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Delhi District Court

Anil Dutt Sharma vs State on 9 December, 2023

          IN THE COURT OF V. K. BANSAL,
      PRINCIPAL DISTRICT AND SESSIONS JUDGE,
     NORTH-EAST, KARKARDOOMA COURTS, DELHI.

                                         Crl. Revision No.184/2023
                                      CNR No.DLNE01-003219-2023


In the matter of:

Anil Dutt Sharma
S/o Late Sh. B. D. Sharma
R/o H. No. B-14 (G-1)
Dilshad Garden, Delhi-110095.                 .........Revisionist

Versus

1. The State of NCT of Delhi.

2. Sh. Surender Kasana
   S/o Lakh Ram,
   R/o A-31/143, Main Netaji
   Gali Mauzpur, Delhi-110053.              ...........Respondents

Date of registration of revision:                           21.10.2023
Date when revision was received by this Court:              21.10.2023
Date of conclusion of arguments:                            28.11.2023
Date of pronouncement of order:                             09.12.2023

ORDER

1. The present revision petition has been filed challenging the order dated 14.09.2023 vide which the learned Trial Court has taken cognizance of the offence punishable under Section 420 IPC.

2. The brief facts giving rise to the present revision petition VIRENDER KUMAR are that on the complaint filed by Surender Kasana, FIR number BANSAL 1111/2014, under section 384 IPC was registered on 19.08.2014. Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.12.09 The charge sheet was filed on 17.07.2018 with an application for 17:32:30 +0530 condonation of delay. After hearing the arguments the learned CR no.184/23 Anil Dutt Sharma Vs. State Page 1/16 Trial Court has taken cognizance of offence punishable under sections 384/506(1)/420 IPC. Aggrieved by the same, the present revision petition has been preferred.

3. Notice of the revision petition was given to the State, which was accepted by the learned Chief P.P. Trial Court record was requisitioned.

4. I have heard learned counsel for the revisionist, learned Chief P.P. for the State and perused the record.

5. Learned counsel for the revisionist submitted that according to the complaint on the basis of which FIR was registered, the allegations are that in the month of December, 2013, complainant was doing renovation work of the building i.e. property number A-7/51, Gali no.7, A Block, Bhajanpura, Delhi. Anil Dutt Sharma-revisionist herein reached there and introduced himself as J.E. of Municipal Corporation and asked the complainant-Surender Kasana to show him document of permission for renovation work. The revisionist also threatened and pressurized the complainant if he wants protection from demolition, he should pay protection money and demanded Rs.40,000/-, but ultimately received only Rs.18,000/- from the complainant.

6. Learned counsel submitted that FIR was registered for offence punishable under section 384 IPC and the charge-sheet was also filed only for offence punishable under section 384 IPC. Learned counsel submitted that the power and jurisdiction of the Magistrate is to take cognizance of any offence upon police VIRENDER report of such facts and not otherwise. In the present case, the KUMAR BANSAL Court has exceeded its power and instead of taking cognizance Digitally signed by VIRENDER KUMAR on the basis of allegations made in the complaint, it had gone BANSAL Date: 2023.12.09 17:32:44 +0530 beyond the police report.

7. The learned Magistrate should not have condoned the delay on the basis of allegations of the complainant that the revisionist represented himself as an employee of MCD and asked for money if he does not want that the property be demolished as no reasonable cause has been shown for condoning the delay. Learned counsel submitted that the Honorable High Court of Delhi in Vinod Kumar Jam vs. Registrar of Companies, 28 (1985) DLT 474, 1985 (9) DRJ 232, 1985 RLR 603, held as under:

"It is thus manifest that if a complaint is prima facie barred by time when it is filed, it becomes necessary for the prosecuting agency to explain the delay and seek condensation of the same. Unless the delay is condoned the court cannot take cognizance of the complaint. In other words, the Magistrate has to apply his mind to the question of limitation at the pre-cognizance stage and satisfy himself that delay has been properly explained or that it is necessary to condone the delay in the interests of justice. The Magistrate cannot hasten to issue the process without first recording his satisfaction that the delay was satisfactorily explained to him or that he was of the view that the condensation of delay was in the interests of justice. It 19 highly doubtful that the court can condone the delay and thus extend limitation subsequent to the taking of cognizance of the offence. Of course, the condensation of delay may be implied from the act of the Magistrate in taking cognizance after the expiry of the period of limitation and proceeding with the case but the order must be clear and categorical in this respect. He has no power or authority to condone the delay provisionally or ex facie as has been seemingly done in the instant case."

8. Learned counsel submitted that the learned Magistrate was not having power to add Section 420 IPC prior to the stage of framing of charge as Section 216 (1) Cr.P.C gives impression that offence can be added or altered by learned Magistrate only when Magistrate has framed charge of certain offence. If the charge is VIRENDER KUMAR not framed, it cannot be altered or added as the stage of taking BANSAL cognizance is pre-stage of trial, hence, the Trial Court was not Digitally signed by VIRENDER KUMAR BANSAL within its jurisdiction to change the offence as held by The Date: 2023.12.09 17:32:51 +0530 CR no.184/23 Anil Dutt Sharma Vs. State Page 3/16 Honorable Supreme Court in case of Vinubhai Haribhai Malaviya & Ors. Vs. State of Gujarat and Anrs. 2019 SCC Online SC 1346, wherein it has been held that a criminal trial does not begin after cognizance is taken, but only after charges are framed.

9. Learned counsel submitted that even otherwise ingredients of Section 420 IPC are not made out as there is no inducement or dishonest representation. Infact there is fear factor involved because as per the complaint, there are allegations of impersonation, threat of ceiling and demolition coupled with demand for protection money. Learned counsel submitted that the Supreme Court of India in case titled as State of Maharashtra Vs. Sharadchandra Vinayak Dongre, 1995 Volume 1 SCC Page 42, held as under:

"the Magistrate is not bound by the lebel given to the report or the charge sheet by the Investigating Officer and it is for him to decide whether the report and material on which it is based is sufficient for him to take cognizance or not."

10. Learned counsel submitted that discretion conferred on the Court under Section 473 Cr.P.C to take cognizance after the period of limitation under the condition specified therein has to be exercised judicially and on well recognized principles. Wherever the Court exercises discretion, same must be by speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect, it is not permissible for a superior court to come to the VIRENDER KUMAR BANSAL conclusion that the Court must be deemed to have taken Digitally signed cognizance by condoning the delay. Here the Court has not given by VIRENDER KUMAR BANSAL Date: 2023.12.09 17:32:58 +0530 any reason, but overlooked the report of the police. It is prayed CR no.184/23 Anil Dutt Sharma Vs. State Page 4/16 that keeping in view all these facts, the order of the Trial Court be set-aside.

11. Learned counsel in support of his arguments has placed reliance upon judgment of the Honorable High Court of Allahabad in case title as Shalini Kashyap and Anr. v State of UP, 2022 (9) ILR (Allahabad) 445, wherein it has been held as under:-

"17. The outcome of the above discussion is that cognizance for offence under Section 406 I.P.C. by learned Magistrate against all the accused persons is legally erroneous, therefore, cog- nizance order is set-aside qua to taking cognizance for the of- fence under Section 406 I.P.C. as well as order passed in the re- vision petition is interfered to the extent of observation that there is prima-facie evidence against Rohit Kashyap (applicant no.2) to summon him under Section 377 I.P.C., as at this stage of charge-sheet no offence could be added or deleted and fur- ther that there is prima- facie evidence to summon Arvind under Sections 498-A, 406, 504, 506 I.P.C. and 3/4 D. P. Act only to the extent to summon him under Section 406 I.P.C. also. How- ever, the learned Magistrate is at liberty to consider the mate- rial available to take cognizance of other offence, if any, against any accused, at the time of framing of charge."

12. Ld. counsel has also relied upon the judgment of the Honorable Supreme Court in the of State of Gujrat vs Girish Radhakrishnan Varde, (2014) 3 SCC 659, wherein it is held as under:

"17. Since the instant case is based on the FIR lodged before the police, the correct stage for addition or substraction of the Sections will have to be determined at the time of framing of charge. But the learned single Judge of the High Court in the impugned judgment and order has not assigned reasons with accuracy and clarity for doing so and has made a casual obser-

VIRENDER vation by recording that the Trial Court at the appropriate KUMAR stage will have the power to determine as to which provision is BANSAL to be applied before the matter is finally sent for trial. The fall Digitally signed by VIRENDER KUMAR BANSAL out of the Order of the High Court is that the prosecution repre- Date: 2023.12.09 17:33:05 +0530 sented by the appellant -State of Gujarat might be rendered CR no.184/23 Anil Dutt Sharma Vs. State Page 5/16 remedy less as setting aside of the order of the Magistrate is likely to give rise to a situation where the prosecution would be left with no remedy for rectification or appreciation of the plea as to whether inclusion or exclusion of additional charges could be permitted. In fact, while upholding the order of the learned Additional District & Sessions Judge, the High Court has further overlooked the fact that the Additional District & Sessions Judge before whom revision was filed against the or- der of the Chief Judicial Magistrate, could have allowed the re- vision on the ground of erroneous exercise of jurisdiction by the Chief Judicial Magistrate who permitted to add three more Sec- tions into the charge-sheet. But the Additional District & Ses- sions Judge instead of doing so has straightway quashed the or- der passed by the Magistrate instead of confining itself to con- sideration of the question regarding error of jurisdiction and laying down the correct course to be adopted by the magistrate. In fact, the correct course of action should have been laid down by the High Court as also the learned Additional District & Sessions Judge by permitting the appellant - State of Gujarat to raise the question of addition of charges at the time of framing of charge under section 228 of the Cr. P.C. and should not have passed a blanket order setting aside the order of the Magistrate without laying down the correct course of action to be adopted by the affected parties with the result that three orders came to be passed by the Chief Judicial Magistrate, Additional District & Sessions Judge and the learned Single Judge of the High Court, yet it could not resolve the controversy by highlighting the appropriate course of action to be adopted by the prosecu- tion-State of Gujarat as also the magistrate which permitted addition of sections after submission of charge-sheet missing out that the matter did not arise out of a complaint case lodged before the magistrate but a case which arose out of a police re- port/FIR in a Police Station.

18. As a consequence of the aforesaid analysis, we although do not approve of the order of the Chief Judicial magistrate who permitted addition of three Sections into the charge-sheet after the charge-sheet was submitted, we are further of the view that the Additional District & Sessions Judge and the High Court VIRENDER ought to have specified the correct course of action to be KUMAR BANSAL adopted by the magistrate and the complainant/prosecution Digitally signed by party, failure of which got the matter enmeshed into this litiga- VIRENDER KUMAR BANSAL Date: 2023.12.09 tion impeding the trial. 17:33:12 +0530 CR no.184/23 Anil Dutt Sharma Vs. State Page 6/16

19. We, therefore, dispose of this appeal by observing and clarifying the order of the High Court to the extent that the appellant State of Gujarat shall be at liberty to raise all questions relating to additions of the Sections on the basis of the FIR and material collected during investigation at the time of framing of charges by the Trial Court since the matter arises out of a police case based on the FIR registered under Section 154 of Cr.P.C. and not a complaint case lodged before the Magistrate under Section 190 of the Cr.P.C. Thus, the High Court although may be correct in observing in the impugned order that the Trial Court was not precluded from modifying the charges by including or excluding the sections at the appropriate stage during trial, it was duty bound in the interest of justice and fairplay to specify in clear terms that the Trial Court would permit and consider the plea of addition of sections at the stage of framing of charge under section 211 of Cr. P.C. since the matter emerged out of a police case and not a complaint case before the Magistrate in which event the Magistrate could exercise greater judicial discretion. Ordered accordingly."

13. Learned counsel prayed that in view of the law settled by the Apex Court that offence cannot be added at this stage, the order of the Trial Court is not sustainable under law and prayed that the order of the Trial Court taking cognizance of offence punishable under section 420 IPC be set aside.

14. Learned Chief P.P. submitted that in this case no doubt FIR was registered only for offence punishable under section 384 IPC, but it is settled law that Magistrate is not bound by report submitted by the police. The Magistrate has to apply its own mind and pass order considering all the facts and evidence collected. There is no such bar upon Magistrate that he will take cognizance only of the offences mentioned by the police. In the present case, the revisionist has represented himself to be J.E. of the Municipal Corporation and asked the complainant to pay VIRENDER KUMAR money, if he does not want his house to be demolished. The BANSAL accused/appellant herein was knowing that he is not J.E. of Digitally signed by VIRENDER KUMAR BANSAL MCD, but he with dishonest intention represented himself as J.E. Date: 2023.12.09 17:33:23 +0530 of the Municipal Corporation and induced the complainant to pay CR no.184/23 Anil Dutt Sharma Vs. State Page 7/16 Rs.18,000/- on the pretext that he will protect the building, which the complainant was renovated. Besides, there are threats that if the complainant reported the matter to the police, he will face dire consequences.

15. Learned Chief P.P. submitted that as accused has demanded money by misrepresenting himself as J.E. of MCD and as there is unlawful loss to the complainant and unlawful gain to the accused/revisionist, therefore, ingredients of Section 420 IPC are also made out. It is prayed that under the circumstances the Trial Court has rightly taken cognizance of offence punishable under Section 420 IPC. However, learned Chief P.P. agreed that if Section 420 IPC is made out then offence under Section 384 IPC is not made out.

16. After hearing the arguments and going through the record, I found that for making out offence of cheating, the necessary ingredients are as provided in Section 415 IPC which reads as under:

"415. Cheating.--Whoever, by deceiving any person, fraudu- lently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so de- ceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explana- tion.--A dishonest concealment of facts is a deception within the meaning of this section. Illustrations

(a) A, by falsely pretending to be in the Civil Service, inten-

tionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy VIRENDER and pay for the article. A cheats. KUMAR BANSAL

(c) A, by exhibiting to Z a false sample of an article, inten- tionally deceives Z into believing that the article corresponds Digitally signed by VIRENDER with the sample, and thereby, dishonestly induces Z to buy and KUMAR BANSAL Date: 2023.12.09 pay for the article. A cheats. 17:33:31 +0530 CR no.184/23 Anil Dutt Sharma Vs. State Page 8/16

(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly in- duces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly in- duces Z to lend him money. A not intending to repay it. A cheats.

(g) A intentionally deceives Z into a belief that A means to de- liver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in conse- quence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the pre- vious sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats."

17. The punishment for cheating is provided under Section 420 IPC. From the definition of cheating, it is clear that if a person fraudulently or dishonestly induces a person to deliver any property, which he would not have so done, if not so deceived then it amounts to cheating. In the present case, revisionist Anil Dutt Sharma deceived the complainant by dishonestly represent- ing himself as JE of Municipal Corporation and by this deception made him to part with money. The complainant would not have parted with money i.e. Rs.18,000/-, if he would not have been so deceived by the revisionist, who represented himself as J.E of the VIRENDER KUMAR Municipal Corporation. Due to this dishonest representation, the BANSAL Digitally signed complainant was deceived and he paid Rs.18,000/-, which he by VIRENDER KUMAR BANSAL Date: 2023.12.09 17:33:39 +0530 would not have otherwise paid to the revisionist herein, if not so CR no.184/23 Anil Dutt Sharma Vs. State Page 9/16 deceived or induced. The revisionist while making such decep- tion was knowing that he is not having any such power as J.E. of Municipal Corporation. Hence, ingredients of Section 420 IPC are clearly made out. So far as offence of extortion is concerned, the requirement of law for making out offence of extortion are different, which are not there in the present case.

18. So far as the contention of learned counsel that at the time of taking cognizance, section cannot be changed, in my opinion, the judgement relied upon by the learned counsel in State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659 is not on the same facts. In that case, after the police investigation was completed on the basis of FIR registered and charge-sheet was submitted by the police before the learned MM, Deesa, which included Sections 365, 511, 387, 386, 34, 120- B and 506 (2) as also under Section 25(1) (A) of the Arms Act, the complainant noticed that despite the fact that the respondent- accused robbed Rs.50,000/- from the complainant on one previ- ous occasion and this time again attempted to rob and kidnap the complainant, the offences punishable under Section 364, 394 and 398 of IPC were not included in the chargesheet, which was filed against respondent and other accused persons. In order to rectify the said error the complainant submitted an appli- cation before the learned Magistrate, Deesa for adding other Sec- tions 364, 394 and 398 of the I.P.C., who after hearing the parties was pleased to allow the application bearing No.1754/2009 and permitted further additions of Sections 364, 394 and 398 of IPC VIRENDER KUMAR into the chargesheet. BANSAL

19. The above mentioned facts clearly show that the learned Digitally signed by VIRENDER KUMAR BANSAL MM added sections 364, 394 and 398 of IPC after taking cog- Date: 2023.12.09 17:33:47 +0530 nizance and under those circumstances the court held that once CR no.184/23 Anil Dutt Sharma Vs. State Page 10/16 cognizance is taken, the correct stage for adding or subtracting section will be at the time of framing of charge.

20. In the present case, the Court has at the first instance taken cognizance of offence under Section 420 IPC. It is not the case, where the Court has once taken cognizance and then added the section.

21. It is settled law that at the time of taking cognizance, the Court has to apply its mind. The Magistrate is not bound by the lebel of report given or the charge-sheet filed by the IO. It is for the Magistrate to decide as to whether the material on which it is based is sufficient for him to take cognizance or not and also what offence it discloses.

22. On receiving the police report, Magistrate may take cognizance of the offence under Section 190 (1) (b) Cr.P.C and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence is made out or not. The Magistrate has not to proceed mechanically in agreeing with the opinion formed by the police, but has to ap­ ply his mind and peruse the papers placed before him, he has to apply his mind on all the details embodied in the police report and to other documents and papers submitted along with report. The law is well settled even if the investigating agency is of the view that no case is made out against the accused, the Magistrate can apply his mind independently to the material contained in the VIRENDER KUMAR police report and take cognizance thereupon in exercise of his BANSAL Digitally signed power under Section 190 (1) (b) Cr.P.C. Reliance in this regard by VIRENDER KUMAR BANSAL Date: 2023.12.09 17:33:54 +0530 can be placed on judgment of the Honorable Supreme Court in CR no.184/23 Anil Dutt Sharma Vs. State Page 11/16 case cited as Uma Shankar Singh Vs. State of Bihar, 2010 Volume 9 SCC 8479.

23. The Honorable Supreme Court in the case of State of West Bengal and Anrs. Vs. Mohd. Khalid and Anrs., 1995, Volume 1 SCC page 684, has held that:

"Section 190 of the Code talks of cognizance of offence by Magistrate. This expression has not been defined by the Code in its broad and liberal sense. It means taking notice of the offence. This would include intention of initiating judicial proceedings against offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purpose. The word cognizance indicate point when a Magistrate or Judge first take judicial notice of offence."

24. The Honorable Supreme Court in the case of Dr. Subramanian Swamy v. Dr. Manmohan Singh, AIR 2012 SC 1185, has held that:

"Though, the term 'cognizance' has not been defined either in the 1988 Act or the Criminal Procedure Code, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially"

25. The Honorable Supreme Court in the case of General Officer Commanding v. CBI, (2012) 6 SCC 228, has held that:-

"39. In broad and literal sense 'cognizance' means taking notice of an offence as required under Section 190 Criminal Procedure Code 'Cognizance' indicates the point when the court first takes judicial VIRENDER notice of an offence. The court not only applies its mind to the KUMAR contents of the complaint/police report, but also proceeds in the BANSAL manner as indicated in the subsequent provisions of Chapter XIV of Digitally signed the Criminal Procedure Code. by VIRENDER KUMAR BANSAL Date: 2023.12.09 17:34:01 +0530 CR no.184/23 Anil Dutt Sharma Vs. State Page 12/16

26. The Honorable Supreme Court in the case of Balveer Singh v. State of Rajasthan, (2016) 6 SCC 680, has held that:

"8. Sections 190 and 193 of the Code are in Chapter XIV. This Chapter contains the title "Conditions requisite for initiation of proceedings". Section 190 deals with cognizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empow­ ered to take cognizance "of any offence" under three circum­ stances mentioned therein. These three circumstances include taking of cognizance upon a Police report of such facts which may constitute an offence. It is trite law that even when Police report is filed stating that no offence is made out, the Magistrate can ignore the conclusion arrived at by the Investigating Officer and is competent to apply its independent mind to the facts emerging from the investigation and take cognizance of the case if it thinks that the facts emerging from the investigation do lead to prima facie view that commission of an offence is made out. In such a situation, the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of the case under Section 190(1)(a) though it is open for him to act under Section 200 or Section 202 as well {See Minu Kumari & Anr. v. State of Bihar & Ors., (2006) 4 SCC 359. Thus, when a complaint is received by the Magistrate under Section 190(1)(a) of the Act, the Magistrate is empowered to resort to procedure laid down in Section 200 or 202 of the Code and then take cognizance. If Police report is filed, he would take cognizance upon such a report, as provided under Section 190(1)(b) of the Code in the manner mentioned above as highlighted in the case of Minu Kumari."

27. The Honorable Supreme Court in the case of M/s. India Carat Pvt. Ltd. v. State of Karnataka and Anr., (1989)2 SCC 132, has held that:

"(16) The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) VIRENDER KUMAR of the Code even if the police report is to the effect that no case BANSAL is made out against the accused. The Magistrate can take into Digitally signed account the statements of the witnesses examined by the police by VIRENDER KUMAR BANSAL during the investigation and take cognizance of the offence Date: 2023.12.09 17:34:08 +0530 CR no.184/23 Anil Dutt Sharma Vs. State Page 13/16 complained of and order the issue of process to the accused.

Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.

28. The Honorable Supreme Court in the case of Nupur Talwar v. Central Bureau of Investigation, (2012) 11 SCC 465, has held that:-

"The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of an order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused"

29. The Hon'ble Supreme Court in the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117, has held that:-

VIRENDER "Magistrate can take cognizance of the offence, under KUMAR Section 190 (1) (b), notwithstanding the contrary opin- BANSAL ion of the police, expressed in the final report." Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.12.09

30. The Honorable Supreme Court in the case of Hemant 17:34:15 +0530 CR no.184/23 Anil Dutt Sharma Vs. State Page 14/16 Dhasmana v. Central Bureau of Investigation and Another reported in (2001) 7 SCC 536, has held that:-

"15. When the report is filed under the sub­section the Magis­ trate (in this case the Special Judge) has to deal with it by be­ stowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offences were also detected, the court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some per­ sons. But when the report is against the allegations contained in the complaint and concluded that no offence has been com­ mitted by any person, it is open to the court to accept the re­ port after hearing the complainant at whose behest the investi­ gation had commenced. If the court feels on a perusal of such a report that the alleged offences have in fact been committed by some persons the court has the power to ignore the con­ trary conclusions made by the investigating officer in the final report. Then it is open to the court to independently apply its mind to the facts emerging therefrom and it can even take cog­ nizance of the offences which appear to it to have been com­ mitted, in exercise of its power under Section 190(1)(b) of the Code."

31. In view of the law settled by the Hon'ble Supreme Court it is clear that Magistrate is not bound by the conclusion drawn by the police. The Magistrate has to apply its mind on the facts and evidence collected and accordingly take cognizance of the offence disclosed irrespective of the conclusion drawn by the investigating agency. In the present case also the Magistrate has applied its mind on the facts placed before him and considering all the facts decided to take cognizance of the offence disclosed.

32. Here as discussed above, there is sufficient evidence VIRENDER KUMAR BANSAL brought on record disclosing offence punishable under Section Digitally signed 420 IPC. As there is also threat extended, offence of criminal in-

by VIRENDER KUMAR BANSAL Date: 2023.12.09 17:34:23 +0530 timidation punishable under section 506 (1) IPC is also made out CR no.184/23 Anil Dutt Sharma Vs. State Page 15/16 and to that extent, I do not find any illegally in the order passed by the learned Trial Court. But the learned Trial Court has simul- taneously taken cognizance for offence punishable under Section 384 IPC, which is not made out in the facts and circumstances of the case and to that extent, the order of the Trial Court is set aside.

33. As offence disclosed from the charge sheet and cog- nizance of the offence taken Magistrate is punishable under sec- tion 420 IPC for which punishment prescribed is imprisonment for 7 years and shall also be liable to fine. There is no period of limitation prescribed for taking cognizance for offence punish- able under Section 420 IPC as per section 468 Cr.P.C. Therefore, there is no question of condoning the delay, hence, I am not dis- cussing the issue with respect to condonation of delay as argued by learned counsel for the revisionist. Revision petition is ac- cordingly disposed of.

34. Copy of the order along with Trial Court record be sent back. Digitally signed by VIRENDER

35. Revision file be considered to the record room VIRENDER KUMAR KUMAR BANSAL BANSAL Date:

2023.12.09 17:34:29 +0530 Announced in the open (V. K. BANSAL) court today i.e on Principal District & Sessions Judge, 9th, December, 2023 North East, Karkardooma Courts, Delhi.