appellant to urge that he\t was
\nentitled to question the findings of the High Court.  It  is
\ntrue that the High Court has taken a different view to\tthat
\ntaken  by  the\ttrying\tMagistrate  and\t has  rejected\t the
\nappellant’s  case  that he had voluntarily handed  over\t the
\ncurrency  notes in question to the Customs Officers  in\t the
\ncircumstances mentioned by him and that he had no  intention
\nto   take  that\t money\tout  of\t India\twithout\t a   permit.
\nNonetheless, the finding of the High Court is on a  question
\nof fact.  We can see no particular reason in this case to go
\nbe. hind the findings of fact arrived at by the High  Court.
\nThe  High  Court gave very good reasons\t for  accepting\t the
\nevidence   of\tthe   prosecution  witnesses   as   to\t the
\ncircumstances  in which the currency notes in question\twere
\nrecovered  from the appellant when his person was  searched.
\nAn  important  circumstance which might have  supported\t the
\nappellant’s  case,  namely  whether he had  applied  to\t the
\nReserve\t Bank  of India for a permit to take  out  of  India
\ncurrency notes to the extent of Rs. 25,000 was considered by
\nthe   High  Court.   It\t found,\t on  the  evidence  of\t the
\nSuperintendent\tof the Reserve Bank, that the  Reserve\tBank
\nreceived no application from the appellant before  September
\n7, 1952, nor had the Reserve Bank granted the permission  to
\nthe  appellant to take any currency notes out of India.\t  It
\nwas  on September 16, that the Reserve Bank had received  an
\napplication of the appellant forwarded by one G.C. Joshi  by
\nhis letter dated September 15, 1952.  The application of the
\nappellant  bore the date September 2, 1952.  The High  Court
\nthought\t that  there were grounds for suspecting  that\tthis
\napplication  was  antedated.   The High Court  came  to\t the
\nconclusion that there was no evidence to show that any\tsuch
\napplication  was written or submitted on September 2,  1952.
\nIt  does seem extraordinary that if the appellant  had\tsent
\nthe  application to Joshi on September 2, 1952,\t that  Joshi
\nshould not have sent on that application to the Reserve Bank
\ntill  September 15, 1952.  It is to be remembered  that\t the
\nincident  had already taken place on September 7, 1952,\t and
\nin that
\n99<\/span>
\nconnection on September 15 and 16, 1952, Inspector Mitra  of
\nthe Special Police Establishment, Calcutta had applied for a
\nsearch warrant and a warrant of arrest respectively  against
\nthe  appellant.\t On arrest, under the terms of that  warrant
\nhe  was released on bail by the police with a  direction  to
\nappear before the court on September 19.  The appellant\t had
\ntherefore ample opportunity to concoct an application for  a
\npermit\tafter September 7, and to antedate it getting  Joshi
\non  September 15, 1952, to forward the same to\tthe  Reserve
\nBank.  It is inconceivable that a person who was leaving for
\nHong  Kong and wished to carry such a large sum of money  as
\nRs. 25,000 in currency notes would have applied on September
\n2,  when  he  was  actually to fly  on\tSeptember  7,  1952.
\nFurther\t it  would not be unreasonable to suppose  that\t the
\nappellant  would  have so timed his arrival at\tCalcutta  as
\nwould have enabled him to make the necessary enquiries\tfrom
\nJoshi or the Reserve Bank whether the permit asked for\thad,
\nbeen  granted.\t It  is impossible to believe  that  he\t had
\narrived at Calcutta and had gone direct to the Dum Dum Aero-
\ndrome without making any enquiry from Joshi at least whether
\nthe  permit asked for had been granted.\t Normally one  would
\nexpect the appellant to reach Calcutta in sufficient time to
\nmake the necessary enquiries and in the absence of a  permit
\nhaving been granted to have left the currency notes for safe
\ncustody\t with Joshi or some other trusted person.  It is  an
\nentirely unacceptable story which the appellant put  forward
\nthat he waited upto the last moment at the aerodrome for the
\nnecessary permit and not having got it requested the Customs
\nOfficers to keep the currency notes for safe custody.  It is
\nsignificant  that the appellant did not examine Joshi  as  a
\nwitness in support of his case.\t It is not unlikely that  if
\nhe had done so some inconvenient results would have followed
\nin  consequence of close questioning of Joshi regarding\t the
\nentire transaction.  We have, therefore, no reason to  think
\nthat  the  High\t Court\thad erred  in  suspecting  that\t the
\napplication  to\t the Reserve Bank was  antedated.   On\tthis
\nfinding\t it  is\t apparent that the very\t foundation  of\t the
\ndefence\t of the appellant is false.  That the appellant\t did
\nnot hand
\n100<\/span>
\nover  the  currency  notes of Rs.  25,000,  at\tthe  customs
\nbarrier\t but was searched when the customs formalities\twere
\ngone  through  is  not\tonly  deposed  to  by  a  number  of
\n‘Witnesses  holding responsible positions but is deposed  to
\nby  P.W.  4,  Panna  Lal Dey, Money  Exchanger\tof  Dum\t Dum
\nAirport.  Panna Lal Dey’s evidence was accepted by the\tHigh
\nCourt  and  after  having  examined  his  evidence  we\t are
\nsatisfied that there is no reason to distrust his testimony.
\nReference  has\tbeen  made  to some of\tthe  evidence  on  a
\nquestion of fact in order to’ satisfy ourselves whether\t the
\nfinding\t of  the High Court was correct.  We  are  satisfied
\nthat  the finding of the High Court is the only\t view  which
\ncould reasonably be taken in a case like this.
\nIt  is\ttrue that the appellant had not taken  the  currency
\nnotes  in question out of India across any customs  frontier
\nas  defined  by the Central Government.\t  He  had,  however,
\nclearly attempted to take the same out of India.  In such  a
\ncase  no  question  of his  crossing  the  customs  frontier
\narises.\t  That an attempt to take out the currency notes  in
\nquestion is an offence punishable under the Sea Customs\t Act
\nis clear from the provisions of s. 167, Item 8. The  Foreign
\nExchange  Regulation  (Amendment) Act 1952 (VIII  of  1952),
\ncame  into force in February 1952.  By this Act s.  23B\t was
\nintroduced   into  the\tForeign\t Exchange  Regulation\tAct.
\nSection\t 23B makes punishable an attempt to  contravene\t the
\nprovisions  of\tthe Foreign Exchange Regulation Act  or\t any
\nrule, direction or order made thereunder.  Furthermore, this
\npoint  was  not\t taken before the Bench\t which\tgranted\t the
\ncertificate of fitness for appeal to this Court.  Be that as
\nit  may,  the  facts  found  clearly  established  that\t the
\nappellant attempted to take out of India the currency  notes
\nin  question.  He had entered the customs enclosure and\t had
\nsigned\tthe declaration form.  He had been questioned as  to
\nwhether he had any other article than those mentioned in the
\ndeclaration  form  which  he wished to declare\tand  he\t had
\nanswered in the negative.  On his personal search he dropped
\nhis  trousers  on the ground.  He was asked to pick  up\t his
\ntrousers and wear them again.  On search of the trousers Rs.
\n25,000,
\n101<\/span>
\nin currency notes were found concealed in the inner pockets.
\nThe  appellant had his ticket to proceed to Hong Kong  by  a
\nplane  which was due to leave Dum Dum Airport at  8-30\ta.m.
\nand  the  customs formalities were done in  connection\twith
\nthat  flight.\tIf the appellant  had  successfully  cleared
\nhimself\t from the customs formalities all that was left\t for
\nhim to do was to board the plane which would take him out of
\nIndia.\tThese circumstances establish beyond all  reasonable
\ndoubt  that  the act of the appellant had  gone\t beyond\t the
\nstage of preparation and was clearly an attempt to carry the
\nsum of Rs. 25,000, in currency notes out of India without  a
\npermit from the Reserve Bank.  We cannot accept the argument
\nmade  on  his behalf that the act of the appellant,  on\t the
\nfacts  found,  amounted\t merely to preparation\tand  not  an
\nattempt.\n<\/p>\n
The main submission on behalf of the appellant was  directed
\ntowards establishing that the entire proceedings before\t the
\nAdditional  District  Magistrate and the  trying  Magistrate
\nwere  without jurisdiction as cognizance of the offence\t had
\nbeen  taken on September 16, 1952, in contravention  of\t the
\nprovisions  of s. 23(3) of the Foreign\tExchange  Regulation
\nAct,  there being on that date no complaint in writing\tmade
\nby  an\tofficer\t authorised in that behalf  by\tthe  Central
\nGovernment  or the Reserve Bank of India by a general  or  a
\nspecial\t order.\t It is, therefore, necessary to see, in\t the
\ncircumstances  of the present case, on what date  cognizance
\nof  the\t offence  was taken.  In  order\t to  ascertain\tthis
\ncertain\t provisions of the Foreign Exchange  Regulation\t Act
\nand  the  Code\tof  Criminal  Procedure\t will  require\tcon-
\nsideration.    Under  s.  19(3)\t of  the  Foreign   Exchange
\nRegulation  Act a District Magistrate or Magistrate  of\t the
\nfirst  class may, on a representation in writing made  by  a
\nperson\tauthorized in this behalf by the Central  Government
\nor the Reserve Bank and having reasons to believe that there
\nhad been contravention of any of the revisions of that\tAct,
\nissue  a search warrant.  Inspector Mitra was so  authorized
\nby the Reserve Bank on September 11, 1952, and in  pursuance
\nof  that  authorization applied to the\tAdditional  District
\nMagistrate for the issue of a search warrant.  Under
\n102<\/span>
\nthis  section the search warrant is issued for the  purposes
\nof  conducting investigation under that Act.   On  September
\n16,  Mitra  applied  for a warrant  of\tarrest\tagainst\t the
\nappellant.   This application was obviously made  under\t the
\nCriminal Procedure Code, The offence which the appellant  is
\nalleged\t to  have committed was\t a  non-cognizable  offence.
\nUnder s. 155(2) of the Code of Criminal Procedure, no police
\nofficer\t shall investigate a non-cognizable offence  without
\nthe  order  of\ta Magistrate of the first  or  second  class
\nhaving\tpower  to  try such a case or commit  the  same\t for
\ntrial,\tor  of a Presidency Magistrate.\t  Inspector  Mitra’s
\napplication   definitely  states  that\the  in\tasking\t for
\npermission to investigate a non-cognizable offence under  s.
\n155,   Cr.  P.C.  The  order  of  the  Additional   District
\nMagistrate  directing the issue of a search warrant and\t the
\nword  ”\t permitted ” contained therein we consider,  in\t the
\ncontext\t of  the application, to mean that  he\tgranted\t the
\nsanction for investigation as asked for.  Under s. 155(3) of
\nthe  Code a police officer being permitted to investigate  a
\nnon-cognizable\toffence\t may  exercise the  same  powers  in
\nrespect\t of  the investigation as an officer incharge  of  a
\npolice\tstation\t may exercise in a cognizable  case,  except
\nthat  he has not the power to arrest without a warrant.\t  It
\nwas  necessary therefore for Inspector Mitra to obtain\tfrom
\nthe Additional District Magistrate a warrant of arrest.\t  It
\nis  clear,  therefore,\tthat upto September  16,  1952,\t the
\nAdditional  District Magistrate had not taken cognizance  of
\nany offence.\n<\/p>\n
On  September  19, 1952, the appellant appeared\t before\t the
\nAdditional  District Magistrate who recorded  the  following
\norder:-\n<\/p>\n
” He is to give bail of Rs. 50,000 with ten sureties of\t Rs.
\n5,000  each.   Seen Police report.  Time allowed  till\t19th
\nNovember,  1952, for completing investigation.” On  November
\n19,  1952,  on perusal of the police report  the  Magistrate
\nallowed\t further  time for investigation  until\t January  2,
\n1953, and on that date time was further extended to February
\n2,  1953.  in the meantime, on January 27,  1953,  Inspector
\nMitra had been -authorized under s. 23(3)(b) of the  Foreign
\nExchange Regulation Act to file a complaint.  Accordingly, a
\n103<\/span>
\ncomplaint  was\tfiled on February  2,1953.   The  Additional
\nDistrict Magistrate thereon recorded the following order:
\n”  Seen\t the  complaint filed to  day  against\tthe  accused
\nNarayandas  Bhagwandas Madhavdas under section 8(2)  of\t the
\nForeign\t Exchange  Regulation  Act  read  with\tSection\t 23B
\nthereof\t read  with Section 19 of the Sea  Customs  Act\t and
\nNotification  No. F.E.R.A. 105\/51 dated the  27th  February,
\n1951, as amended, issued by the Reserve Bank of India  under
\nSection\t 8(2) of the Foreign Exchange Regulation Act.\tSeen
\nthe  letter  of\t authority.   To Sri  M.  N.  Sinha,  S.D.M.
\n(Sadar), Magistrate 1st class (spl. empowered) for favour of
\ndisposal  according to law.  Accused to appear before  him.”
\nAccordingly,  on the same date Mr. Sinha then  recorded\t the
\nfollowing order:-\n<\/p>\n
”  Accused present.  Petition filed for reduction  of  bail.
\nConsidering  all facts, bail granted for Rs. 25,000  with  5
\nsureties.\n<\/p>\n
To 26th March, 1952 and 27th March, 1952 for evidence.”
\nIt  is clear from these orders that on September  19,  1952,
\nthe Additional District Magistrate had not taken  cognizance
\nof  the offence because he had allowed the police time\ttill
\nNovember 19, 1952, for completing the investigation.  By his
\nsubsequent   orders  time  for\tinvestigation  was   further
\nextended until February 2, 1953.  On that date the complaint
\nwas   filed  and  the  order  of  the  Additional   District
\nMagistrate clearly indicated that he took cognizance of\t the
\noffence and sent the case for trial to Mr. Sinha.  It  would
\nalso  appear  from the order of Mr. Sinha that\tif  the\t Ad-
\nditional  District  Magistrate did not take  cognizance,  he
\ncertainly did because he considered whether the bail  should
\nbe  reduced  and  fixed\t the 26th and  27th  of\t March,\t for
\nevidence.   It was, however, argued that when Mitra  applied
\nfor a search warrant on September, 16, 1952, the  Additional
\nDistrict  Magistrate  had  recorded  an\t order\tthereon,   ”
\nPermitted.  Issue search warrant.” It was on this date\tthat
\nthe  Additional District Magistrate took cognizance  of\t the
\noffence.   We cannot agree with this submission because\t the
\npetition of Inspector Mitra clearly states that ” As this is
\nnon-cognizable offence, I pray that you will kindly permit
\n104<\/span>
\nme  to\tinvestigate the case under section 155 Cr.   P.\t C.”
\nThat is to say, that the Additional District Magistrate\t was
\nnot  being asked to take cognizance of the offence.  He\t was
\nmerely\trequested to grant permission to the police  officer
\nto  investigate\t a  non-cognizable  offence.   The  petition
\nrequesting  the\t Additional District Magistrate to  issue  a
\nwarrant of arrest and his order directing the issue of\tsuch
\na  warrant cannot also be regarded as orders which  indicate
\nthat   the  Additional\tDistrict  Magistrate  thereby\ttook
\ncognizance  of\tthe offence.  It was clearly stated  in\t the
\npetition that for the purposes of investigation his presence
\nwas necessary.\tThe step taken by Inspector Mitra was merely
\na step in the investigation of the case.  He had not himself
\nthe power to make an arrest having regard to the  provisions
\nof s. 155(3) of the Code of Criminal Procedure.\t In order to
\nfacilitate  his\t investigation it was necessary for  him  to
\narrest\tthe  appellant and that he could not  do  without  a
\nwarrant\t of arrest from the Additional District\t Magistrate.
\nAs  already  stated, the order of  the\tAdditional  District
\nMagistrate of September 19, 1952, makes it quite clear\tthat
\nhe   was   still   regarding  the  matter   as\t one   under
\ninvestigation.\t It could not be said with any\tgood  reason
\nthat  the  Additional  District\t Magistrate  had  either  on
\nSeptember  16,\tor at any subsequent date upto\tFebruary  2,
\n1953, applied his mind to the case with a view to issuing  a
\nprocess\t against the appellant.\t The appellant had  appeared
\nbefore the Magistrate on February 2, 1953, and the, question
\nof  issuing  summons to him did not arise.   The  Additional
\nDistrict  Magistrate,  however, must be regarded  as  having
\ntaken  cognizance on this date because he sent the  case  to
\nMr.  Sinha  for\t trial.\t  There was  no\t legal\tbar  to\t the
\nAdditional  District  Magistrate taking\t cognizance  of\t the
\noffence\t on  February  2, 1953, as on  that  date  Inspector
\nMitra’s complaint was one which he was authorized to make by
\nthe  Reserve Bank under s. 23(3)(b) of the Foreign  Exchange
\nRegulation  Act.  It is thus clear to us, that on  a  proper
\nreading\t of  the  various  orders  made\t by  the  Additional
\nDistrict  Magistrate no cognizance of the offence was  taken
\nuntil  February 2, 1953.  The argument that he took  cogniz-
\nance of the offence on September 16, 1952, is without
\n\t\t\t    105<\/span>
\nfoundation.   The orders passed by the\tAdditional  District
\nMagistrate  on\tSeptember  16,\t1952,  September  19,  1952,
\nNovember  19, 1952, and January 2, 1953, were orders  passed
\nwhile the investigation by the police into a  non-cognizable
\noffence was in progress.  If at the end of the investigation
\nno complaint had been filed against the appellant the police
\ncould  have  under  the provisions of s.  169  of  the\tCode
\nreleased  him  on  his\texecuting a  bond  with\t or  without
\nsureties  to  appear  if and when  so  required\t before\t the
\nAdditional District Magistrate empowered to take  cognizance
\nof the offence on a police report and to try the accused  or
\ncommit him for trial.  The Magistrate would not be  required
\nto pass any further orders in the matter.  If, on the  other
\nhand,  after  completing the investigation a  complaint\t was
\nfiled,\tas  in\tthis  case, it would  be  the  duty  of\t the
\nAdditional  District Magistrate then to enquire whether\t the
\ncomplaint had been filed with the requisite authority of the
\nReserve\t Bank  as  required by s. 23(3)(b)  of\tthe  Foreign
\nExchange Regulation Act.  It is only at this stage that\t the
\nAdditional District Magistrate would be called upon to\tmake
\nup his mind whether he would take cognizance of the offence.
\nIf the complaint Was filed with the authority of the Reserve
\nBank,  as  aforesaid,  there would be no legal\tbar  to\t the
\nMagistrate  taking cognizance.\tOn the other hand, if  there
\nwas  no\t proper\t authorization\tto  file  the  complaint  as
\nrequired  by  s.  23  the  Magistrate  concerned  would\t  be
\nprohibited from taking cognizance.  In the present case,  as
\nthe requisite authority had been granted by the Reserve Bank
\non  January  27, 1953, to file a  complaint,  the  complaint
\nfiled  on  February  2,\t was one  which\t complied  with\t the
\nprovisions  of s. 23 of the Foreign Exchange Regulation\t Act
\nand the Additional District Magistrate could take cognizance
\nof  the\t offence which, indeed, he did on  that\t date.\t The
\nfollowing  observation\tby  Das Gupta, J., in  the  case  of
\nSuperintendent\tand  Remembrancer  of  Legal  Affairs,\tWest
\nBengal v. Abani Kumar Banerji<\/a> (1) was approved by this Court
\nin the case of
\nR.   R. Chari v. The State of Uttar Pradesh<\/a> (2) :-
\n(1)  A.I.R. (1950) Cal- 437.\n<\/p>\n
14<\/span><\/p>\n
(2) [1951] S.C.R. 312.\n<\/p>\n
106<\/span><\/p>\n
“What  is  taking  cognizance has not been  defined  in\t the
\nCriminal  Procedure Code and I have no desire to attempt  to
\ndefine it.  It seems to me clear however that before it\t can
\nbe  said  that any magistrate has taken\t cognizance  of\t any
\noffence under section 190(1)(a) Criminal Procedure Code,  he
\nmust  not only have applied his mind to the contents of\t the
\npetition but must have done so for the purpose of proceeding
\nin  a particular way as indicated in the  subsequent  provi-
\nsions  of  this\t Chapter-proceeding under  section  200\t and
\nthereafter  sending it for inquiry and report under  section\n<\/p>\n
202.   When  the  magistrate applies his mind  not  for\t the
\npurpose of proceeding under the subsequent sections of\tthis
\nChapter,  but  for taking action of some other\tkind,  e.g.,
\nordering  investigation under section’ 156(3), or issuing  a
\nsearch\twarrant\t for the purpose of  the  investigation,  he
\ncannot be said to have taken cognizance of the offence.”
\nIt  is, however, argued that in Chari’s case this Court\t was
\ndealing\t with  a matter which came under the  Prevention  of
\nCorruption  Act.   It seems to us, however,  that  makes  no
\ndifference.  It is the principle which was enunciated by Das
\nGupta,\tJ.,  which was approved.  As to when  cognizance  is
\ntaken  of  an  offence\twill  depend  upon  the\t facts\t and
\ncircumstances  of each case and it is impossible to  attempt
\nto define what is meant by taking cognizance.  Issuing of  a
\nsearch\twarrant for the purpose of an investigation or of  a
\nwarrant\t of arrest for that purpose cannot by themselves  be
\nregarded  as  acts  by\twhich cognizance  was  taken  of  an
\noffence.   Obviously, it is only when a\t Magistrate  applies
\nhis  mind  for the purpose of proceeding under\ts.  200\t and
\nsubsequent  sections of Chapter XVI of the Code of  Criminal
\nProcedure  or under s. 204 of Chapter XVII of the Code\tthat
\nit can be positively stated that he had applied his mind and
\ntherefore had taken cognizance.\n<\/p>\n
In  our\t opinion,  the\tproceedings  before  the  Additional
\nDistrict  Magistrate  and the trying  Magistrate  were\twith
\njurisdiction and the trial of the appellant was
\nlegal.\n<\/p>\n
The appeal is accordingly dismissed.\n<\/p>\n
107<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Narayandas Bhagwandas Madhavdas vs The State Of West Bengal on 7 May, 1959 Equivalent citations: 1959 AIR 1118, 1960 SCR (1) 93 Author: S J Imam Bench: Imam, Syed Jaffer PETITIONER: NARAYANDAS BHAGWANDAS MADHAVDAS Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT: 07\/05\/1959 BENCH: IMAM, SYED JAFFER BENCH: IMAM, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-108025","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNarayandas Bhagwandas Madhavdas vs The State Of West Bengal on 7 May, 1959 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/narayandas-bhagwandas-madhavdas-vs-the-state-of-west-bengal-on-7-may-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Narayandas Bhagwandas Madhavdas vs The State Of West Bengal on 7 May, 1959 - 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