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13. These sanctions having been obtained, on February 25, 1943, the Deputy Superintendent of Police filed a complaint in the Court of the Chief Presidency Magistrate, Calcutta, and it appears to their Lordships that it is relevant to observe that the complaint refers to a number of facts which the police purported to have then discovered and that while, as has already been stated, the sanctions related only to offences (a) under Section 161 and (b) under Section 120B read with Section 420, the same facts or some of them would appear equally to support charges under Section 120B read with Section 161 or with Section 165.

33. Finally the Court dealt with the competence of the Magistrate to record a conviction under Section 120B read with Section 165 when the charge was for an offence under Section 120B read with Section 161, and after a close analysis of the relevant offences held that under Section 238 of the Code such a course was justified.

34. The Court stated that no other issue was raised before it. This statement was challenged by counsel for the appellants who urged that at any rate an attempt had been made to argue the question arising upon the admissibility of evidence to which reference has been made.

40. This being their opinion, it is not strictly necessary to consider the second point that was raised, viz. whether, if a sanction was necessary, the subsequent proceedings were justified by the sanction that was in fact given. But they think it desirable to say that upon this question they fully concur in the judgment of the Federal Court in this case. Section 230 of the Code of Criminal Procedure is clearly part of the Code which becomes operative when once a sanction has been given under Section 197, and, as has been pointed out in the earlier part of this judgment, the whole of the facts, which would justify equally a charge under Section 120B read with Section 420 and a charge under Section 120B read with Section 161, are stated in the complaint originally filed by the Deputy Superintendent of Police, which at the same time exhibited the sanctions already obtained. It is an inference, which at this late stage of the proceedings cannot properly be challenged, that the same facts were before the sanctioning authority when the sanction was given. If it was desired to raise such a question, that should have been done at the earliest moment when the prosecution could have supported by evidence the inference which even without it can fairly be drawn. Their Lordships were pressed by learned Counsel for the appellant with the recent decision of the Board in Morarka's case , but in that case the facts were wholly different and the decision gives no help to the appellants. Their Lordships are therefore of opinion that, if any sanction under Section 197 was necessary, such sanction was given as justified the Court in taking cognisance of the altered charges.

42. Applying this principle to the present case, their Lordships are of opinion that the conviction of Gill cannot be sustained, and, since the charge is one of conspiracy, it follows that Lahiri's conviction also falls.

43. In this view of the case it is unnecessary to consider the final question that was raised whether, upon the assumption that the Court had proper cognisance of the case, a conviction could be recorded not under Section 120B read with Section 161 but under Section 120B read with Section 165, and their Lordships express no opinion upon it.