P. Venkatarama Reddi, J. -
(1.)This special leave petition arises out of the order passed by the learned single Judge of the High Court of Gujarat rejecting the revision application filed by the petitioner herein against the order of Addl. Sessions Judge, Ahmedabad. A charge-sheet for offences punishable under Ss. 120-B, 121, 121-A, 122, 123, 212 and under Ss. 25(1)(A) and (B), 27 of the Arms Act came to be filed by the police on 12th April, 2000 in the Court of Metropolitan Magistrate. The petitioner figures as accused No. 9 therein. The case being triable exclusively by the Court of Sessions, the learned Magistrate submitted the case to the Court of City Sessions by an order dated 4-5-2000. Sanction for prosecution as required by Section 196(1) of the 7th May, 2000, such sanction being necessary in view of the fact that the petitioner stands accused of some of the offences falling under Chapter VI of the Indian Penal Code viz. collection of arms for the purpose of waging war against the Government etc. Sanction accorded by the State Government was produced before the Court of Sessions before the charge was framed against the petitioner-accused. The petitioner applied to the Court of Sessions for discharge on the ground that there was no prima facie evidence to frame the charge against him. That application was rejected by the learned Addl. Sessions Judge, Ahmedabad. Thereupon, a revision-petition was filed in the High Court under Ss. 397/401, Cr. P.C. In that revision an additional ground was raised for the first time that the entire proceedings including committal of the case to the Court of Sessions are vitiated by illegality for want of sanction under S. 196, Cr. P.C. and, therefore, the criminal proceedings cannot go on against him. The High Court by the impugned order dated 31-11-2001 dismissed the revision-application, rejecting both the grounds urged. Hence, this special leave petition. After notice to the State, we have heard the learned counsel.
(2.)We are concerned here with the second ground, that is to say, the effect of non-production of sanction order before the learned Magistrate who committed the case to the Court of Sessions as that is the only point urged before us. The High Court was of the view that while committing the case to the Court of Sessions, the Magistrate cannot be said to have taken cognizance of the offence. "It cannot be laid down," observed the learned Judge "that unless Magistrate takes cognizance, he cannot commit the case to the Court of Sessions." The learned Judge, after referring to the decisions of Calcutta and Kerala High Courts, observed thus : "In both the decisions relied upon on behalf of the petitioner, it has been laid down that the committal proceedings is an enquiry before the Magistrate. It is not necessary, therefore, that during the enquiry, Magistrate is obliged to take cognizance of the offence. The glaring example is in S. 200, Cr. P.C. when Magistrate conducts enquiry before issuing process under S. 204. . . . . . . . . ." The learned Judge of the High Court therefore held that the ban under S. 196(1) is not attracted to the committal proceedings. The correctness of the view taken by the High Court has been questioned before us.
(3.)Section 196(1) of the Code of Criminal Procedure enjoins that "no Court sall take cognizance of any offence punishable under Chapter VI of the Indian Penal Code, except with the previous sanction of the Central Government or of the State Government." The sanction of the Government is thus a pre-condition for the cognizance of the offences specified in various clauses of S. 196. Section 193 enacts a bar against the Court of Sessions taking cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the provisions of the Code. However, if the Code or any law in force expressly provides for the Court of Sessions directly taking cognizance, the fetter under S.193 does not apply. The other provision which deserves notice is S. 209. It provides for commitment of case if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions. In R. R. Chari vs. State of U.P. (1951) SCR 312, this Court observed, relying on the dicta in Gopal Marwari vs. Emperor (AIR 1953 Pat 245) that the word 'cognizance' was used in the Code to indicate a point when a Magistrate or a Judge first takes judicial notice of an offence and that itis a differnt thing from the initiation of proceeding. The following exposition of law by Das Gupta,J. in Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Abani Kumar Banerjee (AIR 1950 Cal 457) was quoted with approval by the Supreme Court :
"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 S. 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under S. 200 and thereafter sending it for inquiry and report under S. 202. When the Magistrate applies his mind not for the puprose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under S. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."