IMPORTANT POINT
Taking cognizance is not a mechanical process and law requires there must be some application of judicial mind to come to prima facie findings that offence was committed.

JUDGMENT

S.K. Agarwal, J. - This revision petition u/Sec. 397 read with Section 401 Cr. P.C. is directed against the order dated 30th January, 1999 framing charge against the petitioner in the case FIR No. 803/98 under Sections 25 Arms Act, 1959 P.S. Hauz Khas and rejecting his application for discharge.

2. Briefly the allegations are that on 20th October, 1998 police officials searched the premises C-30, My fair Gardens, New Delhi and found fourteen live cartridges of .32 bore revolver in unlawful possession of the petitioner. Case was registered and after investigations charge-sheet was filed on 18th December, 1998 without any sanction or ballistic expert report. Accused petitioner was produced in custody before the duty Magistrate and was supplied documents. Thereafter, supplementary charge-sheet was filed on 7th January, 1999 after ballistic expert report and sanction for prosecution was obtained under Section 39 of the Arms Act. Cognizance was taken on the basis of the supplementary charge-sheet, documents etc. was supplied to him. The petitioner sought discharge and dropping of the proceedings against him on the ground that on the date of filing of the first charge-sheet there was no sanction by the competent authority (DCP - Licencing) for prosecution; that only conditional sanction was accorded on 23rd December, 1998 and complete sanction was granted only on 4th January, 1999 and that cognizance of an offence can be taken only once; which was taken on the filing of the first charge-sheet when the documents were supplied. The Court of Sh. J.P. Narain by the impugned order dated 30th January. 1999 rejected the contention and framed charge against the petitioner. This order is under challenge.

3. I have heard the learned counsel for the petitioner and learned APP for the State. The question which, arises for consideration is. Whether valid cognizance could be taken on the basis of supplementary challan filed on 7th January, 1999 subsequent to the grant of sanction on 4th January. 1999? The answer is in the affirmative.

4. Learned counsel for the petitioner argued that the cognizance can be taken only once, which was taken on 18th December, 1998 and since there was no sanction under Section 39 of Arms Act on that date, therefore, the petitioner is entitled to be discharged. In support of his submission, reliance was placed on the decision of this Court in Om Prakash v. State 1980 Rajdhani Law Reporter 649. Learned APP for the State argued that the prosecution could be instituted only after sanction was granted. Filing of the charge sheet without sanction was meaningless and no cognizance on the same could be taken. Referring to Section 465, omission or irregularity in the grant of sanction unless it occasions failure of justice cannot be fatal to the prosecution case. In order to appreciate the rival contentions, it is necessary to refer Section 39 of the Arms Act. It reads as under:

"No prosecution shall be instituted against any person in respect of any offence u/s, 3 without the previous sanction of the District Magistrate."

5. Section 39 prohibits "institution" of the prosecution itself without a valid sanction. There is no dispute that possession of live cartridges without licence is an offence defined under Section 3 of the Arms Act. The expression "institution" is not defined in the Act. It would mean to set-up, to originate to start to introduce. The meaning of the word "institution" would depend upon the context in which it is used. Since the institution itself was prohibited the institution of the charge-sheet on 18th December 1998 within Section 39 was not permissible. Thus no cognizance on such a charge-sheet could be taken. On 7th January. 1999 the matter was adjourned to 12th January. 1999 on which date cognizance was taken and detailed order was passed.

6. It has been held by several authoritative pronouncements of Apex Court that taking of cognizance is not mechanical process. Law requires there must be som