M.L. Jain, J.
1. This order will dispose of three petitions Cr. M. (M) 99, 91 and 119 of 1982.
2. The respondent filed on 4-6-1980 a complaint against 8 accused persons under Sections 166, 167, 218, 343, 500 and 120-B I.P.C. The complainant examined himself and ten other witnesses. A question arose before the learned Magistrate whether any sanction for the prosecution was or was not necessary under Section 197 Cr.P.C. The learned Metropolitan Magistrate did not consider that any sanction for prosecution was necessary and directed issue of process against the accused by his order dated 9-9-1980. One of the accused Shri V.V. Nagarkar challenged this issue of process by a petition Cr.M.(M) 49/81 in this court. My decision in that petition was given on 23-7-1981 vide V. V. Nagarkar v. M.R. Dhawan, : 20(1981)DLT203 . I reproduce the relevant conclusions :
'I, thereforee, hold that no cognizance of the offences can be taken against the petitioner unless sanction of the appropriate Government is obtained. It should not be difficult to obtain such a sanction. In case it is refused unreasonably, then I think the complainant can move appropriate court for a direction to the Government to issue the necessary sanction.
Now, there is no more any need to examine the question of sanction under Section 196 Cr.P.C. It is also not necessary to go into the second question whether any case against petitioner is at all made out or not, for, I have determined the matter on the presumption that the alleged offences have been committed.
Consequently, I accept this petition and quash the impugned order in so far as it relates to the petitioner and the process issued against him. Records be sent back immediately. The case is already fixed for 27-7-1981, in the Power court.'
Before the arrival of the record, the Metropolitan Magistrate had already adjourned the case to 29-8-1981. On that date, an application was moved on behalf of the petitioners that previous sanction was necessary before taking cognizance against them as well and the complaint should be dismissed. Before this application could be disposed of, the Central Government granted sanction under Section 197 Cr.P.C. on 5-10-1981. On 17-10-1981 the complainant moved an application for placing the said sanction on record. It was also prayed for the issue of process against Nagarkar. The accused made an application on 21-11-1981 that since the sanction was granted after taking cognizance, it was of no utility and the complaint was liable to be dismissed.
3. The learned Magistrate by his impugned order of 10-2-1982, (1) did not proceed against Nagarkar and deleted his name from the array of accused, and (2) confined the court's observations to V.V. Nagarkar only and as regards the remaining seven accused, he said that he was precluded from reconsidering the earlier order made by his predecessor on 9-9-1980 that sanction was not necessary; he further held that the sanction filed was redundant. He, thereforee, rejected the applications of the petitioners. By a separate order of the same date, he adjourned the case to 6-3-1982 for evidence of the complainant before charge. Hence, these three petitions by Shri Charan Singh, Shri T. C. A. Srinivasavardhan, and Shri F.C. Sharma, in which they question the validity of the order of 10-2-1982. These do not seek to quash the separate order directing production of evidence. These are being disposed of by this common, order.
4. As far as the necessary for sanction is concerned, the facts and offence alleged being the same, in spite of Mr. Bhagat's attempt to show that the facts relating to Nagarkar were different from those of the present petitioners, I do not find any ground for reconsideration of my earlier conclusion dated 23-7-1981 that previous sanction was necessary for the reasons stated therein. To that extent, the impugned order of the learned Magistrate is erroneous. So, I hold that sanction is not redundant.
5. Now, the next question that falls for consideration is whether in the absence of previous sanction under Section 197 Cr.P.C. the complaint itself should have been dismissed and should now be directed to be dismissed in spite of the sanction. Placing reliance upon a decision of the Supreme Court in Nagraj v. State of Mysore, : 1964CriLJ161 , Mr. Goel urged that the complaint could not have been instituted without sanction, and the proceedings on a complaint instituted without sanction would be void. The court having no jurisdiction to take those proceedings, is not competent to pass any order except that the proceedings be dropped and the complaint be rejected, since no time could have been allowed to the complainant to obtain sanction : R.K. Singh and Anr., v. Jagarnath Bhagat 1977 Cri. L.J. 230 (3). But Nagraj (supra) was a case under Section 132 Cr. P.C. which provides that 'no prosecution can be instituted except with the sanction of the State Government.' Mr. Goel then referred to Section 270(1) of the Government of India Act, 1935 which provided that 'no proceedings civil or criminal' shall be instituted against any person, etc. except with the consent of the Government of India, etc. and Dr. Hori Ram Singh v. Emperor , and Suraj Parkash v. Emperor (5), wherein it was held that if the prosecution is defective for want of proper consent, the proceedings would be void and the complaint would be dismissed, leaving the door open for a fresh prosecution if consent of the Governor is afterwards obtained. Unless this view is strictly observed; the protection intended by the section will be seriously reduced. One cannot fail to see that the said Section 270, Government of India Act, like Section 132 Cr.P.C. also imposes a bar on institution of proceedings and not on taking cognizance. Nagraj, Hori Ram and Suraj Prakash (supra) thereforee, have here no application. Let us then, turn to the cases under Section 197 Cr.P.C.
6. In Amrik Singh v. State of Pepsu, : 1955CriLJ865 , it was held that grant of sanction under Section 197 Cr.P.C. must precede the institution of the prosecution, and absence of such sanction is fatal to the maintainability of the prosecution. In R. A. Goel v. Kartar Singh (1969) Delhi 1034 (7), it was held that where the facts alleged in the complaint reveal that sanction will be necessary the prosecution can be quashed at the very initial stage. If, however, the facts given in the complaint do not disclose that sanction is necessary, but the accused has to establish it by leading some evidence, the prosecution would not be quashed at the preliminary stage but the case would have to proceed to evidence. Mr. Goel emphasises the use of word 'prosecution' in these cases again to support his contention that a complaint filed without sanction was liable to dismissal. The word 'prosecution' here is used in a general sense. It is clear from Baijnath v. State of M.P. : 1966CriLJ179 , that the bar is on taking cognizance and not on institution of a complaint. There, the police submitted a charge sheet against the accused on 4-4-1953. On 6-4-1953 the Magistrate ordered that prosecution witnesses be summoned on a future date and that the accused be produced in court from the jail on that date. Sanction under Section 197 Cr.P.C. was given on 1-7-1953. It was held that the Magistrate took cognizance of the offence on 6-4-1953, and by then sanction had not been obtained. Observing that sanction has to be taken before cognizance of an offence has been taken, the court set aside the conviction. It is so because the bar created by Section 197 is couched in mandatory language and the court can dismiss or reject or return a complaint for want of sanction even after taking cognizance of the case : see Durga Prasad Khosla v. R.A. Rahmani, : AIR1965All208 and Vishvamohan Raghuvira-prasad Tiwari v. Mahadu Chaudhary, : AIR1964Bom191 . If a sanction is not produced at the time the learned Magistrate takes cognizance of the offence, the result would be the same as if there was no sanction : The State of Maharashtra v. Harshad K. Shah and Anr. (11). All the same, it seems to me that a distinction has to be drawn between institution of prosecution and taking cognizance of the offence. The Code has maintained this distinction in various sections thereof. Let me refer to a few. Section 132 provides that no prosecution shall be instituted without previous sanction. Section 195 and 196 provide that no cognizance shall be taken without previous sanction. Sections 198 and 199 provide that no cognizance shall be taken without a written complaint by a specified authority. Section 308 proviso second provides that no trial shall proceed for false evidence without sanction. There are statutes galore which provide that no complaint can be filed without previous consent or sanction. One cannot easily, thereforee, brush aside as bereft of significance this bold distinction between various stages of prosecution from institution onwards evidenced by use of different expressions. Consequently, a complaint will be incompetent only in cases where it is made without sanction, or consent, or without being in writing as the statute may have required. I am unable, however, to agree that a complaint in respect of which as prior sanction for institution is required, but subsequent to its institution it is discovered that a sanction was necessary for taking cognizance thereon, is not valid complaint and should be dismissed. I am rather inclined to think that whenever it appears to the court that cognizance could not be taken without sanction, then subject to the other rights of the accused, reasonable time should be allowed to the complainant to obtain requisite sanction and not to throw away the complaint forthwith. In Ramachandra Chaudhary v. The State of Bihar (12), the complainant filed a complaint on 30-8-1972. He also filed a petition to keep the complaint pending till he was able to obtain sanction of the Government against the accused. The case was adjourned and a long date was given but as no sanction order had been obtained, the complaint was eventually dismissed. The High Court did not object it seems to the grant of time and observed that the petitioner himself had applied that the com plaint should be kept pending for obtaining anction and since no sanction was obtained the Magistrate could not do anything except to pass the order that he had passed. That shows that time can be given to produce sanction. I, thereforee, hold that in this case, the complaint was validly instituted and cannot be dismissed for want of sanction after the sanction has been obtained clearing the decks for further prosecution. In the view I am taking, I have the support of the observations of Blacker J. in Arjan Singh v. Emperor AIR 1939 Lah 479 (13), I quote with respect, his observations :
'There appears to me to be a fundamental difference between the two sections. Section 270 creates a bar to the 'institution' of proceedings, that is to say to the act of a complainant making a complaint or of a police officer making a report as well as to the act of a Magistrate taking cognizance upon such complaint or report. What is barred by Section 197 Cr. P.C. appears to me to be not making of a complaint or the submitting of a police report but the act of a Magistrate in taking cognizance of the offence on such complaint or such report or in any other way. It is in my opinion, an error to regard the taking of cognizance as a single momentary act which can only be done once with regard to a particular offence. A study of the relevant sections indicates in my opinion, that the taking of cognizance is a continuous act which commences as soon as the Magistrate applies his mind to the case and only ends when the Magistrate no longer has seisin of it. In Section 191 of the Code, for instance, in a case where a Magistrate is clearly going to continue to take cognizance of a case the present tense is used, the words being 'when a Magistrate takes cognizance of 'an offince'. Similarly, in Section 200 the present tense is again used, namely 'a Magistrate taking cognizance of an offence on complaint' in a case where the Magistrate is going to continue to deal with the case himself. On the other hand, in Section 192, where a Magistrate is performing an act by which he divests himself of seisin of the case, 'he is described as a Magistrate who has taken cognizance'. It seems thereforee to me from the fad that the past tense is used in this case and the present tense is used where the Magistrate is continuing to deal with the offence himself that the taking of cognizance is clearly a continuous act.'
According to R.R. Chad v. The State of U.P. : 1951CriLJ775 , Mowu v. The Super intended, Special Jail, Nowgong, Assam and Ors., : (1971)3SCC936 , and H.S. Rains v. The State of U.P. : 1980CriLJ1308 , taking cognizance of an offence upon a complaint within the meaning of Section 190 only means that the Magistrate must apply his mind to the contents of the complaint before him for the purpose of proceeding under Section 200 and the other provisions of the Code following it. Blacker J. in Arjan Singh (supra), was of the view that if a Magistrate takes cognizance before sanction is received, it is only what he has done uptil that time that is void and cannot be revived. This does not mean that after saction has been received he cannot again commence to take valid cognizance. The complaint being still in existence, can form the basis for fresh cognizance. Mr. Bhagat on behalf of the respondent contended that the Code has made a well marked distinction between 'to take cognizance' in Section 190, 'taking cognizance' in Sections 191, 204 and 206, and 'after taking cognizance' in Section 192 and issue of process is a part of taking cognizance by the Magistrate and the sanction has been obtained and produced in this case while the complaint was alive and the Magistrate was still in the process' of taking cognizance and it cannot legitimately be said that the sanction was produced after cognizance had been taken. The Scheme of the Code seems to support what Mr. Bhagat has canvassed. Headings in the Code show that Chapter XIV of the Code, that is Sections 190 to 199, provide for conditions' requisite for initiation of proceedings. Proceedings commence under Chapter XVI with the issue of process against the accused under Section 204. Proceedings do not commence with the various steps taken under Sections 200 and 202 and consideration of a complaint under Section 203 grouped under Chapter XV. Section 197 read with Section 190 shows that the word 'cognizance' in this section indicates the stage of initiation of proceedings against a public servant, vide last sentence of para 6 col. 1 of page 209 of R.R. Chari (supra). Cognizance does not necessarily begin simultaneously with examination under Section 200 because in case of a complaint by a public servant, such examination has been dispensed with. I am, however, not as at present advised, prepared to accept the argument of Mr. Bhagat in so far as Section 197 Cr. P.C. is concerned. It seems to me and so I hold that previous sanction under Section 197 Cr.P.C. is required before the very commencement of the process of taking cognizance.
7. But the last of the contentions of Mr. Bhagat must succeed. It is that failure to furnish sanction before cognizance is taken and production thereof after process is issued but pre-charge evidence is not yet commenced, is not an illegality and is at best a curable irregularity under Section 465 of the 1973 Code. He submitted that the proceedings from Sections 190 to 203 Cr.P.C. are in the nature of an exploratory or confirmatory inquiry and are comparable to investigation and a defect or an illegality in them if there be any do not vitiate the result unless miscarriage of justice has been caused thereby. Mr. Bhagat for this proposition relied upon H.N. Rishbud v. State of Delhi, : 1955CriLJ526 , which dealt with the effect of an illegality in investigation. On the other hand, it was strenuously urged by Mr. Goel that proceedings taken without sanction are proceedings without jurisdiction and, thereforee, a nullity and nothing can cure them. He relied upon Gokulchand Dwarkadas Morarka v. The King (18), where the Privy Council observed that the sanction to prosecute is an important matter. It constitutes a condition precedent to the institution of the prosecution. Where the sanction is invalid, the trial court would not be a court of competent jurisdiction. This being so, a defect in the jurisdiction of the court can never be cured under Section 537, Cr. P.C., 1898. Mr. Goel next relied upon Santa Singh v. The State of Punjab AIR 1976 SC 2386 (19), which held that where disobedience of an express provision of the Code as to the mode of trial was such as went to the root of the matter, the resulting illegally is of such a character that it vitiates the sentence and is not curable under Section 465 Cr.P.C. But the sheet anchor of the argument of Mr. Goel is Baijnath (supra), where sanction was given after the order to summon witnesses and to produce the accused was made but before the prosecution evidence commenced and yet the trial was held invalid. But in that case the effect of Section 537 was not considered at all and it further appears to me that the decision would have perhaps been otherwise if the Magistrate had proceeded to take fresh cognizance after sanction was received. The correct legal position was explained in Pulukuri Kottava and Ors. v. Emperor AIR 1947 PC 57(20), wherein it was observed that an irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction between an illegality and an irregularity is one of degree rather than of kind. If the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537. Its successor Section 465 in the new Code now seems to have put the matter to rest. It provides that no order shall be reversed or altered on account of any error or irregularity in any sanction for prosecution unless a failure of justice has in fact been occasioned thereby.
8. The Magistrate took cognizance in this case on 9-9-1980 and this process was interrupted by the revision petition in this court. This court held that sanction for prosecution was necessary. Since the complaint had not yet been rejected and the complainant was meanwhile able to obtain sanction, the Magistrate could, after the sanction was filed, take fresh cognizance and then ask the complainant to again examine himself and other witnesses under Section 200 and then issue the process under Section 204 and if he had done so, or if he was now directed to proceed in the manner, what will he the result The same complainant and the selfsame witnesses will be examined and the process will be issued which will result in extra delay and harassment to the parties not for the purpose of ensuring the course of justice but for the sake of sheer technicality. If the Magistrate proceeds as he did against the petitioners, he purported to take fresh and post sanction cognisance by rejecting their applications and proceeded to make an order under Section 244(1) by directing production of witnesses on an adjourned date, but without compliance with Section 200 Cr.P.C. and that, I consider, is not fatal to the prosecution. The inquiry evidence under Section 200 having been recorded without previous sanction will at best be treated as no evidence and can be ignored. Even otherwise it cannot be used as evidence against the accused. It can be used by them as previous statements for purposes of cross-examination under Section 145 Evidence Act. Non-compliance of Section 200, thereforee, is not an illegality affecting his competence. The object of Section 200 is to ascertain whether there is a prima facie case against the accused and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass him : Nirmaljit Singh Hoon v. State of West Bengal : 2SCR66 . Non-compliance with the provisions of Section 200, thereforee, is merely an irregularity curable under the first part of Section 465 Cr. P.C. if it does not occasion a failure of justice : vide Baldewa v. Emperor : AIR1933All816 , S. Gurdial Singh and Ors., v. Abhey Dass, , and Lakshman Jena v. Sudhakar Palta Singh, : AIR1969Ori149 . The accused are already before the learned Magistrate and no prejudice or failure of justice has occasioned nor will there be any if the Magistrate now proceeds to record pre-charge evidence.
I, thereforee, dismiss these petitions.