S.N. Katju, J. - (1.) THE Appellant - -Ram Lautan Pande - -was charged Under Section 161 IPC and Section 5(2) of the UP Prevention of Corruption Act. It was alleged that he had accepted illegal gratification of Rs. 40/ - while acting as a Public servant in the Government Roadways Bus Station at Fatehpur on 17 -4 -1960. The court below convicted the Appellant under the aforesaid sections and sentenced him to one year's R.I. Under Section 5(1)(d) and (2) of the Prevention of Corruption Act but did not impose any separate sentence Under Section 161 IPC.
(2.) ONE of the questions raised before the learned Special Judge was whether there was a proper sanction for the prosecution of the case against the Appellant. The validity of the sanction (Ext. Ka 13) was assailed on three grounds: viz. (1) that it was accorded after the Special Judge had taken cognizance of the case, (2) that it had been accorded by the Deputy Transport Commissioner UP and not by the Transport Commissioner, (3) that it had been accorded by the Transport Commissioner without applying his mind to the facts of the case. Admittedly the sanction was given on 24 -7 -1967. The investigating agency submitted the, charge -sheet on 24 -9 -1966. The case I was put up before Sri Srivastava, Special Judge on 25 -5 -1967. He issued I summons for the appearance of the Appellant before him on 1 -6 -1967. Sri Srivastava was subsequently transferred and the case came before Mirza Murtiza Husain, Special Judge, who tried and convicted the Appellant as stated above. The learned Special Judge appears to have been in error in holding that since nothing was done by Sri Srivastava besides issuing summons to the Appellant for appearance in his Court and the proceedings before him viz. Mirza Murtiza Husain, started after sanction had been accorded on 24 -7 -1967 therefore the proceedings in the case were not vitiated on account of want of a valid sanction for the prosecution of the Appellant. The investigation in the case had been completed before 24 -5 -1967 when the charge sheet was presented before Sri Srivastava. The learned Special Judge issued summons to the Appellant for appearance in his court. Admittedly there was no sanction for prosecuting the Appellant on 25 -5 -1967. Once the Special Judge issued summons to the Appellant for his appearance in court that amounted to taking cognizance of the case. It was observed by the Supreme Court in R.R. Chari v. State of UP : AIR 1951 SC 207: Moreover, in the present case, on 25 -3 -1949 the Magistrate issued a notice Under Section 190 Code of Criminal Procedure against the Appellant and made it returnable on 2 -5 -1949. That clearly shows that the Magistrate took cognizance of the offence only on that day and acted Under Section 190 Code of Criminal Procedure. The Supreme Court in Narayandas Bhagwandas Madhavdas v. State of West Bengal : AIR 1959 SC 1118 observed as follows: As to when the 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 is taken of an offence. It is only when a Magistrate applies his mind for the purpose of proceedings Under Section 200 and subsequent sections of Ch. XVI of the Code of Criminal Procedure or Under Section, 204 Ch. 17 of the Code that it can be positively stated that he had applied his mind and therefore, had taken cognizance.
(3.) IN the present case the learned Special Judge, when he issued summons to the Appellant on 25 -5 -1967 for his appearance in his court, had taken cognizance of the case and was acting Under Section 204 Code of Criminal Procedure. The stage of investigation was over, a charge -sheet had been submitted before him and the issue of summons to the Appellant clearly amounted to taking cognizance of the case by the learned Judge.;