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17. Even though, on the points as mentioned above, the chargesheet against the applicant needs to be quashed, but inasmuch as, the learned counsel representing the parties have addressed lengthy arguments as regards validity and illegality or otherwise of the individual charges framed against the applicant, it would be unfair to the parties if we do not deal with the same.

18. We may first deal with charge no.2 with the allegations that in view of provisions contained in Section 197 Cr.PC it was necessary to get sanction of the disciplinary authority before filing a charge-sheet in the court against Shri Malik, he being a class-I IPS officer, and that inasmuch as, no sanction was sought from the Government by CID (Crime) before filing charge-sheet in the court of Metropolitan Magistrate, Ahmedabad, the action of CID (Crime) would be illegal and without following the legal procedure. The Government, it is stated, decided to withdraw the charge, and the court also supported the view of the Government and held that before filing charge sheet, legal procedure was not followed, and gave permission to withdraw the case vide order dated 6.5.2006. The applicant is alleged to have allowed this illegal procedure under his supervision as the head of CID (Crime) and did not raise any objection against the illegal procedure, and thus failed to do effective supervision. We have already mentioned that what is known as challan in this part of the country is known as charge in the State of Gujarat. As a matter of fact, there is nothing known as challan or charge under Cr.PC. Whether it be called challan or charge, it is actually a final report under Section 173 Cr.PC. This report is forwarded to the Magistrate empowered to take cognizance of the offence as soon as the investigation is complete. It contains the names of parties; the nature of the information, the names of persons who appear to be acquainted with the circumstances of the case; whether any offence appears to have been committed and, if so, by whom; whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties; and whether he has been forwarded in custody under Section 170. On the basis of material contained in the final report under Section 173, the concerned Magistrate, after applying his mind, takes cognizance of the offence. The word cognizance has not been defined in the Cr.PC, but it has always been understood to mean when the court applies its mind to the material before it and issues process. We may also mention at this stage that in view of provisions contained in Section 160 Cr.PC, any police officer making an investigation can by order in writing require the attendance before himself of any person being within the limits of his own or any adjoining police station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required. Non-obedience of the orders passed by the investigating officer is punishable under Section 174 IPC. Section 174 IPC provides that whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, may intentionally omit to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extent to five hundred rupees, or with both, or, if the summons, notice, order of proclamation is to attend in person or by agent in a court of justice, with simple imprisonment for a term which may extend to six months, or with find which may extend to one thousand rupees, or with both. Offence under Section 174 IPC is non-cognizable and bailable and is triable by any Magistrate, as may appear from the First Schedule appended to Cr.PC. Section 197 Cr.PC, insofar as the same is relevant, reads as follows:

in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Learned counsel representing the applicant would contend that there is no bar against registration of a case or investigation by police agency or submission of a report by the police on completion of investigation as contemplated under Section 173 Cr.PC without previous sanction of the Government, and that assuming that the provisions of Section 197 Cr.PC are applicable, there was no illegality in presenting the final report before the Magistrate without obtaining previous or prior approval, or sanction of the Government. For the contention as noted above, the learned counsel places reliance upon the judgment of the Honble Supreme Court in State of Karnataka & another v Pastor P. Raju [(2006) 6 SCC 728]. The facts of the case aforesaid reveal that one R. N. Lokesha, lodged an FIR alleging that he along with some other persons was celebrating Sankranti festival when the respondent, Pastor P. Raju, who was a member of Christian community, came there and made an appeal to them to get converted to Christian religion where they would get many benefits and facilities which would not be available to them in the Hindu religion to which they belonged. On the basis of an FIR, a case came to be registered against the pastor u/s 153-B IPC. The accused was arrested and produced before a Magistrate who remanded him to judicial custody. His application for bail was rejected as he had committed a non-bailable offence. The pastor filed a petition u/s 482 Cr.PC for quashing of the proceedings initiated against him u/s 153-B IPC, which was allowed by the High Court. Thus, the appeal before the Supreme Court. The principal submission that prevailed with the High Court was that before initiating any proceedings u/s 153-B IPC, the police ought to have obtained previous sanction of the Central Government or of the State Government or of the District Magistrate, as required by Section 196 (1A) Cr.PC, and in the absence of such a sanction having been obtained, the proceedings initiated against the respondent pastor were illegal and without jurisdiction. Section 196 (1A) Cr.PC, insofar as the same is relevant, reads as follows:

(1A) No Court shall take cognizance of 

(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy co commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. The language employed in Section 196 (1A) and Section 197 Cr.PC is similar, inasmuch as, no court is to take cognizance of an offence unless previous sanction is obtained. Whereas, Section 197 is general in nature, and is applicable when a person accused of a crime is a Government servant, Section 196 (1A) deals with particular offences. Section 197 would be applicable with regard to all kinds of offences committed, whereas Section 196 (1A) would be applicable when the offence said to have been committed by the accused is under Section 153B or 505 IPC, or it is a case of criminal conspiracy to commit such offence. Be it Section 196 (1A) or Section 197 Cr.PC, before a court may take cognizance, previous sanction of the Government in the case of Section 197, and of Central Government or State Government or District Magistrate in the case of Section 196 (1A) is essential. The word cognizance, as mentioned above, has not been defined, even though the same has been mentioned in several provisions of Cr.PC. The dictionary meaning of the word cognizance is judicial hearing of a matter. Meaning of the said word has been explained by judicial precedents, and as mentioned by the Honble Supreme Court in Pastor P. Rajus case (supra), which has acquired a definite connotation. While quoting from its judgment in Narayandas Bhagwandas Madhavdas v State of West Bengal [(1960) 1 SCR 93 : AIR 1959 SC 1118], the Apex Court observed that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) Cr.PC, 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. It was held 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 a police report or upon information received from any other person that an offence has been committed; and the issuance of process is at a 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. In the facts of the case, it was held that when only an order of remanding an accused to judicial custody is passed, it would not amount to taking cognizance of the offence, and in such circumstances Section 196 (1A) Cr.PC can have no application at all. In addition to its finding that a stage for cognizance had not reached, and, therefore, the proceedings could not be quashed for want of prior sanction of the Government, it was further observed that the power under Section 482 Cr.PC can be exercised to quash 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. The Honble Supreme Court placed reliance for the observations as mentioned above on number of its earlier judgments. It has also been held that there is no bar against 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.PC. In short, the bar is for a court to take cognizance and not for the police to register and investigate a crime and present report u/s 173 Cr.PC before the concerned court. The respondents would interpret Section 197 Cr.PC as if before presenting a challan or submitting a final report in the concerned court u/s 173, prior sanction of the Government is required. What has been clearly mentioned in charge No.2 is that no sanction was sought from the Government by CID (Crime) before filing a charge-sheet before the Metropolitan Magistrate, and, therefore, the action of CID (Crime) would be illegal and without following the legal procedure, and the chargesheet would not be in accordance with provisions contained in Sections 195 and 197 Cr.PC. Why Section 195 has also been mentioned is not understandable at all. During the course of arguments, no stress was laid by the counsel representing the respondents as to applicability of Section 195, and rightly so, as the same would not be even remotely applicable to the facts of the present case.

Joint Civil Military Workshop on National Security  dt. 6.2.2006 to dt. 10.2.2006.

Vertical Interaction Course on National Security, challenges and the police response  dt.13.2.2006 to dt. 18.2.2006. On 5.1.2006, V. K. Valekar, Police Inspector (Training) addressed a letter to Addl. DG of Police, CID (Crime & Railways) with the caption, Regarding furnishing information. The same reads as follows:

In view of the captioned subject, it is informed that an offence has been registered under section 174 of the IPC against Shri G. S. Malik, SP, Bharuch, in the CID (Crime). It is requested to furnish details of this case along with name of the court in which charge-sheet is filed and its criminal case number with present status. Keshav Kumar, Dy.IGP (Crime-2), CID (Crime & Railways) addressed a letter dated 25.1.2006 to Addl. Director General of Police, Police Training Department with the subject Regarding furnishing information. It was informed to the Addl. DGP, Police Training that an offence had been registered vide Gandhinagar zone Station non-cognizable CR No.1 of 05 u/s 174 IPC on 15.5.2005, and that Shri M.D. Jani, Dy.SP had registered the said complainant on behalf of the Gujarat State. Brief facts of the case have been given. It appears that the case was pending at that time, as it has been mentioned that after completion of the investigation, permission for filing charge-sheet was conveyed to the investigating officer on 1.6.2005 and as such a charge-sheet was filed in the case in the court of Chief Metropolitan Magistrate, Ahmedabad, and that Shri Malik had presented himself before the Chief Metropolitan Magistrate after the court issued notice to him. The applicant has also brought on record the noting portion of the file. Note dated 24.12.2005 reads as follows: