Calcutta High Court
Raghubir Saran Jain And Anr. vs State And Anr. on 28 June, 1995
Equivalent citations: (1995)2CALLT445(HC), 99CWN1150
JUDGMENT Arun Kumar Dutta, J.
1. By this Revisional Application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as Code) the two accused Petitioners Raghubir Saran Jain and Ashok Kr. Jain (hereinafter referred to as Petitioners) have prayed the Court for quashing of the relevant Proceedings, being G.R. Case No. 3574 of 1991, arising out of Case Reference No. CBySCB/RC-12/89 dated 26th September 1989, now pending before the Metropolitan Magistrate, 12th Court at Calcutta, including the Order dated 9th November, 1991 passed therein by the Chief Metropolitan Magistrate, Calcutta, '(hereinafter referred to as Magistrate) for the reasons stated and on the grounds made out therein. During the hearing of the application the learned Senior Advocate for the Petitioner, Mr. Dilip Kr. Dutta, had, however, urged the lone ground that it was incompetent for the learned Magistrate, to take cognizance of the alleged offence by his impugned Order dated 9th November, 1991, only on the basis of the Charge-Sheet, in the absence of the documents required to be furnished to the Court under sub-section (5) of Section 173 of the Code, as he did.
2. The Petitioners, along with others, have been prosecuted for having allegedly committeed offence punishable under Sections 420/468/47, Indian Penal Code on the allegations made in the F.I.R. alleging, inter-alia, that in a number of cases, some importers have submitted Guarantees from Federal Bank Ltd. for release of imported goods as per orders of the Hon'ble High Court at Calcutta. Since the cases are pending before the Court, the Bank Guarantees are required to be kept valid for realisation of Government dues. It has been alleged that since, a large number of Bank Guarantees were submitted to Customs Authorities, officials of Federal Bank Ltd. made enquiries about issuance of a large number of Bank Guarantees from the Bank. On verification, they could conclusively say that 45 Bank Guarantees have been used, and those Bank Guarantees were under purported signatures of Bank Officials. Out of 45 Bank Guarantees, M/s. Cosmo Steel (P) Ltd. submitted 44 forged Bank Guarantees.
3. The Investigating Agency after completion of investigation had submitted Charge Sheet against the four accused persons named therein, including the present two Petitioners, which was received by the learned Magistrate on 4-10-91, who had taken cognizance of the alleged offence after seeing the F.I.R., containing 27 sheets, which was perused earlier, by passing the impugned order dated 9th November, 1991. There is nothing in the orders dated 4.10.91 and 9.11.91 recorded by the learned Magistrate to indicate that the documents referred to in sub-section (5) of Section 173 of the Code were forwarded to the Court, along with the Charge-Sheet/Police Report (under Section 173(2) of the Code), which were looked into by him for taking cognizance of the alleged offence. It would, percomfra, clearly appear from paragraphs 11 and 14 of the Affidavit-in Opposition filed on behalf of the Opposite Party No. 2 to the Supplementary Affidavit filed by the Petitioners that the Charge Sheet was placed before the learned Magistrate, who, on perusal of the same, was satisfied and took cognizance of the alleged offence and that the documents (under Section 173(5) of the Code) were not placed along with the Charge Sheet, which were kept by the Officer for preparation of copies of statements and documents to furnish the same to the accused in terms of the provisions of Section 173(7) of the Code. Admittedly, therefore, the Police Report/Charge Sheet under Section 173(2) of the Code was not accompanied by the documents required to be forwarded to the Magistrate under Section 173(5) of the Code. The question which would at once emerge for consideration is, whether the learned Magistrate was justified in taking cognizance of the alleged offence in the absence of the documents under Sections 173(5) of the Code. In order to answer the said question let us examine the relevant provisions of the Code in that context.
4. Section 173(2) provides that on completion of investigation the police officer investigating into a cognizable offence shall submit a report in the form prescribed by the State Government and stating therein (a) the names of the parties, (b) the nature of information; (c) the names of the persons who appear to be acquainted with the circumstances of the case, (d) whether any offence appears to have been committed, and, if so, by whom, (e) whether the accused has been arrested, (f) whether he has been released on his bond and, if so, whether with or without sureties and (g) whether he has been forwarded in custody under Section 170. Sub-section (5) of Section 173 makes it obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnessse at the trial.
5. The Supreme Court in Satya Narain Musadi and Ors., v. State of Bihar, 1980 Cr LJ 227 has observed that on the introduction of Section 173 in its form in the Code the police officer investigating into a cognizable offence is under a statutory obligation to submit along with his report under Section 173(2) documents purporting to furnish evidence collected in the course of the investigation and the statements of the witnesses, and the Court before proceeding into the case is under a duty to inquire whether the accused has been furnished with copies of all relevant documents received under Section 173 by the Court, and the entire complexion of what should normally be styled as report submitted under Section 173(2) of the Code has undergone a change. The Supreme Court has held therein that the report, as envisaged by Section 173(2), has to be accompanied as required by Section 173(5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by Section 173(2) from its accompaniments which are required to be submitted under Section 173(5). The whole of it is submitted as a report to the Court. It follows that the Court can look at the report in prescribed form, along with its accompaniments, for taking cognizance of the offence. The Supreme Court having thus held that the Police Report under Section 173(2) and its accompaniments under Section 173(5) of the Code submitted to the Court, the whole of it being a report submitted to the Court, the part of it, i.e., a report under Section 173(2) minus, the accompaniments under Section 173(5), cannot clearly be held to be a Police Report.
6. Following the above decision of the Supremo Court, the Andhra Pradesh High Court in Matchumari China Venkatareddy and Ors. v. State of Andhra Pradesh, 1994 Cr LJ 257 has also observed that it is made so clear from, the above verdict of the Supreme Court which is still holding the field and which is the law of the land under Article 141 of the Constitution of India that police report (charge-sheet) is one accompanied by the copies thereof to be served on the accused, and that mere filing of a police report under Section 173(2) Cr. P.C. without its accompaniments under Section 173(5) Cr. P.C. "is not a police report at ail." The Andhra Pradesh High Court in the aforesaid decision has thus held, inter-alia, as follows :-
(a) That the police report (charge-sheet) under Section 173(2) Cr, P.C. is not complete unless it is accompanied by the material papers (statements etc.), as contemplated under Section 173(5) Cr. P.C.
(b) The judicial act commences when the police report (charge-sheet) is filed in complete form, both complying with the provisions con- tained under Sections 173(2) and 173(5), Cr. P.C. and it is taken on the file of the court and perused by the Court for taking a decision under Section 190(1) Cr. P.C.
7. A learned single Judge of our Court in Satyanarain Pal v. State of West Bengal, 96 CWN 606 has also held that since the documents and statements [under Section 173(5) of the Code] are parts of the police report they are to be placed, along with such report before the Magistrate/Judge at the time of taking cognizance by them, and the learned Magistrate/Judge before taking cognizance must look into the said report and also into the documents. A similar view has also been recently taken by another learned single Judge of our Court in his Judgment and Order dated 5th May, 1995 in Criminal Revision Case No. 26 of 1995, the record of which had been requisitioned during the hearing at the instance of the Petitioners, There is nothing to depart from the aforesaid views taken by the aforesaid two learned Judges of our Court on the aforesaid point following the decision of the Supreme Court in the case of Satya Narain Musadi and Ors. v. State of Bihar (supra).
8. The learned Advocate for the Opposite Party No. 2, Mr, Amit Talukdar, on the other hand, had referred me to Paragraph 44 of the decision of the Supreme Court in State of West Bengal and Anr. v. Md. Khalid and Ors. etc., etc., 1995 C Cr LR (SC) 52 to state the meaning of "taking cognizance." The Supreme Court has observed therein that Section 190 of the Code talks of cognizance of offences by Magistrates. "This expression has not been denned in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word "cognizance" indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings, rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."
9. The learned Advocate had also referred to Paragraph 25 of the said decision wherein the Supreme Court has observed that when a police report is filed cognizance is almost automatic. In fact, in A.C. Aggarwal, SubDivisional Magistrate, Delhi v. Master Ram Kali, AIR 1968 SC at page the Court held when Section 190(1)(b) of the Code uses the words "may take cognizance" it means, must take cognizance, and that it has no discretion in the matter. In law, no reasons need be given for taking cognizance under Section 193. But in order to enable a Magistrate to take cognizance on a Police Report under Section 173(2) of the Code, the same has to be a complete report thereunder, accompanied by the accompaniments under sub-section(5) of Section 173 of the Code so that he (Magistrate) may apply his judicial mind for the purpose after looking to the Police Report and the materials filed therewith in terms of the decision of the Supreme Court in State of Maharashtra v. Sharad Chandra Vinayak Dongre and Ors., AIR 1955 SC 231. It will also be pertinent to refer to the decision of Rajasthan High Court in. State v. Pukhia, , followed In Re : Raju Thevan, AIR 1966 Mad 349, and State of Bihar v. Sakaldip Singh, , that the term taking "cognizance" means a judicial action permitted by the Code taken with a view to eventual prosecution preliminary to the commncement of the enquiry or trial. It has been held by the Supreme Court in H.S. Bains v. State that a Magistrate after receipt of Police Report under Section 173 of the Code may as well decide that there is no sufficient ground for proceeding further, and drop action, or he may take cognizance of the offence under Section 190(1)(b) of the Cods on the basis of the Police Report. The Supreme Court in the aforesaid decision in State of Maharahrtra v. Sharad Ch. Vinayak Dongre and Ors. (supra) has further observed that the purpose of the submission of the police report with the details is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has beep, made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of -Criminal Procedure. Section 190(1)(b), Cr. P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. In view of the aforesaid decisions of the Supreme Court, a Magistrate may or may not take cognizance of an offence upon a police report and the materials filed therewith on due application of his judicial mind.
10. The learned Advocate for the Opposite Party No. 2 had also referred to Paragraph-10 of the decision of the Supreme Court in Satya Narain Musadi and Ors. v. State of Bihar, 1980 Cr LJ 227 wherein it has been observed that "if the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial. They would all be matters of evidence; and Section 11 does not require the report to be or to contain the evidence in support of the charge, its function being merely to afford a basis for enabling the Magistrate to take cognizance of the case.
11. Basing on the aforesaid observation of the Supreme Court, the learned Advocate for the Opposite Party No. 2 sought to submit that the learned Chief Metropolitan Magistrate was not unjustified in taking cognizance of the alleged offence on the basis of the Police report submitted in the relevant case under Section 173(2) of the Code. But to that I would at once note with a minute of dissent that the aforesaid observation had been made by the Supreme Court with reference to a report under Section 11 of the Essential Commodities Act, 1955, which report is not required to be accompanied by any document, as required in the case of a Police Report under section, 173(5) of the Code. The question of looking at documents in connection with a report under Section 11 of the Essential Commodities Act could not conceivably arise as such.
12. In view of the decision of the Supreme Court in Satya Narain Musadi & Others (supra), a police report under Section 173(2), unaccompanied by the documents under Section 173(5) of the Code, cannot be said to be a Police Report in the eye of law, being an incomplete report, as already indicated above. A Magistrate would be incompetent to take cognizance of an offence on such a Police Report as he would not be in a position to look to the documents, which are required to be accompanied by it, for the purpose of taking cognizance. As already noted above, the Police Report submitted in the relevant case before the learned Magistrate, admittedly, was not accompanied by the documents under Section 173(5) of the Code. The learned Chief Metropolitan Magistrate, Calcutta, was not, therefore, justified in taking cognizance of the alleged offence on the basis of such incomplete report. The cognizance taken by him by his impugned order dated 9th November, 1991, cannot thus be said to be according to law, and is liable to be quashed.
13. In the result, the impugned order passed by the learned Chief Metrapolitan Magistrate, Calcutta, dated 9th November, 1991 be hereby set aside. Let the matter be sent back to him for consideration as to whether cognizance of the alleged offence should be taken by him or not upon due application of his judicial mind according to the law on, the basis of the relevant Police Report under Section 173(2) Cr. P.C. and the accompaniments under sub-section(5) of Section 173 of the Code, in the light of the discussions above; and for disposal of the relevant case according 1o law.
14. The Investigating Agency is also directed to submit all relevant documents/Papers, as contemplated under sub-section (5) of Section 173 of the Code before the learned Magistrate, if not already submitted, so as to enable the latter to act in terms of this Order.
15. Since the matter has already been long delayed in view of the present proceedings before this Court, the learned Chief Metropolitan Magistrate, Calcutta, shall take up the matter for the aforesaid purpose, as early as possible, preferably within 3 weeks from the receipt of the lower court record and the copy of this order. The Investigating Agency shall also submit all relevant documents/papers under Section 173(5) of the Code before the learned Magistrate, if not already submitted, within the aforesaid period for enabling the latter to comply with this order. If the learned Magistrate takes, cognizance of the alleged offence, he shall also take effective steps for expeditious trial and disposal of the case.
16. The Revisional application be, accordingly, disposed of. Interim Stay, if any, stands vacated.
Let a copy of this order, as also the lower court records, go down to the court below forthwith.