JUDGMENT

1. This proceeding arises out of the case of the King. Emperor against <NAME> and <NAME>. disposed of by us on the 17th instant. The petitioner, who was holding at the time the office of District Superintendent of Police at Noakhali, appears to have been cited as a witness for the defence in that case. He was, however, called by the <NAME> Judge himself on the 16th of January and was examined for three consecutive days. On the 7th of February he was ordered to enter into recognizances for appearance in <ORG> on the 11th following, and on any subsequent date to which the case may be adjourned. On the 15th of February the <NAME> Judge delivered his judgment in the case, and on that day he had the petitioner arrested and committed to jail on charges under Sections 193 , 466 and 471 of the Indian Penal Code. The 25th was fixed for commencing the preliminary inquiry. No proceeding was drawn up on that date (the loth), the order now before us being recorded only on the following day, namely, the 16th of February. That order is in these terms: "In the course of the <NAME> trial of King-Emperor v. <NAME> and three <NAME>. decided yesterday, I came to the opinion, for reasons stated in my judgment then delivered, that <NAME>, Superintendent of Police of this district, has committed offences under Sections 193 , 466 and 471 of the Indian Penal Code, and that it is my duty to hold an inquiry preliminary to committing him to <ORG> to be tried for those offences. Mr. <NAME> was yesterday arrested and committed to jail. There was then no time owing to the lateness of the hour to draw up this formal proceeding. He will be produced before me, as directed in the warrant, on the 25th of February, when evidence will be taken." After the disposal of the case in this Court, the petitioner applied for and obtained the present Rule, calling upon the Magistrate of the District to show cause, why the proceedings instituted against him under those sections by the <NAME> Judge of Noakhali, on the 16th of February, should not be aside; first, on the ground that they are not warranted by law, as there was no proceeding drawn up on the day that he was committed to jail; secondly, on the ground that no specific statements are set out in the proceedings drawn up on the 16th, upon which the petitioner is charged with having committed perjury; thirdly, on the ground that there are no statements in the said proceedings showing the character of the forgery charged against him under the sections referred to above, and, fourthly, on the ground that otherwise there is no foundation for the proceedings against him. The <NAME> Judge has purported to act under Section 477 of the Code of Criminal Procedure, which provides that "subject to the provisions of Section 444 <ORG> may charge a person for any offence referred to in Section 195 and committed before it or brought under its notice in the course of a judicial proceeding, and may commit or admit to bail and try such person upon Us own charge." It is an empowering section and authorises <ORG>, when an offence referred to in Section 195 of the Code of Criminal Procedure has been committed before it or brought under its notice as mentioned in the section, to charge the offender and to commit, or admit to bail and try him upon its own charge. We observe that the <NAME> Judge in one part of his judgment thinks the word "may" ought to be read as "must." There is no warrant, however, for that view. Having regard then to the phraseology of the law, it appears to us, that, if <ORG> proceeds to take action under Section 477 , it must, in the first instance, frame a charge, so as to enable the accused to know the exact nature of the offence he is alleged to have committed. A charge is a precise formulation of the specific accusation made against a person, who is entitled to know its nature at the earliest stage. After the accusation has been formulated in the shape of a charge, <ORG> may then either commit the accused for trial before itself upon the charge so framed, or admit him to bail for the same purpose. In the matter before us the <NAME> Judge had framed no charge, when he had the petitioner arrested and sent to jail, nor was his proceeding of the 16th of February in any sense a charge or order of commitment. It contains no particulars of the statements made and acts done by the petitioner, upon which perjury and forgery are charged against him. In our opinion the proceeding of the 16th of February was not warranted by law. The order states that "Mr. <NAME> was yesterday arrested and committed to jail. There was then no time, owing to the lateness of the hour, to draw up this formal proceeding. He will be produced before me, as directed in the warrant, on the 25th of February, when evidence will be taken." So that, the petitioner, against whom no definite accusation had been formulated up to that time, and in whose case, according to the <NAME> Judge himself, a preliminary inquiry was necessary, was to be kept in jail for nine days, before even the matter could be inquired into. A preliminary enquiry is necessary for the purpose of determining, whether there is a prima facie case against the person accused. As the <NAME> Judge did not charge the petitioner, as he was empowered to do, and as he considered a preliminary enquiry necessary, it seems to us that, until then, in the opinion of the <NAME> Judge, there was not even a prima facie case against the petitioner. In view of these facts we cannot help regarding the action of the <NAME> Judge with the strongest disapproval.

2. Apart from the illegality of the order as already mentioned, and dealing with the merits of the case, we are of opinion that there is no foundation for the proceeding. We have already expressed our opinion in the judgment in the main case respecting the allegations of perjury made against the petitioner. We do not desire to repeat our observations. We may add, however, that we have again gone through the judgment of the Sessions Judge, and beyond surmises and assumptions we find nothing to justify the view, that the petitioner wilfully perjured himself or intentionally gave false evidence in <ORG>.

3. There is less ground even for the charge of forgery. On the 15th of September the petitioner had visited the village and had a sketch map prepared of the locality by the writer, Head Constable <NAME>. A fair copy was made afterwards and both the draft and the fair copy were produced at the trial and are marked respectively as Exhibits Aa and A. Exhibits A bears the signature of the petitioner, and the date 15th September. The learned Sessions Judge thinks that Exhibit A could not have been prepared on the 15th, and he therefore comes to the conclusion that the petitioner had purposely antedated his signature, "because he did not want Mr. <NAME> to know that Exhibit A was a copy. He wanted Mr. <NAME> to believe that it was a plan made by himself on the 15th, instead of being, as it really is, a copy made after the 15th of a plan made partly in and in great part (and that the most important part) out of Mr. <NAME>'s presence on the 14th, 15th and possibly subsequent dates." It is worthy of note that not a single question was put to the petitioner to enable him to explain the circumstances, under which he came to put the date on the map as the 15th September. Again, it appears that there are two pencil marks on exhibit Aa, which the petitioner states were intended to indicate two breaks on one of the roads. These two pencil marks are not shown on Exhibit A. The petitioner explains the absence of those marks by saying: "It might be an omission on the part of <NAME>." The Sessions Judge, however, thinks that the petitioner tampered with Exhibit Aa, after it bad been prepared. We must quote here the Judge's own language. Referring to the draft he says as follows:

The rough map is Exhibit Aa. Mr. <NAME> admits that he had it in his hand two days before <NAME> examined him, i.e., on the first day of his examination. He had, therefore, the opportunity of tampering with it. and it is very significant that <NAME>, who says in cross-examination that he saw the draft as it was made, declared, even without taking it into his hand, that he did not see Exhibit ha the plan Mr. <NAME> swears is the draft, and when pressed says that he cannot say for certain whether or not it is the draft. I think most likely it is the draft, but that <NAME> knows it has been added to and does not want to be asked about the additions. Both Exhibit A and ha are the work of the Head Constable <NAME>. and as Exhibit A has nothing of Mr. <NAME>'s, but his signature and the date, so Exhibit Aa has nothing of his, but certain pencil marks shortly to be noticed. Both the entries are false documents within the meaning of Section 464 of the Indian Penal Code; for in each case Mr. <NAME>'s intention, when he made the entry, was to make people (in the first case Mr. <NAME>, in the second this <ORG>) believe that the entry was made at a time at which he knew that it was not made, and as the documents purported to be made by a public servant in his official capacity, Mr. <NAME>, by making them, appears to have committed offences under Section 466 of the Indian Penal Code, and by using them, as genuine, to have committed offences under Section 471 ." In page 127 occurs this remarkable passage: "I now come to the draft Exhibit Aa. <NAME>, who made this draft, says, he did not show any break in it at all, that he was never told to, and did not think it necessary to. But Mr. <NAME> points to two pencil marks at the place marked in Exhibit Aa and says he made these to indicate the break, and so I have no doubt he did make them, but I have equally little doubt that he made them on the 16th of January 1901, and not on the 15th of September 1900. Mr. <NAME> explains the absence of any such marks from Exhibit A by saying it might be an omission on the part of <NAME>. But the far more obvious explanation is that Mr. <NAME> was unable to tamper with Exhibit A.

5. It is needless to refer to the absence of sequence in the reasoning or the assumptions on which it proceeds. Taking it however that Exhibit A was purposely antedated to deceive Mr. <NAME>, and that the pencil marks were put in Exhibit Aa after it had been prepared, we fail to see how the petitioner could be charged under Sections 466 and 471 of the Indian Penal Code. Section 463 which defines the term "forgery" runs as follows: "Whoever makes any false document or part of a document with intent to cause damage or injury to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." Section 464 then explains the expression "making a false document." The elements of fraud or dishonesty, as explained in the Penal Code , must be present in the mind of the person accused to bring his act under Sections 466 and 471 of the Indian Penal Code. In our opinion the charge against the petitioner of committing forgery or making use of a forged document, even upon the assumption of the Sessions Judge, cannot be sustained. But in our judgment there is no ground for the assumption of the Judge, that Exhibit A was purposely antedated. The inspection of the locality having unquestionably taken place on the 15th and the results noted in Exhibit Aa, the fair copy, whenever prepared (and excepting the hypothesis of the Sessions Judge there is nothing to show it could not have been prepared on that day) would naturally bear the date of the inspection, and any other date would misrepresent the fact.

6. As regards the pencil marks on Exhibit Aa, there is absolutely no reason for suggesting them to be dishonest interpolations by the petitioner or for not accepting his explanations regarding their omission from Exhibit A. It was no doubt wrong on the part of the petitioner not to have insisted on the breaks being shown on the maps, and that error of judgment is deserving of censure, but in our opinion the imputation of forgery and of having used a forged document is not only groundless, but a straining of the law as well as the facts.

7. We may observe in this connection that the offence of giving false evidence, Section 193 , is bailable, so also is the offence of using a forged document, Section 471 , whilst forgery, Section 466 , is non-bailable. It was unfortunate that the Sessions Judge applied Section 466 against the petitioner in the way he has done, as it gives colour to the suggestion made at the bar, that it was purposely used to deprive the petitioner of the right to bail.

8. We regret to observe that in dealing with this matter the Sessions Judge does not seem to have maintained a judicial balance of mind.

9. For these reasons we think that his order must be set aside, and we set it aside accordingly.

10. A copy of this judgment will be forwarded to <ORG>.


JUDGMENT U.C. Law, J.

1. The plaintiff, who is a shareholder of defendant company (Def. 8) has brought two applications in the present suit which was, filed by him with leave under Clause 12 of the Letters Patent for a declaration that certain alleged, meetings of the defendant company held at different dates mentioned in the plaint and certain resolutions passed at the said meetings are illegal, ultra vires and not according to law and not binding on the plaintiff and/or the defendant Company. For the purposes of these two applications it is not necessary for me to state here in detail the facts of this case because it will suffice if I only indicate that the plaintiff's main grievance in the suit as originally filed was that the alleged meetings were held without any notice to him. Of the two applications-now brought By the plaintiff, one is for fresh leave under Clause 12 of the Letters Patent in respect of the amendments sought for in the plaint and the other application is for leave to amend the plaint in the manner indicated in red ink in the Annexure 'A'. The proposed amendment sought to be made is to the effect that the defendant No. 4 and defendant No. 5 were at all material times minors being;

under the age of 18 years and as such they were never shareholders or directors of the defendant <ORG> and further that the board meetings or proceedings wherein defendant No. 4 and defendant No. 5 took part and voted are null and void and of no effect and also the resolutions passed at the said meetings were and are null and void and of no effect. In the proposed amendment the particulars of the proceedings wherein the defendants 4 and 5 took part are given, and I find that two new proceedings dated 20-8-1956 and 26-7-1956, have been added which were not included in the plaint as originally filed.

2. There cannot be any question that the proposed amendment introduces a substantially different cause of action.

3. The applications are opposed on the ground that no leave under Clause 12 of the Letters Patent can be given at the time of this proposed amendment nor can leave be given to amend the plaint because the amendment proposed is a new cause of action and further it is inconsistent with the cause of action originally pleaded in the plaint.

4. The question for determination is a question of considerable importance because I have to consider whether the proposed amendment introducing a new cause of action should be disallowed for the reason that this being a suit instituted with leave to sue under Clause 12 of the Letters Patent no further amendment can be ordered.

5. Clause 12 of the Letters Patent provides:

"<ORG> in exercise of its Ordinary Original Civil Jurisdiction shall be empowered to receive, try and determine suits of every description ....... If the cause of action shall have arisen either wholly or in case the leave of the <ORG> shall have been first obtained in part within the local limits of the Ordinary Original Jurisdiction of the said High <ORG>......."

6. It has been well established in <NAME> v. <NAME>, ILR 15 Bom 93 that the grant of leave under Clause 12 of the Letters Patent is a judicial act which must be held to relate only to the cause of action disclosed in the plaint as presented to the court at the time of the grant. It has further been held that such leave, which affords the very foundation of the jurisdiction, is not available to confer jurisdiction in respect of a different cause of action which was not judicially considered at the time it was granted and that in respect of such a different cause of action leave under Clause 12 cannot be granted after the institution of the suit and that therefore the court cannot try such a different cause of action except in another suit duly instituted; and further that in suit for which leave to sue under Clause 12 of the Letters Patent is necessary the <ORG> cannot allow an amendment which substantially alters the original cause of action.

7. <CITATION> , AIR 1939 Bom 345, Kania, J. observed:

"the question goes to the root of the jurisdiction of the court ........... The obtaining of the leave under Clause 12, Letters Patent, is the foundation of the jurisdiction and it has been held that such leave must be obtained before the institution of the suit and cannot be granted afterwards".

The learned Judge followed ILR 15 Bom 93 and in the course of his judgment observed that "if an amendment which would alter the cause of action was made, it necessarily followed that fresh leave should be obtained in respect of the altered cause of action".

He further reasoned to the effect that the two causes of action being thus entirely different and no leave having been obtained when the amendment was applied for, the suit must fail.

8. <CITATION> of the 24 Paraganas, AIR 1946 Cal 23, <NAME>, J., had to consider the same question. The learned Judge referred both to ILR 15 Bom 93 and AIR 1939 Bom 345 and other decisions on the point and observed as follows:

"the grant of leave is a condition precedent to the court having jurisdiction to receive such a suit. An amendment to a plaint raising a new cause of action upon which a claim is made, is not a fresh suit but is an additional claim made in an existing suit. The court's leave is previously required in respect of a cause of action before the court can have jurisdiction to receive the suit in which it is alleged ........... In my opinion the court has no jurisdiction to receive, try and determine the claims upon the causes of action in the amendment to the plaint since leave was not previously obtained in respect of those causes of action before the suit in which those claims are made was instituted in this court."

9. In the course of his judgment the learned Judge considered the observation of <NAME>, J., in. AIR 1939 Bom 345 and proceeded to observe that leave (Clause 12) was not sought in the case with which he (<NAME>, J.,) was dealing, with respect to the cause of action in the amendment either at the time the application was made to amend or when leave was given for the amendment or when the plaint with the amendment was presented to the court and stated that "this admission and grant of leave to amend the plaint could not confer upon the court jurisdiction which it did not possess". Eventually, however, he said that the court had no jurisdiction to receive, try and determine the claims upon the causes of action in the amendment to the plaint since leave was not previously obtained in respect of those causes of action before the suit in which those claims are made was instituted in this court.

10. In <NAME> v. State of Bihar, Justice <NAME>, after having considered all the above authorities came to the conclusion that "Where by amendment of a plaint the cause of action is altered or a new cause of action added, it is not a new suit but the old suit in a new form. In such a case no amendment can be ordered if it requires leave to be granted under Clause 12 of the Letters Patent at the time of the amendment".

The learned Judge has followed and explained the earlier authorities but there are no new reasonings on the point in issue.

11. In <NAME> v. <NAME>, 94 Cal LJ 160 at p. 166 Mr. Justice <NAME> following <NAME>, J. in AIR 1939 Bom 345; <NAME>, J. in AIR 1946 Cal 23 and <NAME>, J. in came to the simple conclusion at p. 168 as follows:

"Once the cause of action is altered or added to, it cannot, in my opinion, be said that the reception of the suit continues to be proper without grant of fresh leave".

12. Mr. <NAME>, counsel for the applicant argues that all the above decisions were mere obiter dicta because the question came up at the time of hearing of the suit and in none of those cases any application was brought before the court for obtaining leave to sue under Clause 12 and also for leave to amend the plaint as has been done in this case. Shortly stated Mr. <NAME>'s argument is that if the proposed amendment is otherwise permissible in law, even it Be a new cause of action, fresh leave under Clause 12 of the Letters Patent can be granted at the time when the application for amendment is brought. He further argues that the Rules of the Original Side do not provide anywhere that no amendment can be made in suits tiled with leave under Clause 12 of the Letters Patent nor is there any provision anywhere in law that no leave under Clause 12 can be granted at the time of the amendment which could have been provided in the Original Side rules if it was thought necessary. He further submits that the Letters Patent is also silent about the matter and comments that the present day practice is to allow amendment freely. As an authority for his contention he strongly relies on a judgment of <NAME>, J. reported in <CITATION> , . He submits that in this Madras case the present question came up before the court in an application for leave to sue under Clause 12 of the Letters Patent along with an appeal from the Master on an application for amendment of the plaint and the learned Judge in this case held "that where the court on an application of the plaintiff considers that the plaint has to be amended so as to include a cause of action, which was not originally in the plaint, on the ground that such an amendment is necessary, it does not prevent the court from granting such an amendment merely for the reason that it was a suit instituted after obtaining previous leave to sue under Clause 12 of the Letters Patent. It does not also preclude the plaintiff from giving effect to such an order by carrying out the amendment or presenting an amended plaint, before which, however, he should apply for and obtain leave to sue on the cause of action described in the amendment under Clause 12 of the Letters Patent. Such an application for leave can be filed and leave can be granted, if it comes within the scope of the Clause 12 of the Letters Patent".

13. With great respect to the learned Judge I am unable to agree with him as I shall soon explain.

14. Reading the learned Judge's judgment, I find that he agrees with the view expressed in ILR 15 Bom 93 by <NAME>, J. He agrees that grant of leave under Clause 12, Letters Patent being a judicial act must relate to the cause of action contained in the plaint as presented to the court at the time of the grant and that such leave affords the very foundation of the jurisdiction and would not he available to confer jurisdiction in respect of a substantially different cause of action which was not and coud not have been judicially considered at the time it was granted but he observes "that it does not necessarily follow that in respect of such a different cause of action leave under Clause 12 L. P. cannot be granted after the institution of the suit and that therefore the <ORG> cannot try such a different cause of action except in another suit duly instituted. Neither the language of Clause 12, nor the principle of providing for leave before a suit is tried would necessitate such a conclusion."

15. The learned Judge was fully alive to the provisions of Clause 12 of the L. P. because he observes in the last sentence to paragraph (10b) of his judgment at p. 534 thus:

"The leave therefore must be prior to such receipt, trial and determination and not after and must necessarily relate to the cause of action on which the suit is based".

But he then proceeded to reason thus:

"In regard to plaint in such suits so instituted, could it be said that the plaint cannot be amended at all? There does not appear to be any controversy for the position that an amendment to such a plaint can be granted if it is only a formal amendment which was not based on a substantially different cause of action".

16. I fully agree that formal amendment, as normally understood is permissible in law. But with great respect, I fail to understand what the learned Judge meant by the words "not based on substantially different cause of action". Either it is based on a different cause of action or it is not. If it is not based on a different cause of action there cannot be any doubt that the formal or reasonable amendment is permissible in law. The question for determination is, as to whether amendment seeking to introduce a different cause of action is permissible in law.

17. As I have understood the judgment of <NAME>, J. it seems to me that the ratio of his judgment is to be found in the following passages:

(1) If the <ORG> finds that a cause of action is not inconsistent and to avoid multiplicity of suits or for the purpose of determining the real question in controversy raised in the suit between the parties or for other reasons an amendment is necessary though based on a different cause of action the <ORG> has ample power to order an amendment of the plaint but for the decisions of <NAME>, <NAME> and <NAME>, <NAME>

(2) What all that is required to be complied with to satisfy the provisions of Clause 12 is that in cases where leave is required <ORG> has no power to receive a plaint before such leave is granted. But the learned Judge says, there is nothing to show that a plaint after obtaining leave to amend would not include an amended plaint.

(3) If an amended plaint after obtaining leave to amend is to be received and the cause of action arising therein is to be tried and determined which cannot be done since previous leave (under Clause 12) is required which alone confers jurisdiction, there is no reason why such leave to present an amended plaint should not be granted under Clause 12 on fresh application stating the cause of action on which the amendment has been applied for and the reasons for such grant.

(4) The learned Judge overcomes the difficulty created by the judgments of <NAME>, J. and <NAME>, J, by holding that both of them by implication were of the opinion that such leave under Clause 12 Letters Patent could be granted in the case of an amended plaint based on a different cause of action.

18. I shall assume that it is possible to read or spell out by implication from the judgment of <NAME>. <NAME> and <NAME> <NAME> or other learned Judges, that they did by implication hold a view that such leave under Clause 12 could be applied for at the time of the amendment but it must be remembered that the question was only raised at the hearing of those suits before the learned Judges. It never came before them directly for their consideration as to whether leave under Clause 12 Letters Patent could be granted if applied for at the time of amendment seeking to introduce a new cause of action. Further it may be noted that both <NAME>, <NAME> and <NAME>, <NAME> came to the conclusion that such leave under Clause 12 could not be granted at the time of the amendment. I am not sure as to whether <NAME>, <NAME> and <NAME> <NAME> really meant what Krishnaswami Nayudu, <NAME> is implying. I am not prepared to proceed on that footing in my judgment but rather decide on principle.

19. I must confess that I was much impressed by the attractive reasonings of the learned Judge at the beginning of the argument by the counsel for the applicant. But with due respect to the learned Judge upon careful consideration I have come to a different conclusion.

20. In my opinion, even if, from the point of view of avoiding multiplicity of suits or for the put-pose of determining the real question in controversy raised in the suit between the parties or for reasons of expediency or any other reasons an amendment is found or becomes necessary in such suit, it cannot be allowed by the <ORG> if the amendment sought, is based on a different cause of action. The underlying principle or the reason as to why such amendment cannot be allowed, in my opinion is, that the question involved is not a question of procedure but a question of power. It goes to the very root of the jurisdiction of tile court. Jurisdiction can only be assumed by the <ORG> by grant of leave to sue under Clause 12, Letters Patent prior to the filing of this suit. It has been held that such leave is only confined or referable to the cause of action stated in the plaint when filed and to no other. It has been well established and our <ORG>s have also repeatedly held that such leave to sue, granted prior to the filing of the suit, cannot be enlarged to include other causes of action which were not included originally in the plaint and were not judicially considered at the time of the first grant of leave under Clause 12, prior to the filing of the suit. Jurisdiction of the <ORG> in such cases is strictly limited to the cause of action originally pleaded and cannot be enlarged to include new causes of action.

21. I am further of the opinion that if in a suit which was originally filed with leave under Clause 12 Letters Patent, the <ORG> were to grant a fresh leave to sue, in respect of a different cause of action sought to be brought in by way of amendment at the time of the application made on that behalf, such a grant would not be in accordance with law as it must necessarily be after the filing of the Suit in direct violation of the clear and unambiguous language of Clause 12 of the Letters Patent, The language of Clause 12 is mandatory and in my view such a grant of leave to sue subsequent to the suit would not confer any jurisdiction to the <ORG> to receive, try and determine the new cause of action. It therefore necessarily follows that in such a case no leave to amend can be granted if the amendment seeks to bring in a different cause of action.

22. An amendment to a plaint introducing a new cause of action upon which the claim is made cannot be said to be a new suit. It is merely a new claim added in the same suit. But that again does not necessarily mean that the original plaint in a suit properly filed with leave under Clause 12 would include the amended plaint. The original plaint in such suits cannot include the amended plaint is clear from the fact that firstly, the cause of action originally pleaded in the plaint was judicially considered by the <ORG> at the time of the grant of leave to sue before the suit was filed, thus assuming jurisdiction to receive, try and determine the suit as it then stood; secondly the <ORG>'s jurisdiction being strictly confined to the original cause of action judicially considered by the <ORG> at the time of the grant prior to the filing of the suit and to no other, the plaint originally filed cannot possibly include the amended plaint because the cause of action in the amended plaint was not judicially considered by the <ORG> before the filing of the suit; thirdly the <ORG> having no power to grant leave under Clause 12 Letters Patent after filing of the suit the original plaint cannot include the cause of action included in the amended plaint as it would enlarge the jurisdiction of the <ORG>. As I have stated before in such a case leave to amend the plaint cannot be given by the <ORG> to include a different cause of action.

23. In the light of what is stated before I hold that in a suit which is filed with leave under Clause 12 of the Letters Patent, only formal amendments or other reasonable amendments can be allowed, provided the amendment sought, does not affect the jurisdiction assumed by the <ORG> originally, by grant of leave to sue under Clause 12 prior to the filing of the suit, in any way either by adding to or altering the original cause of action as pleaded in the plaint.

24. However expedient it may be for the purpose of determining the question in controversy in the suit or for avoiding multiplicity of suits or for other good reasons, no amendment seeking to alter the original cause of action or seeking to add a new cause of action can be allowed by court in a suit filed with leave under Clause 12, for the simple reason that the question involved is not one of procedure but of jurisdiction. The language of Clause 12 Letters Patent, is clear and unambiguous and the provisions therein contained are mandatory. The correct position of law has been clearly stated in ILR 15 Bom. 93. In these cases the <ORG> is powerless and leave if granted in such cases would be in excess of the powers of the <ORG> and would not confer any jurisdiction upon it to receive, try and determine any causes of action which were not originally pleaded in the plaint.

25. As regards the application for leave to amend the plaint is concerned, in my opinion the proposed amendment is clearly of a substantially different character from the one originally pleaded. The cause of action sought to be included in the amended plaint challenges the status of the defendants Nos. 4 and 5 who are now alleged to have been minors at the relevant time; whereas the cause of action originally pleaded was non-service of the notices of different meetings alleged to have been held by the defendants and other alleged illegal acts of the defendants. In my view this amendment is not permissible in law. Even if my finding be not correct the same result will follow, for the amendment proposed is in any event, a new cause of action and not of a formal nature and as such in view of my opinion as expressed before leave for such amendment cannot be given, nor can fresh leave under Clause 12 Letters Patent be granted for amendment of the plaint in this suit.

26. In the result both the applications fail and are dismissed with costs. Certified for counsel.


JUDGMENT <NAME>, J.

(1) These applications have been made by original accused Nos. 1 and 2 respectively under section 561-A Criminal Procedure Code for quashing the proceedings that are going before the Special Judge, Greater Bombay. The few facts, that are necessary for deciding the points that were urged o behalf of the applicants, may be set out as follows: Accused No. 2 is the Head master of a municipal school known as <ORG>, and accused No. 1 is an Assistant teacher in the same institution. The son of one <NAME> had passed the first standard in the said school and in the ordinary course, he would have been promoted to the second standard. It appears that accused Nos. 1 and 2 gave a promiss to <NAME> that accelerated promotion would be granted to his son and instead of promoting him to the second standard, he would be given a jump and promoted to the third standard. For that purpose, they demanded a bribe of RS. 20. <NAME> filed a complaint to <ORG>, Bombay on 10th September, 1958, and his statement was recorded by Police Sub-Inspector <NAME> and was treated as first information in the case. The same day, Police Sub-Inspector <NAME> made an application to the Presidency Magistrate, <ORG>, for permission to carry on investigation into the offence. In that application, he had asked for permission being granted to the "undersigned as well as to the officers and men of this <ORG>". The learned Magistrate passed a laconic order in the following terms: "Permission granted". Thereafter, Sub-Inspector <NAME> proceeded to arrange a trap and in that trap, accused No. 1 accepted a bribe of Rs. 20. But, at the same time, be told the investigating officer that he demanded the bribe of and on behalf of accused No. 2. Therefore, a second trap was arranged and in the course of that trap, accused No. 2 accepted a sum of 20. In his house in the presence of accused No. 1. The sanction of the Municipal Commissioner was sought and was obtained on 19th February, 1959. Thereafter, charge-sheet was submitted to the then Special Judge <NAME> under the signature of the Inspector of Police Anticorruption <ORG>. Cognizance was taken by Mr. <NAME> and process issued to the accused. The case came up for hearing on 9th August, 1960, and on that day a charge was framed under section 161 and 165 Indian Penal Code against accused No. 1 and under Section 161 , Indian Penal Code against accused No.2. Preliminary objection was taken contending that the sanction granted by the Presidency Magistrate, <ORG> was not valid and, therefore, Sub-Inspector <NAME> had no authority to carry on the investigation. In order to meet this objection, Mr. <NAME>, the Presidency Magistrate, <ORG>, was called to give evidence. Accordingly on 8th November, 1960, <NAME> appeared in the witness box but he refused to give evidence claiming privilege under section 121 of the Indian Evidence Act. The learned Judge, therefore, made a reference to <ORG> for the issue of a direction to the said Magistrate to give evidence in the case. The reference came up before a Division Bench comprising Chief Justice <NAME> and Justice <NAME>. The then Government Pleader suggested that the best course would be to order a fresh investigation by the Superintendent of Police as required by section 5-A of the Prevention of Corruption Act, 1947). Accused Nos. 1 and 2 were, at that stage, represented by Messrs. <NAME> and <NAME> respectively. The Division Bench accepted the suggestion put orward by he Government Pleader and directed that the case against the accused be reinvestigated by such Superintendent of Police as the Director of Anti-corruption <ORG>, Bombay, may appoint in this behalf. In pursuance of the directions given by <ORG>, the Special Judge referred the matter for re-investigation. It appears that one <NAME>, Superintendent of Police, carried out the investigation afresh. We are told by Mr. <NAME>, Additional Government Pleader, that <NAME> recalled the witnesses and recorded the statements afresh. Thereafter, he wrote a letter to the Special Judge on 22nd April, 1961, stating that the case was reinvestigated by him that all the witnesses were examined afresh and that from the evidence on record, it was clear offence punishable under section 161 read with section 34 Indian Penal Code. Along with the letter, he forwarded the papers of the re-investigation carried out by Sub-Inspector <NAME>. The case then came up before Judge <NAME> and he framed the charges. At that stage again two preliminary objections were raised to the following effect :

(1) The reinvestigation made by the Superintendent of Police, Anti-Corruption and Police Inspector, is incomplete and the requisite charge-sheet or report has not been submitted by him as required by section 173 (1) of the Code of Criminal Procedure and a copy of that report has not been furnished to the accused as required by section 173 (4) thereof.

(2) No fresh sanction under section 6 of the Prevention of Corruption Act has been obtained after placing the papers of reinvestigation before the competent authority.

The learned Special Judge took the view that neither of these objections had any substance. Consequently, he directed that the accused should be proceeded with according to law. It is against this order that these two applications have been lodged before us by accused Nos. 1 and 2 respectively.

(2) These applications purport to have been made under section 561-A Criminal Procedure Code, which provides:

" Nothing in the Code shall be deemed to limit or affect the inherent power of <ORG> to make such orders as may be necessary to give effect to any order under the Code , or to prevent abuse of the process of any <ORG> or otherwise to secure the ends of justice."

The contentions that were urged by Mr. <NAME>, on behalf of accused No.1 and Mr. <NAME>, on behalf of accused No.2 can be summed up under tow heads. Firstly, they contended that the investigation that was carried out by Sub-Inspector <NAME> was invalid and bore the stamp of illegality. This position was virtually conceded by the learned Additional Government Pleader and it was on that basis that <ORG> had passed an order for re-investigation. That being the case the cognizance that was taken on the basis of illegal investigation cannot stand and will have to be quashed. For reinforcing this contention, Mr. <NAME> referred to the provisions of the Criminal Law Amendment Act , 1952 (hereinafter referred to as the Act of 1952) and contended that the Special Judge, for all practical purposes stands in the position of a Sessions Judge, and, therefore, cannot take cognizance of an offence on the basis of an illegal charge-sheet or a report. The second contention urged was that the sanction was accorded by the Municipal Commissioner on the basis of the material collected in the previous investigation, which has been declared to be an illegal investigation. It was quite possible that in the course of reinvestigation fresh material has cropped up. That being the case, the sanction lapsed and it was necessary that a fresh sanction should be accorded. Therefore, even if cognizance no longer survives and it will have to be quashed. Incidentally, Mr. <NAME> also contended that the Special Judge has no power to direct a reinvestigation of the case and the so-called reinvestigation is the re-enactment of the same drama. Mr. <NAME> went a little further and argued that, by the order of re-investigation, the original in-vestigation stood cancelled and if that is so then cognizance taken on the basis of the original investigation must also come to an end.

(3) We will take up these points one by one. So far as the power of the special Judge to take cognizance is concerned, we have, first of all, to consider the provisions of the Criminal Law Amendment Act of 1952. It is under the provisions of this Act that <ORG> is constituted. So far as the Code of Criminal Procedure is concerned, criminal courts are broadly classified under two heads viz., <ORG> and <ORG>. There is a third <ORG> and that is the High <ORG>, which is not relevant for the purpose of the present case. The <ORG> of the Special Judge is not contemplated by the Code of Criminal Procedure. The <ORG> of a Special Judge is a special creature of the Act of 1952 . The powers of the Special Judge flow from the provisions of the Act of 1952 and we have, therefore, to examine these provisions closely with a view to find out as to what are the powers and functions of a Special Judge. Sub-section (1) of section 6 of the Act of 1952 relates to the appointment of a Special Judge and provides:

" <ORG> may, by notification in the official Gazette, appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely:-

(a) an offence punishable under section 161 , section 162 , section 163 , section 164 , section 165 or section 165-A of the Indian Penal Code or sub-section (2) of section 5 of the Prevention of Corruption Act, 1947;

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a)".

Sub-section (2) lays down the qualification for such an appointment and in effect says that, that the person to be appointed as Special Judge must be either " a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898". Section 7 of the Act of 1952 constitutes <ORG> into a Court of exclusive jurisdiction for the trial of offences mentioned in sub-section (1) of section 6 of the Act. It lays down:

"Every offence specified in sub-section (1) of section 6 shall be tried by the Special Judge for the area within which it was committed or where there are more Special Judges than one of such area, by such one of them as may be specified in this behalf by <ORG>".

Section 8 of the Act is very important and is divided into four sub-sections. Sub-section (1) provides:

"A Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates".

Sub-section (2) , in effect, provides:

"A special Judge may tender a pardon to an accomplice and in doing so, he shall be deemed to have acted under section 338 of the Code of Criminal Procedure".

Sub-section (3), in effect provides:

" The provisions of the Code of Criminal Procedure shall apply to the proceedings before a Special judge, so far as they are not inconsistent with this Act; and for the purposes of the said provisions, <ORG> shall be deemed to be <ORG> trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor".

Sub-section (3-A) lays down:

'In particular, and without prejudice to the generally of the provisions contained in sub-section(3) the provisions of section 350 of the Code of Criminal Procedure, 1898 , shall, so far as may be, apply to the proceedings before a Special Judge, and for the purposes of the said Provisions a Special Judge shall be deemed to be a Magistrate".

Sub-section (4) is not material for our present discussion. Section 9 of the Act of 1952 relates to appeal and revision and, in effect, provides:

"For the purposes of appeal and revision to <ORG>. <ORG> a special judge shall be deemed to be <ORG> trying cases without a jury".

(4) Mr. <NAME> contended that except for the purposes of sub-section (3-A) of section 8 of the Act of 1952, a Special Judge stands in the position of a Sessions Judge trying a case without the aid of a jury or assessors. He has advanced this argument with a view to show that, in any case, a Special Judge cannot be considered to be a magistrate and if that is so, he is not capable of taking cognizance of the offences under section 190 Criminal Procedure Code. There was a good deal of argument as to whether section 190 Criminal Procedure Code applies to a Special Judge. Before considering the various ramifications into which this argument has run, it would do well to remember the broad outlines of section 190 , Criminal Procedure Code . That section empowers a Judicial Magistrate to take cognizance of any offence in any of the following cases:

"(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed."

Mr. <NAME> then referred to Section 193 Criminal Procedure Code and contended that so far as <ORG> is concerned, it cannot ordinarily take cognizance of an offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. Mr. <NAME> argued that all that has been done by sub-section (1) of S. 8 of the Act of 1952 is to remove the bar that has been placed in the way of Sessions Judge taking cognizance without an order of commitment under Section 193 Criminal Procedure Code. In that connection, he laid emphasis upon the language of sub-section (1) Section 8 of the Act of 1952 which runs thus :

"A Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused, shall follow the procedure prescribed by the Code of Criminal procedure, 1898, for the trial of warrant cases by Magistrates".

According to Mr. <NAME>, this Section is negative in character and serves the purpose of removing the impediment in the way of the Sessions Judge taking cognizance of a case without commitment. There is no positive provision under which the Special Judge is clothed with the authority or jurisdiction to take cognizance of an offence. If this argument is pushed to its logical conclusion, it would mean that under no circumstances, a Special Judge has powers to take cognizance of a case. Section 190 Criminal Procedure Code in terms applies to a magistrate. Section 190 Criminal Procedure Code cannot, therefore, be invoked for clothing the special judge with authority to take cognizance of a case. There is also another reason as to why section 190 Criminal Procedure Code may not be strictly applicable to the case of a Special Judge and it is this that, one of the conditions precedent for the Special Judge taking cognizance is the existence of a valid sanction by the competent authority under Section 6 of the Act of 1947. In other words, Mr. <NAME>'s argument leads to the astounding conclusion that a Special Judge has no authority to take cognizance of a case even on the basis of a police report or a charge-sheet. With a view to buttress this line of reasoning, Mr. <NAME> pointed out that whenever the Code of Criminal Procedure gives power to a <ORG> to take cognizance, it also prescribes the manner and the method in which cognizance can be taken. In that connection, he referred us to section 190 , section 193 and section 194 Criminal Procedure Code. According to Mr. <NAME>, in so far as the legislature has not provided the manner in which the Special Judge can take cognizance of an offence, there is a lacuna and that lacuna can only be rectified by a suitable amendment. We are unable to accept this line of reasoning. It is clear to our mind that the provisions of section 8(1) of the Act of1952 are not essentially negative in character. The opening part of sub-section (1) of section 8 viz., " A special judge may take cognizance of offences ........." is obviously of a positive character. It clothes the Special judge with the authority to take cognizance of an offence. It is true that the manner in which cognizance can be taken has not been defined or specified in the Act of 1952. That does not mean that the power that has been granted is illusory or is incapable of being exercised. According to us, the manner has not been specified, because the legislature wanted to clothe the Special Judge with wide authority of taking cognizance in all conceivable cases. Section 190 Criminal Procedure Code is illustrative as to how and under what circumstances, the Magistrate can take cognizance of an offence. It is true that the provision of section 190 Criminal Procedure Code a Magistrate can act on a private complaint. He can act on a report in writing by a police officer and he can also act upon information received from any person and what is more, he can also act upon his own knowledge or suspicion that an offence has been committed. It is possible to hold that these categories cover the entire gamut. Mr.<NAME> contended that it was very easy for the legislature to have e referred to section 190 Criminal Procedure Code and say that the Special judge can take cognizance or may take cognizance in all the cases in which the Magistrate can take cognizance under section 190 Criminal Procedure Code. As stated above, the reason for not so doing may be the the legislature wanted to confer even wider powers than what has been contemplated by section 190 Criminal Procedure Code. It may as well be that reference to section 190 Criminal Procedure Code was not made, because of the difficult that one of the conditions precedent in taking cognizance of an offence is the receipt of a prior sanction by the competent authority. Whatever that may be, merely because wide words have been employed and the manner of taking cognizance has not been specifically set out, it is not possible to take the view that the Special Judge has no power to take cognizance of an offence, for to put such a construction would be to nullify the positive words used by the legislature viz., " A Special Judge may take cognizance of offencs ................"

in section 8 (1) of the Act of 1952. In our view, section 8 (1) of the Act gives clear authority to the Special Judge to take cognizance of an offence and no limitation as been placed as to how he should do it. He may act on a report submitted by a police officer. He may act on a private complaint or he may also act o the basis of any information derived form any source and also on his personal knowledge and suspicion. The powers of the Special Judge in the matter of taking cognizance are wide and untrammelled. It is true that the Prevention of Corruption Act contemplates an investigation . An investigation carried out by police officers culminates in a char-sheet. Section 5A the Act of 1947 provides:

" Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank-

(a) in the presidency towns of Madras and Calcutta of an Assistant Commissioner of Police,

(b) in the presidency town of Bombay, of a Superintendent of Police, and

(c) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under section 161 , section 165 or section 165A of the Indian Penal Code or under sub-section (2) of section 5 of this Act, without the order of a presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant".

This pre-supposes that an investigation would be ordinarily carried out according to the provisions of the Code of Criminal Procedure. But the submission of a report in writing by the police is not the only way in which a Special Judge can take cognizance of an offence. For instance, in respect of an offence under Sections 162 to 164 <ORG>, it would be open to the Special Judge to take cognizance in other ways, e.g., on a private complaint or on the basis of information received by him in any other manner. In construing the provisions of Section 8(1) of the Act of 1952, we are not limited by the provisions of the Act of 1947 and in particular by section 5A thereof. Originally, section 6 of the Act of 1952, as it stood before its amendment in 1958 provided that the Special Judge is to be appointed for trying offences under section 161 , section 165 or section 165A <ORG> or sub-section (2) of section 5 of the Act of 1947. Clause (a) of section 6 of the Act of 1952 was amended to include sections 162 to 184 <ORG>, with the result that the Court of the Special Judge will the a Court of exclusive jurisdiction for trying offences even under section 162 to 164 <ORG>. So far as investigation into offences under sections 162 to 164 <ORG> is concerned, there is no limitation similar to the limitation imposed by section 5A of the Act of 1947. The investigation into those offences can b carried out by an officer of a police station under the provisions of the Code of Criminal Procedure. But, there may be cases where cognizance in respect of those offences can as well be taken by the magistrate otherwise than no a police report. We have, therefore, no doubt in our mind that the powers of a Special Judge to take cognizance of offences specified in section 6 of the Act of 1952 are wide and unlimited.

(5) If the above view is correct, then the question as to whether the Special Judge is a <NAME> Judge or a Magistrate becomes of an academic importance. The Special Judge is a creature of the Criminal Law Amendment Act , 1952. He enjoys a special status under the Act and is clothed with such powers as have been given to him by the provisions of the Act. It is true that the qualification for the appointment of a Special Judge is that he must be either a <NAME> Judge or an Additional <NAME> Judge or an Assistant Judge. But the qualification for making the appointment has nothing to do with the powers of a Special Judge. So far as the procedure for trial of cases by the Special Judge is concerned, section 8 of the Act of 1952, lays down that he shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrate. So far as trial of cases is concerned, the Special Judge stands in the position of a Magistrate. But, so far as taking cognizance of cases, which precedes the trial is concerned, special provision has been made in sub-section (1) of section 8 of the Act of 1952, For that purpose, it is not necessary to consider as to whether he is a Magistrate or whether his a <NAME> Judge. So far as tendering of pardon is concerned, the Special Judge is assimilated to the position of a Session Judge who acts under the Code of Criminal Procedure. Mr. <NAME> relied, in particular, upon the provisions of sub-sections (3) and (3A) of section 8 of the Act of 1952. Sub-section (3) lays down:

" Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the <ORG> of the special judge shall be deemed to be a <ORG> of Sessions trying cases without a jury,.........." . Mr. <NAME> argued that for the purposes other than the purposes mentioned in sub-section (1) and (2) of section 8 , the Special Judge stands in the position of a Sessions Judge. The same argument holds good so far as appeal or revision from the order of the Special Judge are concerned and for which provision has been made in section 9 of the Act of 1952. Sub-section (3A) , which is inserted in 1958, provided : that the provisions of section 350 Criminal Procedure Code shall apply to the proceedings before a Special Judge and for the purpose of the said provisions, a Special Judge shall be deemed to be a Magistrate. Section 350 Criminal Procedure Code makes provision as to how a succeeding magistrate is to proceed, when his predecessor had heard the case partly and recorded some evidence in the case. This amendment was made with a view to set the conflict of judicial opinion at rest. It is however, necessary to remember that the opening words of sub-section (3A) of section 8 of the Act of 1952 make it clear that the provisions of that sub-section did not in any way derogate from the other provisions of S. 350 Criminal Procedure Code. There is, therefore, no simple answer to the question as to whether a Special Judge is more of a Magistrate or more of a Sessions Judge. He is neither a Magistrate or a Sessions Judge. He acts as a Magistrate for some purpose and as a Sessions Judge for other purposes. The Special Judge is a creature of a statute and enjoys a unique position, which is not known to the Code of Criminal Procedure. As stated above, whatever the position of a Special Judge, he has been clothed with Special authority to take cognizance of offences under section 8 of the Act of 1952 . Even if, therefore, it is assumed that none of the provisions of the Code of Criminal Procedure governing the taking of cognizance including S. 190 Criminal Procedure Code is applicable to a Special Judge, still that will not affect his powers of taking cognizance of a case.

(6) All this discussion has arisen, because there is some doubt about the legality of the investigation that was carried on by sub-Inspector <NAME>. Mr. <NAME> contended that in view o the concession made by the learned Government Pleader before <ORG>, it is clear that the investigation carried out by Sub-Inspector <NAME> was unauthorised and therefore, illegal. We do not propose to pronounce any opinion on this question except to say that the judgment recorded by <ORG> makes no reference to any concession made by the Government Plaeder and all that is stated in the judgment is that the Government Pleader suggested that the best course to be followed is to direct a fresh investigation by the Superintendent of Police. However, for the purpose of considering the arguments advanced before us, we are prepared to proceed on the footing that the investigation carried out by Sub-Inspector <NAME> bore the stamp of illegality and that it was some in violation of the mandatory provisions of section 5-A of the Act of 1947. Even so, the fact remains that, the then Special Judge, <NAME> took cognizance of the case, issued processes and framed charges against the accused. The short question, therefore, for our consideration is, whether the action taken by the Special Judge <NAME> can be considered to be illegal or void merely because he acted on the material collected by an officer who was not authorised to do so and on the basis of a charge-sheet submitted by him. Even if that officer had no authority to carry out the investigation and to submit a charge-sheet, the fact remains that he did collect certain material and placed it before the sanctioning authority in the first instance and after obtaining the sanction, placed it before the Special Judge, who was pleased to take cognizance on the basis of that material. If the charge-sheets regarded as bearing the stamp of illegality, then the Special Judge, could not act on its basis as a charge-sheet properly so called. Act the same time, we are unable to understand what prevented him from treating it as a complaint and action on the same. It has been held by <ORG> in <CITATION> ) that a trial is not vitiated merely because the investigation bore the stamp of illegality. Now, if a trials not vitiated by reason of any illegality in the process of investigation we are unable to understand how cognizance can be so vitiated. As pointed out above, the Special Judge has wide powers taking cognizance of an offence. In other words, he can acton any material tat has been placed before him and he need not stop to consider whether the material placed before him has been collected in a legal way and through the proper medium of an authorised person. Mr. <NAME> contended that the Special Judge would not have taken cognizance of the offence, if there had have taken investigation whatsoever in the matter or if the sanction of the Magistrate. We are not prepared Judge, would not take cognizance against public servants unless a report of the investigation carried out by a duly authorised personing in law, which prevents him from doing so. In this connection, reference may be made to a decision of <ORG> in <NAME> v. State of U.P., AI 1959 SC 831. In that case, the investigation was carried out by a police officer below the rank of Deputy Superintendent of Police without sanction from the Magistrate. Cognizance was taken in due course and thereupon the trial followed at the end of which the accused was convicted. It was held ;

"Generally a conviction is not vitiated because there has not been strict compliance with the provision of the Act I the matter on investigation by a police officer,"

<ORG> followed the earlier decision in <NAME>'s case, (S) . The same view was taken by our <ORG> <CITATION> 49 Bom LR 821 : (AIR 1948 Bom 163) wherein it was held that even if the holding of an investigation by a Sub-Inspector and the consequent charge-sheet submitted by him be regarded as irregular, the validity of the trial was not affected by that irregularity.

(7) Incidentally, it was contended that neither the High Court nor the Special Judge had any authority to direct reinvestigation. In that connection, Mr. <NAME> drew our attention to the provisions of sections 155 and 202 , Criminal Procedure Code . He pointed out that these are the only sections under which the Magistrate can direct investigation. Under sub-section (2) of section 155 , Criminal Procedure Code the Magistrate can ask the police officer to investigate a non-cognizable case, Under section 202 , Criminal Procedure Code , the Magistrate can direct investigation in respect of allegations contained in a private complaint. Mr. <NAME> contended that to carry on an investigation in a cognizable offence is the privilege of the police and no court has any right or authority to regulate or interfere in any manner with that investigation. Except in respect of the situation described in sections 155 and 202 , Criminal Procedure Code , no Magistrate has nay right to direct the police officer to investigate into a case much less to reinvestigate the same. <ORG> in <NAME>'s case, (S) referred to section 202 , Criminal Procedure Code . It also referred to the inhere at powers of the Special Judge to direct reinvestigation into an offence. <ORG> referred to section 202 , Criminal Procedure Code by way of an analogy and stated that the procedure of directing an investigation by Magistrate is contemplated by the Code of Criminal Procedure and for illustrating that proposition, it mentioned section 202 , Criminal Procedure Code . Mr.<NAME> argued that section 202 , Criminal Procedure Code comes into operation only if the conditions prescribed therein are fulfilled viz., (1) that a complain has been received, and (2) that the Magistrate is authorised to take cognizance of the case. According to Mr. <NAME> a Special Judge, who has not received a Private Complaint, cannot act under section 202 , Criminal Procedure Code . He also pointed out that section 202 , Criminal Procedure Code in terms applies to the action to be taken by a Magistrate and a Special Judge is not a Magistrate. There is considerable substance in this line of reasoning.

(8) <ORG> in <NAME>'s case. (S) were ;dealing with a peculiar set of facts. In respect of two cases, the first information disclosed offences falling under section 5 of the Prevention of Corruption Act. That being the case, the investigation that was contemplated into those offences can only be carried out by an officer described in section 5A . The Charge-sheet in those case were filed on 11th August 1951 by a Sub- Inspector of Police, <NAME> and it appears that he applied to the Magistrate for permission to investigate into those cases on 29th March 1951. <NAME> gave evidence and that evidence showed that so far as the case relating to Criminal Appeal No. 97 of 1954 is concerned, he did not make any investigation at all excepting to put up the charge-sheet. All the prior stages of the investigation were conducted by a number of other officers of the rank of Inspector of Police of Sub- Inspector of Police and none of them had taken the requisite persmission of the Magistrate. In the case out of which Criminal Appeal No.96 of 1954 arose, the evidence of <NAME> showed that he took up the investigation after he obtained permission and partly investigated it thereafter. But, the major part of the investigation was done by a number of other officers who were all below the rank of Deputy Superintendent of Police without having obtained form the Magistrate the requisite sanction therefor . On these facts, it was held by their Lordships: "Both these are cases of clear violation of the mandatory provisions of section 5 (4) of the Act ( of 1947) ". This was one set of case. In the Second case, the first information disclosed offences against persons who were not public servants. The case was registered under Section 240 Indian Penal Code and section 6 of the Essential Supplies (Temporary ) Powers Act , 1946 and not under any offence comprised within the Prevention of Corruption Act . The investigation was started on 2nd May 1949. It appears that in the course of this investigation, it was found that the two appellants and another public servant were liable to be prosecuted under section 5 (2) of the Act of 1947. Application was then made to the Magistrate by <NAME> for sanction being accorded to him under section 5(4) of the Act of 1947 and the same was given on 20th March 1951. The charge-sheet was filed by <NAME> on 15th November 1951. On these facts, their Lordships held:

"But, since the investigation prior to the sanction was with reference to a case registered under section 420 , Indian Penal Code and Section 6 of the Essential Supplies (Temporary ) Powers Act , 1946, that was perfectly valid".

(..) was only when the material so collected disclosed the commission of an offence under section 5 (2) of the Act by public servants that any question of taking the sanction of the Magistrate for the investigation arose. Their Lordships further held:

In such a situation the continuance of such portion of the investigation, as remained, as against the public servants concerned by the same officer after obtaining the permission of the Magistrate was reasonable and legitimate".

So far as the direction contained in respect of the first set of cases is concerned, we have to refer to two passages in the judgment of <ORG>. The first passage is at p. 204 of the judgment, and it runs thus:

"It does not follow, however, that the invalidity of the investigation is to be completely ignored by the <ORG> during trial. When the breach of such a mandatory provision is brought to the knowledge of the <ORG> at a sufficiently early stage, the <ORG>, while not declining cognizance, will have to takethe necessary steps to get the illegality cured and the defect rectified, by ordering such investigation as the circumstances of an individual case may call for."

These observations, evidently, apply to a situation where the Magistrate, before taking cognizance, has noticed the invalidity or illegality of the investigation. In that situation, their Lordships have suggested a particular course to be followed by the Magistrate and it is this that, the Magistrate should not refuse to take cognizance of a case but should suspend the Judgment and take necessary steps to get the illegality cured and the defect rectified by ordering such investigation as the individual case may call for. The other passage occurs at p. 205 and it runs thus:

"In our opinion, therefore, when such a breach is brought to the notice of the <ORG> at an early stage of the trial the <ORG> will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined".

The observations in this passage have relation to a later stage that is to say, an early stage of the trial. If the illegality has been noticed at that stage, their Lordships have suggested that such reinvestigation, as may be called for wholly or partly, can be directed. Even so, it is significant to note that in the first set of cases, their Lordships have not given any directions to the Special Judge to order reinvestigation in the case. All that is stated is al follows:

"In the view we have taken of the effect of such violation it becomes necessary for the Special Judge to reconsider the course to be adopted in these two cases."

(9) Mr. <NAME> contended that no reinvestigation in the proper sense of the terms can be directed in a case where a trap has been laid for the simple reason that the trap cannot be re-enacted at the second investigation or reinvestigation. There is considerable substance in this line of argument. As pointed out above their Lordships have contemplated two sets of cases, the first where cognizance has not yet been taken and the second where the trial has commenced but it has not progressed very far. So far as the first situation is concerned, it would be the duty of the Magistrate to direct a fresh investigation. So far as the second situation is concerned, it is for the Special Judge to decide as to whether reinvestigation is necessary and also to decide upon the kind of reinvestigation that can be usefully carried out in the circumstances of the case. It is not as if their Lordships of the Supreme court have laid down that in every case, where it has been discovered that the investigation is illegal that reinvestigation must be directed. The question of reinvestigations been left for the decision by the Special Judge in each set of circumstances. We will consider the implication of these observations at a later stage of the judgment. For the time being, the question, which we are considering is, whether the Special Judge can direct reinvestigation in a case. Whatever the nature of the reinvestigation may be, we have already pointed out that if the investigation is illegal and the report, which is the culmination of the investigation is invalid and bears the stamp of illegality, then the report can be treated as a complaint and acted upon as such. If that is so, then it would be open to the Special Judge to direct an investigation by invoking the provisions of section 202 Criminal Procedure Code by analogy. Section 202 Criminal Procedure Code in terms applies to the Magistrate. But, there is no reason why the provisions of that section cannot be invoked by the Special Judge particularly so, for the purpose of curing a defect or an illegality. The defect or illegality, in effect, nullifies the protection that has been given to the public servants viz., that if the investigation is not carried out by an officer of a specified rank, then the police officer cannot undertake the investigation without securing the sanction of the concerned Magistrate. By reason of the fact that a police officer of a lower rank carried out the investigation without proper order or sanction from the Magistrate, the salutary protection from harassment that has been granted to the accused has been withdrawn and an objection has been taken at the early stage of the trial viz., that the investigation has been carried by the person who is not authorised to do so. Now, it is for the purpose of giving an opportunity to an officer of the specified rank to apply his mind afresh to the question and to come to his own conclusion that reinvestigation is to be directed. It would be futile to the accused to argue that even for such a purpose investigation cannot be ordered under section 202 Criminal Procedure Code. Their Lordships of <ORG> have also referred to the inherent powers of the Special Judge. Mr. <NAME> argued that except <ORG>, the Code of Criminal Procedure has not conferred inherent jurisdiction upon any other <ORG>. But, as pointed out above, the Special Judge is not a creature of the Code of Criminal Procedure and merely because the Code does not confer any inherent jurisdiction upon the <ORG> other than <ORG> we cannot jump to the conclusion that the Special Judge has no inherent jurisdiction. Whatever that may be, w e are bound by the observations made by <ORG> and we must respectfuly follow them. It has laid down in clear terms that a Special Judge can act under section 202 Criminal Procedure Code or under his inherent powers in so far as he directs an investigation into the case.

(10) 7th July 1961. We will now pursue the discussion of the question which we have left in the middle of the preceding paragraph and that is regarding the effect of the order of reinvestigation. This question will also have significance in deciding the second point viz., as to whether a second sanction is necessary under section 6 of the Act of 1947. Mr. <NAME> argued that a reinvestigation is either a futile farce or is a matter of substance. If it is a matter of substance, then there is a possibility of the officer of the specified rank coming to a different conclusion as a result of reinvestigation. In order to appreciate this argument, it is necessary to consider the nature and scope of reinvestigation. It is a fallacy to suggest that reinvestigation effaces or supersedes the first investigation. It must be remembered, as has been laid down in <NAME>'s case, (S) that it cannot be maintained that a valid or legal police report is a foundation of the jurisdiction of the court to take cognizance of a case. In other words, if the cognizance is taken on the basis of a previous investigation, that cognizance remains and is not affected by the order of reinvestigation and the consequent reinvestigation, whatever be its nature and extent. Reinvestigation is not obligatory. The nature and scope of reinvestigation must necessarily depend upon the facts and circumstances of each case. In trap cases where the accused has been caught red-handed in the act of accepting a bribe, reinvestigation may amount more or less to rehearsal of what has already taken place. Again, as pointed out above, where reinvestigation has been directed before taking cognizance of a case, reinvestigation may be very much a genuine and real affair. In our view, the object of reinvestigation is not to cure the invalidity or illegality of the earlier investigation. But, the main object is to minimise the possible hardship that may have been caused to the accused by reason of the fact that investigation was carried out by an officer below the designated rank. In other words, reinvestigation is ordered in fairness to the accused. In most cases, there is very little chance of any new material coming to light in the course of reinvestigation. All that may happen in the course of reinvestigation is that, a superior officer may have the opportunity of applying his mind to the material already collected and satisfying himself about the integrity of the first investigation. Mr. <NAME> complained that the accused is placed on the horns of a dilemma. If he raises the objection that investigation bears the stamp of illegality, reinvestigation would be directed which will take the winds off the sail of defence. On the other hand, if he did not do so, then it will not be possible for him to complain that prejudce has been caused to hiscase by reason of the illegality in the investigation. There is substance in this grievance. We are however, confident that reinvestigation would not and should not be directed as a matter of course or routine. The Court should examine the facts of each case and then pass an appropriate order bearing in mind that the object is not to cure any illegality but to afford an opportunity to the superior police officer to review the facts of the case. It will always be open to the accused to plead that miscarriage of justice has been caused by reason of the violation of the mandatory provisions on account of the first investigation having been undertaken by an officer below the designated rank. So far as Mr. <NAME>'s argument viz., that cognizance taken on the basis of invalid investigation lapses, is concerned, it may be pointed out that the Act of taking cognizance is a judicial act and can only be undone by a judicial order. In exceptional cases it may be open to the Special Judge or the Magistrate, who has taken cognizance himself, to annual the cognizance. Normally, it will be the function of a superior Court to set aside the cognizance. So long as cognizance, which is already taken, has not been set aside by a proper judicial order, the cognizance continues and the order of re-investigation would, in no way, affect the cognizance. For instance, if the officer, to whom re-investigation has been entrusted comes to a different conclusion from the one reached by his predecessor in the course of the first investigation, it willbe opento the Special Judge who has taken cognizance to proceed to discharge the accused at the very commencement of the trial. The arguments advanced by Mr. <NAME> and Mr. <NAME> appear to us to havebeen hased on a misconception regarding the proper function of the investigating agency. The function of the investigating agency is to collect material, which will be utilised at the time of the trial. Assuming, for a moment, that fresh material has been collected in the course of re-investigation, that material by itself will not affect the cognizance that has been taken, because, after all, the material has got to be proved in the course of the trial that takes place after cognizance is taken. The material collected, whether in the course of the first investigation or the second investigation, is not evidence unless the same has been proved in a formal way in the course of the trial. Considering the question from any point of view, we feel no hesitation in rejecting the argument viz., that re-investigation has the effect of effacing the first investigation and superseding the cognizance that has already been taken on the basis of the first investigation.

(11) That takes us to the second argument viz., that a fresh sanction is necessary because a fresh investigation has taken place. Our attention was drawn to the order of the sanction wherein the Municipal Commissioner has stated that he was issuing the sanction upon a perusal of the record of investigation. It was contended that since the possibility of new material cropping up in the course of re-investigation cannot be excluded, the sanction that was granted on the basis of the old investigation must necessarily lapse. This argument is based on an assumption. We do not know whether, as a matter of fact, in the course of reinvestigation fresh material has been collected and new facts have come to light. Whether that is a fact or not can only transpire in the course of the evidence of <NAME>, the police officer, who undertook the second investigation. It is difficult to imagine that new facts will be collected in the course of fresh investigation. The possibility of collecting even fresh material and fresh evidence is very much remote. The first pint, which must be noted, is that the sanction that was granted on the basis of invalid investigation is not illegal. Section 6 of the Act of 1947 does not enjoin the sanctioning authority to look into any particular papers. It does not lay down that the officer authorised to grant the sanction must peruse the investigation papers. The sanctioning authority can proceed on any material which, according to him, is sufficient or trustworthy. He is not concerned to findout even the truth or otherwise of the facts disclosed to him. All that is necessary for the sanctioning authority to do is to apply his mind to the facts as disclosed to himand to accord sanction to the offence that would be disclosed on the facts placed before him. The grant of sanction is not a judicial act. It is purely an executive act. It has been laid down by the Madras High court in the matter of <NAME>, ILR 27 Mad 54:

"But the <ORG>, in according or withholding sanction, under section 197 (for the prosecution of a public servant in respect of an offence alleged to have been committed by him as such public servant), acts purely in its executive capacity and the sanction need not be based on legal evidence".

The sanction accorded, in the present case, is not attacked on the ground that the sanctioning authority had not applied his mind to the facts consituting the offence. What is contended is that the material placed before him was illegally collected and the sanction in so far as it is based on illegally collected material, is invalid. This argument is not sound, and, as stated above, sanction can be accorded on any material sufficient or otherwise collected in. lawful manner or otherwise. The next stage of the argument is that, by reason of the fact that a fresh investigation has taken place, the sanction already accorded must necessarily lapse. We are unable to accept this line of argument. We have already considered the nature and scope of re-investigation and also its object. Even if fresh material is assumed tohave been collected in the course of fresh investigation, it would not affect the sanction, accorded earlier. The argument assumed a subtler from at the hands of Mr. <NAME>. He pointed out that the material that has gone to the sanctioning authority has gone through a distorted medium. The sanctioning authority must see through the medium of the representations made to him. He cannot see the facts as they are. The subjective element in the appraisal of the material, according to him, cannot be ignored. This argument will have required some force has it been the rule that it is necessaryfor the sanctioning authority to find out the truth or otherwise of the facts brought to his notice. The question of a misappreciation of the material by the sanctioning authority by reason of the fact that the medium is distorted does not arise. <ORG> has laid down in <CITATION> . :

"It was not for Mr. <NAME> to judge the truth of the allegations made against the appellant by calling for the records of the connected claim cases or other records in connection with the matter from his office."

We are, therefore, satisfied that the sanction that was already granted remains valid and there is no need of any fresh sanction after re-investigation.

(12) The result is that the applications fail and the rules are discharged.

(13) Application dismissed.