Paul Oswal vs Govind Prasad Lath

Talukdar, J.—This rule is directed against an Order dated February 6, 1974, passed by Sri G.B. Ghosh, Additional Chief Presidency Magistrate, Calcutta, rejecting the accused Petitioners'' application for discharge u/s 253(2) of the Code of Criminal Procedure and for quashing the proceedings, being case No. C/749 of 1973, pending before the said learned Magistrate under Sections 386, 467 and 471 of the Indian Penal Code.

A petition of complaint was filed in the Court of the Additional Chief Presidency Magistrate, Calcutta, on November 21, 1973, by the complainant opposite party No. 1, Govind Prasad Lath, against four accused persons under Sections 386, 467, 471, 403 and 477A of the Indian Penal Code read with Section 120B of the Indian Penal Code. The prosecution case, inter alia, is that the complainant was appointed a distributor under the accused No. 2 Janak Raj Punni on a commission basis on June 14, 1966; that the accused No. 2 is the proprietor of Messrs J.R. Trading Company which was appointed as the sole selling agent in West Bengal of Messrs Vardhaman Spinning and General Mills Ltd. having its office st 171A Mahatma Gandhi Road, Calcutta and the accused No. 1 Prakash Chandra Sharma is the Accountant thereof; that in course of his business as the distributor under the accused No. 2, the complainant''s commission on the said account amounted to about Rs. 26,000 on March 31, 1973, but the same remained unpaid; that on March 29, 1973, when the complainant refused to dispose of a stock of cotton yarn approximately valued at Rs. 5,17,000 lying in the godown of the accused at No. 2 Digambar Jain Temple Road, Calcutta, in the black market, he was surrounded and under threat of violence and severe injuries, was forced to sign a blank voucher of Messrs Vardhaman Spinning and General Mills Ltd. purporting to be a receipt for Rs. 5,17,000 and two blank letter heads of the complainant; that the complainant, who came out after being assaulted, reported the matter to the Police and also informed the Bureau of Investigation under the Ministry of Finance, Government of West Bengal, about the misconduct and evasion of takes etc. on the part of the accused persons; that as a result thereof the department searched the office of the accused persons on April 7, 1973 and seized several documents including some books of accounts and other papers from different places; that the accused persons in pursuance of their conspiracy falsified and/or caused to be falsified books of accounts of Messrs Vardhaman Spinning and General Mills Ltd. by issuing bogus receipts from different parties on March 29, 1973 and false entries were made to implicate the complainant falsely in order to cause wrongful loss to him; that in collusion with each other the accused persons had falsified and/or forged or caused to falsify or forge the said blank voucher and letter-heads and the books of accounts and converted the voucher for Rs. 5,17,000 on the basis whereof a case was instituted against the complainant in the Ludhiana Court; that the complainant had already, moved the High Court at Chandigarh for quashing the said criminal proceeding and the matter is still pending; that the accused persons had committed offences punishable under Sections 386, 467, 471, 403 and 477A of the Indian Penal Code read with Section 120B of the Indian Penal Code; and that the complaint could not be made earlier in the expectation that the Police authority would move in the matter.

The learned Additional Chief Presidency Magistrate, Calcutta, examined the complainant and one Chandrabati Prasad on S.A. and by his order dated November 21, 1973, summoned the accused Nos. 1 and 2, Prakash Chandra Sharma and Janak Raj Punni, under Sections 386, 467 and 471 of the Indian Penal Code and issued warrants of arrest against the other two accused persons under the same sections. A search warrant, as prayed for, was also issued. The accused persons thereafter appeared and were released on bail. On February 11, 1973, an application was filed on behalf of the accused No. 4, Sri Paul Oswal for staying the proceedings pending before the learned Additional Chief Presidency Magistrate, Calcutta, till the disposal of the criminal case pending before the Ludhiana Court or, in the alternative, for discharging the accused persons u/s 253(2) of the Code of Criminal Procedure. In course of arguments, the prayer for staying the proceedings was given up and that for discharge only was pressed. Sri G.B. Ghosh, the Additional Chief Presidency Magistrate, Calcutta, ultimately by his order dated February 6, 1974, rejected the prayer for discharge for reasons mentioned therein. The said order was impugned and the present Rule was issued along with an order for interim stay of all further proceedings.

The submissions of Mr. Nalin Chandra Banerjee, Senior Advocate (with Messrs Jagadish Krishna Banerjee and Prabhjot Singh, Advocates), on behalf of the three accused Petitioners, have two dimensions. The first one is one of law, relating to procedure arising out of the absence of an order in writing u/s 196A of the Code of Criminal Procedure, consenting to the initiation of the proceedings and the second one is on merit, viz., that on the materials of the case the prosecution is unfounded and a continuance thereof will be an abuse of the process of the Court. Mr. Asoke Sen, Senior Advocate (with Messrs D.K. Dutt, N.K. Choudhury, Tapan Kumar Mitra, P.B. Chakraborty and S.P. Talukdar, Advocates), appearing on behalf of the opposite party No. 1 joined issue and contended that the point of law raised by Mr. Nalin Chandra Banerjee is untenable inasmuch as no such sanction is necessary because no cognizance was taken of any offence of criminal conspiracy to commit a non-cognizable offence and no process also was issued thereunder. Mr. Asoke Sen further submitted that the contentions based on merits are premature and the same can only be decided on proper materials at proper stage. Mr. Sankar Das Banerjee, Senior Advocate (with Messrs Shyam Sundar Paul and Sasanka Kumar Ghosh, Advocates), appearing on behalf of the opposite party No. 2, Darshan Kumar Oswal, supported the Rule submitting inter alia that because of the procedural defect the proceedings should be quashed at the earliest stage. The learned Advocates for the respective parties referred to several cases which will be referred to and considered in their proper context. Mr. Sumit Kumar Moitra, Advocate, appearing on behalf of the State, contended that quashing is an extra-ordinary proceeding and should not be ordinarily allowed at the earliest stage before the requisite materials are on the record. He, however, submitted that there are conflicting decisions on the necessity of a consent in writing to initiate such proceedings and he referred in this context to the case of Bhanwar Singh and Another Vs. State of Rajasthan, .

The first dimension of Mr. Nalin Chandra Banerjee''s submissions is one of procedure relating to a non-conformance to the mandatory provisions of Section 196A(2) of the Code of Criminal Procedure in view of the absence of the requisite order in writing consenting to the initiation of the proceedings. The steps of his reasoning in this context are that u/s 190(1) the Court at the outset takes cognizance of any offence upon receiving a complaint of facts constituting such offence or upon a report in writing of such facts made by any Police officer or upon information received from any person other than a Police officer or upon his own knowledge or suspicion that such offence has been committed; that the petition of complaint clearly disclosed a distinct offence of criminal conspiracy u/s 120B of the Indian Penal Code to commit various non-cognizable offences under Sections 286, 467, 471, 403 and 477A of the Indian Penal Code; that the learned Additional Chief Presidency Magistrate, Calcutta, when he took cognizance on November 21, 1973, after examining the complainant and his witness on S.A., did so on a complaint disclosing an offence of criminal conspiracy as mentioned above; that u/s 196A(2) of the Code of Criminal Procedure no Court shall take cognizance of the offence of a criminal conspiracy to commit non-cognizable offences unless the requisite authority, empowered in this behalf by the State Government, have by an order in writing consented to the initiation of the proceedings; and that such consent being non est, the entire proceedings, as initiated, are not maintainable in law. Mr. Sankar Das Banerjee, on behalf of the accused opposite party No. 2, supported the said submissions while Mr. Sumit Kumar Moitra, appearing on behalf of the State, submitted that the decisions on the point are conflicting and relied in this context on the case of Bhanwar Singh if Anr. v. State of Rajasthan Supra. Mr. Asoke Sen, appearing on behalf of the complainant opposite party No. 1, joined issue. While he did not dispute the proposition that for taking cognizance of an offence of criminal conspiracy to commit non-cognizable offences, there must be an order in writing by a competent authority consenting to the initiation of the proceedings, he contended emphatically that ho such consent in writing is necessary with regard to distinct non-cognizable offences committed in pursuance of the conspiracy. Mr. Sen further contended that the cloud raised on the point can be lifted by a reference to the provisions of the statute as well as to stare decisis. The steps of Mr. Sen''s reasoning are that the petition of "complaint disclosed not only the offence of criminal conspiracy but also distinct non-cognizable offences, requiring no such sanction; that the averments made in paras. 4, 5, 8, 9 and 10 bring to light distinct non-cognizable offences; that both in the cause-title as well as in the ultimate prayer, several non-cognizable offences have been stated as being read with Section 120B of the Indian Penal Code; that in order to attract the bar contained in Section 196A(2) of the Code of Criminal Procedure, the offence of criminal conspiracy alleged must relate to the commission of a non-cognizable offence and that as a distinct offence that the words used in Section 190(1) relating to cognizance of offences by Magistrates are that ''may take cognizance of any offence'' and not of all offences; that in this case the learned Additional Chief Presidency Magistrate, Calcutta, took no cognizance of any offence of criminal conspiracy to commit non cognizable offences but of several distinct non-cognizable offences only; and as such, there is no question of any non conformance to the mandatory provisions of Section 196A(2) of the Code of Criminal Procedure. In support of his contentions, Mr. Sen referred to the relevant provisions of the Statute and to several decision which will be presently considered.

For a proper decision of the point, a reference has to be made to the provisions of the Statute in the first instance. Section 196A of the Code of Criminal Procedure clearly provides at the cutest that

no Court shall take cognizance of the offence of criminal conspiracy punishable u/s 120B of the Indian Penal Code and then lays down the two different categories in sub Sections (1) and (2) as well as a proviso given thereunder relating to Section 195(4) of the Code of Criminal Procedure. In this case, we are neither concerned with Sub-section (1) nor with the proviso. The provisions of Sub-section (2) of Section 196A of the Code of Criminal Procedure are relevant and are as follows:

in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, unless the State Government or a Chief Presidency Magistrate or District Magistrate, empowered in this behalf by the State Government, has by order in writing consented to the initiation of the proceedings.

In this, case, however, we are concerned only with non-cognizable offences and therefore, with the first part of Sub-section (2) of Section 196A of the Code of Criminal Procedure. The aforesaid provisions clearly indicate that when there is an allegation of an offence of criminal conspiracy punishable u/s 120B of the Indian Penal Code, the Object whereof is to commit any non-cognizable offence, the Court shall not take cognizance thereof without an Order in writing by the requisite authority consenting to the initiation of the proceedings. It is significant that the words used in the Statute categorically refer to ''the offence of criminal conspiracy'' and not to other non-cognizable offences committed in pursuance of the conspiracy. The principles of intent and of meaning by which Statutes should be interpreted, land assurance to the above mentioned interpretation. Some meaning and effect must be given to the clear and categorical words used in the Statutes as reflecting the intention of the Legislature. The words of a Statute must, prima facie, be given their ordinary meaning. As was observed by Lord Sumner in the case of Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry AIR 1920 P.C. 181 (186) that

effect must be given if possible to all the words used, for the Legislature is deemed not to waste its words or to say anything in vain.

We respectfully agree with the same and hold accordingly that, in view of the clear provisions of the Statutes, the bar u/s 196A(2) of the Code of Criminal Procedure relates only to the offence of criminal conspiracy of the categories provided for in Sub-clause (a) or (b) thereof as a distinct offence committed in pursuance of the said conspiracy. The Court is prevented only from taking cognizance of an offence of criminal conspiracy which is clearly distinct from a separate and substantive offence of non-cognizable nature committed in pursuance of the conspiracy. As to the other facet of Mr. Banerjee''s submissions based on the provisions of Section 190(1) of the Code of Criminal Procedure, there appears to be a conflict of decisions. Mr. Asoke Sen referred to the case of Gopal Das Sindhi and Ors. v. State of Assam and Anr. AIR 1961 S.C. 986 (989) wherein S.J. Imam J. delivering the judgment of the Court observed that

we cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ''may'' in Section 190 to mean ''must''.

Mr. Nalin Chandra Banerjee referred to the case of Shri A.C. Aggarwal, Sub-divisional Magistrate, Delhi and Another Vs. Mst. Ram Kali, etc., wherein K.S. Hegde J. delivering the judgment of the Court observed that--

Under Section 190(1) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words ''may take cognizance'' in this context means ''must take cognizance''. He has no discretion in this matter, otherwise that section will be violative of Article 14.

There context of the observations, however, is different and without entering into the conflicting interpretations of the word ''may'' in Section 190(1) of the Code of Criminal Procedure and the various decisions of the Supreme Court thereupon, it may be observed that the learned Additional Chief Presidency Magistrate, Calcutta, in this case took cognizance of distinct non-cognizable offences committed in pursuance of a criminal conspiracy and not of an offence of criminal conspiracy to commit non-cognizable offences punishable u/s 120B of the Indian Penal Code, ruling out thereby the necessity of a consent in writing u/s 196A(2) of the Code of Criminal Procedure.

We may now turn to the decisions cited by the learned Advocates appearing on behalf of the different parties. Mr. Sen referred to the case of Madan Lal Vs. State of Punjab, . Shelat J. delivering the judgment of the Court observed that

the conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into. Such an offence, if actually committed, would be the subject-matter of a separate charge. If that offence does not require sanction though the offence of conspiracy does and sanction is not obtained, it would appear that the Court can proceed with the trial as to the substantive offence as if there was no charge of conspiracy.

In the case under consideration before the Supreme Court there was not only a charge for conspiracy u/s 120B of the Indian Penal Code but also two other separate charges for offences under Sections 409 and 477A alleged to have been committed in pursuance of the conspiracy and it was observed by Mr. Justice Shelat J. that

though the charge u/s 120B required sanction no such sanction was necessary in respect of the charge u/s 409. At the most, therefore, it can be argued that the Magistrate took illegal cognizance of the charge u/s 120B as Section 196-A(2) prohibits entertainment of certain kinds of complaints for conspiracy punishable u/s 120B without the required sanction. The absence of sanction does not prevent the Court from proceeding with the trial if the complaint also charges a co conspirator of the principal offence committed in pursuance of the conspiracy or for abetment by him of any such offence committed by one of the co conspirators u/s 109 of the Penal Code.

The Supreme Court ultimately held that--

In our view, the fact that sanction was not obtained in respect of the complaint u/s 120B did not vitiate the trial on the substantive charge u/s 409.

Mr. Sen also relied upon the several decisions referred to and approved of by the Supreme Court in the above-mentioned case, viz. those of Sukumar Chatterjee v. Mofizuddin Ahmed 25 C.W.N. 357, Syed Ywar Bakht v. Emperor C.W.N. 474, Ram Pat v. State (1962) 64 P.L.R. 519 and Nibaran Chandra Bhattacharyya and Another Vs. Emperor, . We respectfully agree with the principles laid down in the abovementioned cases and applying the same to the present case we hold that the absence of any consent in writing in this case has not resulted in any non-conformance to the provisions of Section 196A(2) of the Code of Criminal Procedure. Mr. Sumit Kumar Moitra, Advocate, who appeared on behalf of the State, submitted that conflicting views have been taken by the Supreme Court on the point and he referred to in this context to the case of Bhanwar Singh v. State of Rajasthan Supra. He, inter alia, contended that the decision in Bhanwar Singh''s case was a contrary one though arrived at on a consideration of Madan Lal''s case Supra referred to above. On an anxious consideration of the facts involved in Bhanwar Singh''s case and also the principles laid down therein, we hold that the submissions of Mr. Moitra are not tenable. The Supreme Court had referred to the earlier decision in Madan Lai''s case and it did not take ultimately a different view. Vaidialingam J. delivering the judgment of the Court observed that

the view of the various High Courts, to which we will refer presently, and with which view we agree, is that no sanction is necessary, u/s 196A(2) of the Code of Criminal Procedure, when the object of the conspiracy is to commit the offence of cheating (420 I.P.C.), but forgery of documents (467 I.P.C.) and similar non-cognizable offences are also committed as merely steps taken, by one or other of the accused, for the purpose of effecting the main object of the conspiracy. A trial, under such circumstances, for offences u/s 120B, read with Sections 467/471 and 420 of the Indian Penal Code, without obtaining sanction is neither illegal, nor invalid.

It proceeded to observe that

even if the object of conspiracy, viz., of cheating is sought to 3 be attained by resort to non-cognizable offences, as in the case before us, sanction u/s 196A of the Code is not necessary.

The ultimate findings arrived at by the Supreme Court are that,

therefore the trial of these accused, for offences u/s 120B read with Sections 467/471 and 429 I.P.C. and other allied offences, cannot be held to be illegal, on the ground that sanction u/s 196A(2) of the Code has not been obtained.

We respectfully agree with the said observations and we find that not only the facts of the said case are different but the principles again laid down do not lend assurance to the submissions made by Mr. Moitra that the principles of the latter case are in conflict with the earlier decision of the Supreme Court in Madan Lai''s case Supra. Mr. Nalin Chandra Banerjee who contended that the point of time at which the legality of the cognizance taken by the learned Magistrate is to be adjudged, is the time when cognizance is actually taken u/s 190 of the Code of Criminal Procedure and as such, there has been a non-conformance to Section 196A(2) of the Code, relied on the case of Govind Mehta Vs. State of Bihar, . On a consideration of the principles laid down in the said case, we do not, however, agree with Mr. Banerjee''s submissions inasmuch as the observations made in the above-mentioned decision are not, in any way, in conflict with the principles laid down in the earlier decisions. Vaidialingam J. delivering the judgment of the Court observed that--

Section 195 is in fact a limitation on the unfettered powers of a Magistrate to take cognizance u/s 190 of the Code. Therefore, at the stage when the Magistrate is taking cognizance u/s 190, he must examine the facts of the complaint before him and determine whether his power of taking cognizance u/s 190 has or has not been taken away by any of the Clauses (a) to (e) of Section 195(1). Therefore, it is needless to state that if there is a non-compliance with the provisions of Section 195, the Magistrate will have no jurisdiction to take cognizance of the offences enumerated therein.

We respectfully agree, but the point involved in the present case, however, is wholly different. True it is that the learned Magistrate must, before taking cognizance, examine the facts of the complaint and determine whether his power is barred in the, absence of any consent in writing as provided for under the respective provisions, of the Code and that, if it be so, the resultant non-compliance vitiates the cognizance and the trial. This proposition, however, is not disputed by the Mr. Sen and the principles laid down by the Supreme Court in the earlier decisions, referred to above, do not also run off at a tangent from the observations made in Govind Mehtas Supra case. The point ultimately involved in the present case is whether the conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into forming the subject-matter of a separate charge. The Supreme Court laid down in Madan Lal''s case Supra and the same was approved of in Bhanwar Singh''s case Supra that, if the distinct offence to commit which the conspiracy is entered into, does not require sanction though the offence of conspiracy does and sanction is not obtained, the Court nonetheless ''can proceed with the trial as to the substantive offence as if there was no charge of conspiracy''. The imprimatur of judicial decisions, therefore, lend assurance to the contentions of Mr. Asoke Sen. The first dimension of Mr. Nalin Chandra Banerjee''s submissions relating to the maintainability of the proceedings accordingly fails.

The other dimension of Mr. Banerjee''s submissions relates to merits and requires a consideration of facts. Such a consideration, however, would be premature at this stage in the absence of the requisite materials which are yet to forth come. Quashing is an extraordinary matter and should not be resorted to excepting in exceptional cases. A reference in this context may be made to the case of R.P. Kapur Vs. The State of Punjab, . P.B. Gajendragadkar J. (As his Lordship then was) observed therein that--

Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. The Supreme Court further held in the above-mentioned case that the internet jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.

On an anxious consideration of the facts and circumstances and also the stage reached, it is difficult for us to hold either way and we keep, accordingly, the same open for being decided by the learned trying Magistrate in accordance with law and on the materials that may be adduced by the respective parties. We make it quite clear, however, that we make no observations as to the merits of the case. The second dimension of the submissions laid down by Mr. Nalin Chandra Banerjee accordingly fails as being premature.

In the result, the Rule is discharged; the order dated February 6, 1974, passed by Sri G.B. Ghosh, Additional Chief Presidency Magistrate, Calcutta, in case No. C/749 of 1973 under Sections 386, 467 and 471 of the Indian Penal Code is hereby upheld; and we direct that the case shall go back to the Court below for being tried in accordance with law and expeditiously by the learned Additional Chief Presidency Magistrate, Calcutta, from the stage reached before the present Rule was issued.

The records shall go down as early as possible.

A.N. Banerjee J.

I agree.