Supreme Court of India

STATE OF KARNATAKA AND ANR.versusPASTOR P. RAJU

Citation: 2006 INSC 490
Decided: 4 August 2006
Disposal: Appeal(s) allowed
Bench: G P MATHUR

Holding

Section 196(1A) CrPC bars only the taking of cognizance by a court; it does not require prior sanction for registration, investigation, arrest or remand, and therefore the High Court erred in quashing the proceedings.

Summary

Pastor P. Raju was arrested and remanded to judicial custody after an FIR was lodged under Section 153B IPC for allegedly urging Hindus to convert to Christianity. He filed a petition under Section 482 of the CrPC seeking to quash the criminal proceedings, contending that a prior sanction under Section 196(1A) CrPC was required for registration, investigation, arrest and remand. The Karnataka High Court quashed the proceedings, holding that the lack of such sanction rendered the case illegal. The Supreme Court held that Section 196(1A) creates a bar only on a court taking cognizance of the offence, not on the police registering a case, investigating, arresting or remanding the accused. An order of remand under Section 167 CrPC does not amount to taking cognizance. Consequently, the High Court erred in exercising its inherent power under Section 482 to quash the case at the investigation stage. The appeal was allowed and the High Court order set aside.

Issues considered

Whether a prior sanction under Section 196(1A) CrPC is required for registration of an FIR, investigation, arrest, and remand in offences punishable under Section 153B IPC.
Whether the magistrate's order of remand to judicial custody constitutes taking cognizance of the offence within the meaning of Section 196(1A).
Whether the High Court can quash criminal proceedings at the investigation stage under Section 482 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 167, s. 173, s. 190, s. 196(1A), s. 436, s. 482
Indian Penal Code, 1860s. 153B, s. 505

Subjects

Section 196(1A) CrPCprior sanctioncognizanceSection 153B IPCreligious conversionSection 482 CrPCquash of proceedingsinvestigation stagejudicial custodymagistrate remand

Judgment

STATE OF KARNA TAKA AND ANR. A
v.
PASTOR P. RAJU

AUGUST 4, 2006

[G.P. MATHUR AND DALVEER BHANDARI, JJ.] B

Criminal Procedure Code, 1973-Sections 173, 196(1A) and 482-lndian
Penal Code, 1860-Section 153B-Criminal case registered against accused
under section l 53B lPC-Accused was arrested and was remanded to judicial C
custody by Magistrate-Petition before High Court filed by the accused to
quash the criminal proceedings-High Court quashed the proceedings on the
ground that previous sanction required under section 196(JA) Cr.P.C. from
appropriate authority has not been obtained-Correctness of-Held, previous
sanction is required only for taking cognizance of an offence by Court and not
for registration of a criminal case and conducting investigation thereof- D
Order of Magistrate remanding an accused judicial to custody for investigation
does not amount to taking cognizance of an offence by Court-On facts, the
criminal proceedings was only at investigation stage-Inherent power cannot
be exercised by High Court to interfere with the statutory power of police to
conduct investigation in a cognizable offence-Hence, the High Court was in E
error in quashing the criminal proceedings.

Respondent, who is a member of Christian community, made an
appeal to people to get themselves converted to Christian religion and
thereby entitling themselves many benefits and. facilities. An FIR was
lodged and a case has been registered against the respondent under section p
1538 IPC. The respondent was arrested by the police and was produced
before a Magistrate who remanded him to judicial custody. The
respondent moved a bail application before the Magistrate which was
rejected on the ground that the offence is a non-bailable offence. The
respondent filed a petition under section 482 Cr.P.C. before High Court
to quash the criminal proceedings initiated against him contending that G
the criminal proceedings initiated under section 1538 IPC were illegal and
without jurisdiction on the ground of non-obtaining of the required
previous sanction from appropriate authority under section 196(1A)
Cr.P.C. The High Court allowed the petition of the respondent and
269 H
270 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A quashed the criminal proceedings. Hence the appeal.

Allowing the appeal, the Court

HELD: I.I. The bar created under section 196(1A) IPC is against
taking of cognizance of an offence by the Court. There is no bar against
B registration of a criminal case or investigation by the police agency or
submission of a report by the police on completion of investigation as
contemplated by Section 173 Cr.P.C. If a criminal case is registered,
investigation of the offence is done and the police submits a report as a
result of such investigation before a Magistrate without the previous
sanction of the Central Government or of the State Government or of the
C Dist.rict Magistrate, there will be no violation of Section 196(1A) Cr.P.C.
and no illegality of any kind would be committed. 1274-B-D]

1.2. The cognizance of an offence is taken at the initial stage when
the Magistrate applies his judicial mind to the facts mentioned in a
D complaint or to police report or upon information received from any other
person that an offence has been committed. The issuance of process is at
a subsequent stage when after considerin~ the material placed before it
the Court decides to proceed against the offenders against whom a prima
facie case is made out. Neither any complaint had been filed nor any police
report had been submitted nor any information had been given by any
E person other than the police officer before the Magistrate competent to
take cognizance of the offence. The Magistrate had merely passed an order
remanding the respondent to judicial custody. A limited role has to be
performed by the Judicial Magistrate to whom the accused has been
forwarded, viz., to authorize his detention under section 167 Cr.P.C. This
F is anterior to Section 190 Cr.P.C. which confers power upon a Magistrate
to take cognizance of an offence. Therefore, an order remanding an
accused to judicial custody does not amount to taking cognizance of an
offence. In such circumstances, Section I 96(1A) Cr.P.C. can have no
application at all and the High Court clearly erred in quashing the
proceedings on the ground that previous sanction of the Central
G Government or of the State Government or of the District Magistrate had
not been contained. '.fhe specified authority empowered to grant sanction
docs so after applying his mind to the material collected during the course
of investigation. There is no occasion for grant of sanction soon after the
FIR is lodged nor such a power can be exercised before completion of
H investigation and collection of evidence. Therefore, the whole premise on
STATE OF KARNATAKA v. PASTOR P. RAJU 271
the basis of which the proceedings have been quashed by the High Court A
is wholly erroneous in law and is liable to be set aside.
[276-B-H; 277-A-Cj

R.R. Chari v. Stale of U.P., AIR (1951) SC 207; Darshan Singh Ram
Krishan v. State of Maharashtra, AIR (1971) SC 2372; Narayandas
Bhagwandas Madhavdas v. The State of West Bengal, AIR (1959) SC 1018; B
Kishun Singh and Ors. v. State of Bihar, [1993[ 2 SCC 16 and State of West
Bengal v. Mohd. Khalid and Ors., [1995[ I SCC 684, referred to.

1.3. No report as contemplated by Section 173 Cr.P.C. had been
submitted by the incharge of the police station concerned to the Magistrate C
empowered to take cognizance of the offence. Section 482 Cr.P.C. saves
inherent powers of the High Court and such a power can be exercised to
prevent abuse of the process of any Court or otherwise to secure the ends
of justice. This power can be exercised to quash the criminal proceedings
pending in any Court but the power cannot be exercised to interfere with
the statutory power of the police to conduct investigation in a cognizable D
offence. The High Court ought not to have interefered with and quashed
the entire proceedings in exercise of power conferred by Section 482
Cr.P.C. when the matter was still at the investigation stage.
[277-D-E; 278-A-BJ

Union of lndi.i v. Prakash P. Hinduja and Anr., [2003] 6 SCC 195; King E
Emperor v. Khwaja Nazir Ahmad, AIR (1945) PC 18; H.N. Rishbud and lnder
Singh v. The State of Delhi, AIR (1955) SC 196; State of West Bengal v. SN
Basak, AIR (1963) SC 447; Abhinandan Jha and Ors. v. Dinesh Mishra, AIR
(1968) SC 117 and State of Bihar and Anr. v. JAC Saldanha and Ors., [1980[
1 sec 554, referred to.
F
4. The High Court has observed in its judgment that the initiation
of criminal proceedings is abuse of process of Court and miscarriage of
justice. No reasons in support of the observation have been given. The case
was still under investigation and the police was in the process of collecting
evidence. The sweeping remark made by the High Court in the
circumstances of the case was wholly unjustified. [278-Cj G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 814
of 2006.

From the Order dated 23.2.2005 of the High Court of Karnataka at
Bangalore in Criminal Petition No. 437/2005. H
272 SL:PREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A Sanjay R. Hegde for the Appellants.

Jawahar Raja, P. Ramesh Kumar and Aparna Bhat for the Respondent.

The Judgment of the Court was delivered by

B G.P. MATHUR, J. Leave· granted.

2. This appeal, by special leave, has been preferred against the judgment
and order dated 23.2.2005 of Karnataka High Court by which initiation of
criminal proceedings against the respondent under Section 153-B IPC were
quashed in exercise of jurisdiction under Section 482 Cr.P.C.
c 3. One R.N. Lokesha son of R.S. Narayanappa resident of Ramapura,
Channapatna, lodged an FIR alleging that at about 7.30 p.m. on 14.1.2005,
he along with some other persons was celebrating Sankranthi festival when
the respondent Pastor P. Raju, who is a member of Christian community,
came there and made an appeal to them to get converted to Christian religion
D where they would get many benefits and facilities which were not available
to them in Hindu religion to which they belong. It is also alleged that many
persons who were present there resented the appeal made by the respondent
and strongly opposed the plea or assertion for their conversion from Hindu
religion to Christian religion. On the basis of the FIR, a case as Crime No.8
E of 2005 was registered under Section 153-B !PC at the concerned police
station. The respondent was arrested on 15.1.2005 and was produced before
a Magistrate on the same day who remanded him to judicial custody as no
application for bail had been filed. Subsequently, a bail application was moved
und<:r Section 436 Cr.P.C. before the learned Magistrate which was rejected
on the ground that the offence under Section l53-B IPC being a non-bailable
F offence, the power under the aforesaid provision could not be exercised as
the said provision empowered the Court to grant bail in bailable offences
only. The respondent filed a petition under Section 482 Cr.P.C. on 27.1.2005
for quashing of the proceedings initiated against him under Section 153-B
IPC in case Crime No.8 of 2005. This petition was allowed by the High
G Court by the order un'.ler challenge and the entire proceedings initiated against
the re5pondent were quashed.

4. The principal submission which was made before the High Court on
behalf of the respondent was that before initiating any proceedings under
Section 153-B IPC, the police ought to have obtained previous sanction of
H the Central Government or of the State Government or of the District
STATEOFKARNATAKAv. PASTORP. RAJU [G.P. MATHUR,J.] 273
Magistrate as required by Section 196(1-A) Cr.P.C. and in the absence of A
such a sanction having been obtained, the proceedings initiated against the
respondent were illegal and without jurisdiction. After hearing counsel for
the parties, the learned judge framed the question for consideration in the
following manner :-

"Having heard the arguments of the learned counsel appearing for the B
petitioner and the learned H.C.G.P. for the respondent/State, the point
that arises for my consideration and decision is whether initiation of
cdminal proceedings against the petitioner is bad in law and whether
prior sanction to prosecute a person who tries to instigate Hindus to
convert into Christianity requires any prior sanction to register a case C
and arrest the accused under Section 153-B (I) of !PC ?"

(emphasis supplied)

5. The High Court has held that as the investigating agency had not
obtained previous sanction of the Central Government or of the State D
Government or of the District Magistrate as required by Section 196( I-A)
Cr.P.C., the initiation of criminal proceedings against the respondent is bad
in law and consequently it was liable to be quashed.

6. We have heard learned counsel for the appellant State of Karnataka,
learned counsel for tne respondent Pastor P. Raju and have perused the record. E
7. The heading of Chapter XIV of Code of Criminal Procedure is
"Conditions Requisite For Initiation Of Proceedings". The first provision in
this Chapter is Section 190 and it deals with the power of the Magistrate to
take cognizance of offences. There are some other provisions in this Chapter
which create an embargo on the power of the Court to take cognizance of F
offences committed by persons enumerated therein except on the complaint
in writing of certain specified persons or with the previous sanction of certain
spt;cified authorities. Section 196(1-A) Cr.P.C. with which we are concerned
here reads as under :-
G
"196(1-A). No Court shall take cognizance of

(a) any offence punishable under Section 153-B or sub-section (2)
or sub-section (3) of Section 505 of the Indian Penal Code, 1860
(45 of 1860), or
{b) a criminal conspiracy to commit such offence. H
274 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A except with the previous sanction of the Central Government or of
the State Government or of the District Magistrate."

A plain reading of this provision will show that no Court can take
cognizance of an offence punishable under Section 153-B or sub-section (2)
or sub-section (3) of Section 505 of Indian Penal Code or a criminal conspiracy
B to commit such offence except with the previous sanction of the Central
Government or of the State Government or of the District Magistrate. The
opening words of the Section are ··No Court shall take cognizance" and
consequently the bar created by the provision is against taking of cognizance
by the Court. There is no bar against registration of a criminal case or
C investigation by the police agency or submission of a report by the police on
completion of investigation, as contemplated by Section 173 Cr.P.C. If a
criminal case is registered, investigation of the offence is done and the police
submits a report as a result of such investigation before a Magistrate without
the previous sanction of the Central Government or of the State Government
or of the District Magistrate, there will be no violation of Section 196( I-A)
D Cr.P.C. and no illegality of any kind would be committed.

8. After the FIR had been lodged and a criminal case had been registered
against the respondent under Section 153-B IPC, the police arrested him as
the offence disclosed was a cognizable offence. Thereafter, the respondent
E was produced before a Magistrate and the Magistrate remanded him to judicial
custody. The High Court seems to have taken the view that as the learned
Magistrate remanded the respondent to judicial custody when he was produced
before him in accordance with Section 167 Cr.P.C., it amounted to taking
cognizance of the offence. The question that arises is whether passing of an
order of remand would amount to taking of cognizance of the offence.
F
9. Severa! provisions in Chapter XIV of the Code of Criminal Procedure
use the word "cognizance". The very first Section in the said Chapter, viz.,
Section 190 lays down how cognizance of offences will be taken by a
Magistrate. However, the word "cognizance" has not been defined in the
Code of Criminal Procedure. The dictionary meaning of the word ·'cognizance"
G is - 'judicial hearing of a matter'. The meaning of the word has been explained
by judicial pronouncements and it has acquired a definite connotation. The
earliest decision of this Court on the point is R.R. Chari v. State of UP., AIR
(1951) SC 207, wherein it was held :-

H "Taking cognizance does not involve any formal action or indeed
action of any kind but occurs as soon as a Magistrate as such applies
STATE OF KARNATAKA v. PASTOR P. RAJU [MATHUR. J.] 275
his mind to the suspected commission of an offence." A
In Darshan Singh Ram Kishan v. Stale of Maharashtra, AIR (197 l) SC
2372, while considering Section 190 of the Code of 1908, it was observed
that "taking cognizance does not involve any formal action or indeed action
of any kind but occurs as soon as a Magistrate as such applies his mind to
the suspected commission of an offence. Cognizance, therefore, takes place B
at a point when a magistrate first takes judicial notice of an offence. This is
the position whether the magistrate takes cognizance of an offence on a
complaint, or on a police report, or upon information of a person other than
a police officer." In Narayandas Bhagwandas Madhavdas v. The State of
West Bengal, AIR (1959) SC 1118 it was held that before it can be said that C
any Magistrate has taken cognizance of any offence under Section 190(1 )(a)
Criminal Procedure Code, he must not only have applied his mind to the
contents of the petition but must have done so for the purpose of proceeding
in a particular way as indicated in the subsequent provisions of the Chapter-
proceeding under Section 200 and thereafter sending it for inquiry and report
under Section 202. It was observed that there is no special charm or any D
magical formula in the expression "taking cognizance" which merely means
judicial application of the mind of the Magistrate to the facts mentioned in
the complaint with a view to taking further action. It was also observed that
what Section 190 contemplates is that the Magistrate takes cognizance once
he makes himself fully conscious and aware of the allegations made in the E
complaint and de~ides to examine or test the validity of the said allegations.
The Court then referred to the three situations enumerated in sub-section (I)
of Section 190 upon which a Magistrate could take cognizance. Similar view
was expressed in Kishun Singh & Ors. v. State of Bihar, [1993] 2 SCC 16
that when the Magistrate takes notice of the accusations and applies his mind
to the allegations made in the complaint or police report or information and F
on being satisfied that the allegations, if proved, would constitute an offence,
decides to initiate judicial proceedings against the alleged offender, he is said
to have taken cognizance of the offence. In State of West Bengal v. Mohd.
Khalid & Ors., [ 1995] I SCC 684 the Court after taking note of the fact that
the expression had not been defined in the Code held :-
G
" ......... In its broad and literal sense, it means taking notice of an
offence. This would include the intention of initiating judicial
proceedings against the offender in respect of that offence and taking
steps to see whether there is any basis for initiating judicial proceedings
or for other purposes. The word 'cognizance' indicates the point H
276 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A when a Magistrate or a Judge first takes judicial notice of an offence.
It is entirely a different thing from initiation of proceedings; rather it
is the condition precedent to the initiation of proceedings by the
Magistrate or the Judge. Cognizance is taken of cases and not of
persons."

B It is necessary to mention here that taking cognizance of an offence is
not the same thing as issuance of process. Cognizance is taken at the initial
stage when the Magistrate applies his judicial mind to the facts mentioned in
a complaint or to police report or upon information received from any other
person that an offence has been committed. The issuance of process is at a
C subsequent stage when after considering the material placed before it the
Court decides to proceed against the offenders against whom a prima facie
case is made out.

I 0. In the present case neither any complaint had been filed nor any
police report had been submitted nor any information had been given by any
D person other than the police officer before the Magistrate competent to take
cognizance of the offence. After the FIR had been lodged and a case had
been registered under Section 153-B IPC, the respondent was arrested by the
police and thereafter he had been produced before the Magistrate. The
Magistrate had merely passed an order remanding him to judicial custody.
Section 167 Cr.P.C. finds place in Chapter XII which deals with Information
E To The Police And Their Powers To Investigate. This Section gives the
procedure which has to be followed when investigation cannot be completed
within twenty-four hours and requires that whenever any person is arrested
and detained in custody and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed by Section 57 and
F there are grounds for believing that the accusation or information is well
founded, he shall be forthwith transmitted to the nearest Judicial Magistrate
along with copy of the entries in the diary. Sub-section (2) of Section 167
will show that even a Magistrate who has no jurisdiction to try the case can
authorize the detention of the accused. A limited role has to be performed by
the Judicial Magistrate to whom the accused has been forwarded, viz., to
G authorize his detention. This is anterior to Section 190 Cr.P.C. which confers
power upon a Magistrate to take cognizance of an offence. Therefore, an -~

order remanding an accused to judicial custody does not amount to taking
cognizance of an offence. In such circumstances Section 196(1-A) Cr.P.C.
can have no application at all and the High Court clearly erred in quashing
H the proceedings on the ground that previous sanction of the Central
STATE OF KARNATAKAv. PASTORP. RAJU [G.P. MATHUR,J.] 277

Government or of the State Government or of the District Magistrate had not A
been obtained. It is important to note that on the view taken by the High
Court, no person accused of an offence, which is of the nature which requires
previous sanction of a specified authority before taking of cognizance by the
Court, can ever be arrested nor such an offence can be investigated by the
police. The specified authority empowered to grant sanction does so after
applying his mind to the material collected during the course of investigation. B
There is no occasion for grant of sanction soon after the FIR is lodged nor
such a power can be exercised before completion of investigation and
collection of evidence. Therefore, the whole premise on the basis of which
the proceedings have been quashed by the High Court is wholly erroneous
in law and is liable to be set aside. C
11. There is another aspect of the matter which deserves notice. The
FIR in the case was lodged on 15.1.2005 and the petition under Section 482
Cr.P.C. was filed within 12 days on 27. 1.2005 when the investigation had
just commenced. The petition was allowed by the High Court on 23.2.2005
when the investigation was still under progress. No report as contemplated by D
Section 173 Cr.P.C. had been submitted by the incharge of the police station
concerned to the Magistrate empowered to take cognizance of the offence.
Section 482 Cr.P.C. saves inherent powers of the High Court and such a
power can be exercised to prevent abuse of the process of any Court or
otherwise to secure the ends of justice. This power can be exercised to quash E
the criminal proceedings pending in any Court but the power cannot be
exercised to interfere with the statutory. power of the police to conduct
investigation in a cognizable offence. This question has been examined in
detail in Union of India v. Prakash P. Hinduja & Anr., [2003) 6 SCC 195,
where after referring to King Emperor v. Khwaja Nazir Ahmad, AIR (1945) ·
PC 18, H.N. Rishbud & Inder Singh v. The State of Delhi, AIR (1955) SC F
196, State of West Bengal v. SN Ba.rak, AIR (1963) SC 447, Abhinandan Jha
& Ors. v. Dinesh Mishra, AIR ( 1968) SC 117 and State of Bihar & Anr. v.
JAC Saldanha & Ors., [1980) I SCC 554, it was observed as under in para
20 of the reports:-

"20. Thus the legal position is absolutely clear and also settled by G
judicial authorities that the Court would not interfere with the
investigation or during the course of investigation which would mean
from the time of the lodging of the First Information Report till the
submission of the report by the officer in charge of police station in
court under Section 173(2) Cr.P.C., this field being exclusively H
278 Sl'PREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A reserved for the investigating agency."

This being the settled legal position, the High Court ought not to have
interfered with and quashed the entire proceedings in exercise of power
c<>nferred by Section 482 Cr.P.C. when the matter was still at the investigation
stage.
B
12. In the concluding paragraph of the judgment under challenge, the
High Court has also observed that considering the facts and circumstances
and the allegations made in the complaint it could be said that the initiation
of criminal proceedings is abuse of process of Court and miscarriage of
justice. No reasons in support of the aforesaid observation have been given.
C As already stated, the case was still under investigation and the police was
in the process of collecting evidence. The sweeping remark made by the
High Court in the circumstances of the case was wholly unjustified.

13. For the reasons mentioned above, the appeal is allowed and the
D judgment and order dated 23.2.2005 of the High Court is set aside. It is made
clear that any observation made in this order is only for the limited purpose
of deciding the appeal and shall not be construed as an expression of opinion
on the merits of the case.

B.S. Appeal allowed.

•

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