Rabi Narayan Mohanty and Others vs The State and Another

Joytosh Banerjee, J.—This revisional application is directed against order dated 5.2.97 passed by the learned S.D.J.M., Alipore, 24 Parganas(S) in c.g.r. case No. 1479/95 arising out of Section UI (Tolrygunge) P.S. Case No. 185/95 and the order impugned here is the order dated 5.2.97 in such proceeding passed by learned S.D.J.M., whereby he took cognizance of the case. Shortly, put the facts and circumstances leading to the instant proceeding are as follows:

On 8th May, 1995, the respondent No. 2 herein, lodged a written complaint with the O.C. of Tollygunge P.S. against the petitioners and such complaint related to a sum of Rs. 1,00,000/- (Rupees one lakh), which accused No. 1 wanted from one S.K. Jhunjhunwala and since the said S.K. Jhunjhunwala had no fund for payment of such a loan, according to the further allegations he introduced accused No. 1 with the de facto complainant and requested him to pay that amount to accused No. 1 as a loan accommodation and, accordingly, the de facto complainant with the said S.K. Jhunjhunwala went to the office of accused persons and paid that amount in cash to accused No. 1 who granted a signed receipt, on a further allegation that on 8.5.95, the de facto complainant with his brother-in-law, the said S.K. Jhunjhunwala had been to the office of the accused for the purpose of getting back that money. It is the specific allegation that at that time the accused No. 1 took away the receipt from them and refused to pay back the money.

The said petition of complaint was filed before the learned Chief Judicial Magistrate, Alipore who directed the police to investigate the same. Thereafter, police submitted the charge-sheet and the learned S.D.J.M., Alipore, 24 Parganas (S) took the cognizance through his order dated 5.2.97 and the order impugned reads as follows:

Received challan along with C.D. statement as mentioned in 173 Cr. P.C. under Sections 120B/420 I.P.C.. against the accused Nos. 1 and 2 who have been shown absconding in this challan. Perused the C.D. Cognizance taken I/O prayed for process against the accused Nos. 1 and 2. Issue process W/A against the accused Nos. 1 and 2, 13.5.97 for copy & E.R.

Now, both the accused persons have come up before this court challenging such order mainly on the ground that the allegations raised in the instant case regarding advancement of loan and failure to repay the same could not in any way be said to be any of the ingredients of Section 415 of the Indian Penal Code making the commission of the act punishable u/s 420 of the said Code. All those alleged acts might give rise to a civil dispute but these fail to prima facie establish any offence punishable u/s 420 I.P.C. and the learned S.D.J.M., Alipore took the cognizance of the offence illegally.

I have heard Mr. Sekhar Basu for the petitioners and Mr. Soumen Kumar Ghosh for the respondent No. 2 and Additional Public Prosecutor Mr. Sudipto Moitra for the State. The learned Advocate for the petitioner has wanted to challenge the cognizance taken here on three fold reasons. It is submitted that the complaint does not disclose the basic ingredient of the offence of cheating, namely, false representation and they would be more evident from the allegation that for the money in question taken as a loan, the accused also granted a receipt. This fact alone at least would got to show that when the money was taken, the accused had no intention to defraud or cheat the de facto complainant. Secondly, it is submitted that from the whole allegations it would be evident that transaction in question was nothing but a commercial transaction and the same cannot come within the mischief of cheating. Thirdly, it is contended that the way, the Magistrate took cognizance is not in accordance with law and in this respect my attention has been drawn to Section 190(b) of Cr.P.C. which provides that the Magistrate may take cognizance of any offence upon a police report of such facts. The learned Lawyers appearing for the O.P., on the other hand has pointed out that the petition of complaint which in the instant case has been treated as FIR under the orders of a competent Magistrate, has lost its significance after the police on completion of the investigation submitted charge-sheet. They have argued that the colour of the case has been changed after the police, on investigation submitted the charge-sheet against the petitioners. Now, it cannot be said that the petition of complaint which has been treated as FIR does not disclose any offence or that the learned Magistrate passed an erroneous order u/s 156(3) of the Code of Criminal Procedure. Their contention is that for the purpose of quashing the proceeding before the learned Magistrate, the petitioners can only argue that the charge-sheet thus filed by the police does not disclose any offence. But, that is not the case here. It is also argued that the petitioners have chosen a wrong forum as they could place the argument canvassed before this Court at the time of consideration of charge.

Regarding the first objection raised from the side of the petitioner, it is admitted position here that the police started investigation of the case on the basis of a petition of complaint. It has been sent to the police for the purpose of investigation by the learned Magistrate and the police on completion of such investigation submitted the charge-sheet against the petitioners under Sections 120B/420I.P.C. So it can be said that the petition of complainant on the basis of which the police started investigation of the case under the orders of the competent Magistrate has taken the place of the FIR by which a person aggrieved may set the Criminal Law in motion. It was earliest report which was sent to the Police Officer with a view to his taking action and on the basis of which the investigation commenced.

It is now well-settled that where the allegation set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction u/s 482 of the Code to quash the order passed by the Magistrate taking cognizance of the offence. Since admitted position in this case is that the police on completion of the investigation had already submitted the charge-sheet on the basis of which the learned Magistrate took cognizance of the offence, u/s 190(b) of Cr.P.C, the petitioners could have challenged the cognizance by alleging that the Magistrate took the cognizance in a case where the charge-sheet failed to disclose any offence but that is not the allegation here. In the instant case, the petitioners want to allege that the petition of complaint failed to disclose any offence and, therefore, the cognizance taken by the learned Magistrate is bad in law. But, in my considered opinion, when the police on investigation submitted the charge-sheet and when the charge-sheet thus submitted is the very basis of the cognizance taken by the Magistrate concerned, it would be futile for the petitioners to allege here that the petition of complaint which was treated as FIR in the case, by the police, failed to disclose any offence punishable u/s 420 IPC. In the case of Dr. Saroda Prosad Sinha vs. State of Bihar, 1977(1) SCC 505, the Apex Court has also clearly laid down that this court can quash the proceeding where the allegations set out in the complaint or charge-sheet did not constitute any offence. Since charge-sheet has already been submitted, the question of quashing the cognizance would arise if such charge-sheet failed to contain the allegations constituting an offence punishable under Sections 420/120B IPC. But, I have already pointed out that the cognizance in the instant case has not been challenged on the assertion that the charge-sheet failed to contain such allegation. In this connection, it is to be noted that the learned Counsel for the petitioners has relied on a decision of this court in CRR No. 1347/99 reported in (2) 2000(3) All India Criminal Law Reporter 392, Murari Mohan Kejriwal & Ors. vs. State of West Bengal. It is a decision given by a learned Single Judge of this Court in a case where the petitioner approached this court for quashing the proceeding. There Additional Chief Judicial Magistrate, Sealdah sent one application filed before him to the Police Station u/s 156(3) for taking an appropriate action. In that case, the learned Judge relied on the case of R.P. Kapur vs. State of Punjab reported in AIR 1960 SC 866, and noted that the Apex Court in such decision delineated the grounds upon the basis of which a Criminal proceeding could be quashed at an initial stage and those were as follows:

(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the Criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(ii) Where the allegations in the FIR or the complainant, even if they are taken at their face value and accepted in their entirely do not constitute the offence as alleged.

(iii) Where the allegations made against the accused person do constitute an offence as alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. But, it has been clearly laid down by the Apex Court in that case that in exercising its jurisdiction u/s 561-A (in the old Code), the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. I find in this case, the petitioner has come before this court to challenge the cognizance taken on the basis of the charge-sheet submitted by the police. So it cannot be said for a moment that the petitioner in the instant case has come up before this court for quashing the proceeding at the very initial stage. The learned Counsel has also wanted to rely on the judgement of G. Sagar Suri & Anr. v. State of U.P. & Ors., Judgement Today 2000(1) SC 360. In that case, the Apex Court has noted that the said Court laid down certain principles on the basis of which the High Court is to exercise its jurisdiction u/s 482 of the Code and such jurisdiction under that section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of Justice. It has noted that in State of Karnataka Vs. L. Muniswamy and Others, , the Apex Court held that in the exercise of the wholesome power u/s 482 of the Code, High Court was entitled to quash a proceeding if it came to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of Justice require that the proceedings were to be quashed. It has refer-ed another decision of the said court in Kurukshetra University & Anr. vs. State of Haryana, AIR 1977 SC 2229, wherein the Hon''ble Apex Court held that the inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whom or caprice and that statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. In the aforesaid case, the Apex Court allowed an appeal against the order passed by the High Court dis-missing an application of the appellants filed u/s 482 Cr.PC and quash the Criminal proceeding pending before a court of Magistrate of Gaziabad. In the aforesaid case before lodging of the FIR for offence under Sections 406/420 IPC, the complainant had already instituted a complaint u/s 138 of the Negotiable Instruments Act when for the purpose of repayment of loan, the accused issued two cheques towards principal and interest and the cheques were dishonoured when presented for payment. In the subsequent FIR for offence under Sections 406/420IPC, the complainant raised the allegation against eight accused persons alleging that accused Nos. 2 to 8 came to the office of the complainant Finance Company and wanted loan for M/s. Ganga Automobiles Ltd. for Rs. 50,00,000/-. In that case after considering the whole facts and circumstances, the Hon''ble Apex Court observed as follows:

A Criminal complaint u/s 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence u/s 138 is proved against them. In any case, there is no occasion, for the complaint to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed.

But, in this present case, there is nothing to show that after the police on proper investigation submitted the charge-sheet under Sections 420/120B of the I.P.C. against the petitioners, there would be an abuse of the process of law if the proceeding on the basis of the charge-sheet is allowed to be continued. Before I part with the matter in issue I should also note down here that the learned Counsel for the petitioner has also referred to a Full Bench case of the High Court in A.K. Roy Vs. State of West Bengal, (V 49 C 40), in support of this main contention that the cognizance taken here is bad in law. But, on going through the said Full Bench decision carefully I find that there, this Court has laid down that for the purpose of deciding whether cognizance of an offence should be taken, the Magistrate can look into the materials contained in the case diary and obtained during investigation, including statements recorded u/s 161 Cr. PC and if satisfied that there is a prima facie case against one or more accused he may issue process. So the aforesaid decision cannot be helpful for the petitioner in connection with argument advanced, namely, that the petition of complaint which was treated as FIR failed to disclose an offence punishable u/s 420 IPC.

Regarding the next point urged, that is dispute involved in the instant proceeding is essentially of civil nature, which has been given a cloak of Criminal offence, it should be pointed out very clearly that after the submission of charge-sheet by the police on completion of the investigation it cannot be said that there is no offence involved here and only a civil dispute has been given the cloak of a Criminal offence. I have already pointed out that the petitioner has not challenged the cognizance taken here on the ground that the charge-sheet fails to disclose any offence. Therefore, I do not find anything in the aforesaid argument which needs serious consideration from this court.

The last point raised by the learned Counsel for the petitioners is that the case diary could not be looked into by the learned Magistrate while taking cognizance of the offence and for this purpose reliance has been placed on a decision of this court by a Single Judge reported in AIR 1962 Calcutta p. 135. On going through the said decision given in Suraj Kumar Shaw v. State of West Bengal, I find that it was contended on behalf of the revisionist petitioner that the cognizance of the offence was not taken by the procedure which need be followed while taking the cognizance u/s 190(l)(b) of the Criminal Procedure Code as in the order taking cognizance passed by the Chief Metropolitan Magistrate, Calcutta there was no indication that the statement of witness recorded u/s 161 of the Criminal Procedure Code and all documents or relevant extracts thereof on which the prosecution proposed to rely and which in terms of Section 173(5) of the Criminal Procedure Code formed part of the charge-sheet was looked into. On the other hand, the learned Public Prosecutor submitted before the Court that statements and documents mentioned in Section 173(5) of the Criminal Procedure Code was not an indispensible part of the charge-sheet and, therefore, there was no illegality in the matter of taking cognizance of the offence if the learned Magistrate did not look into the aforesaid statement and documents while taking cognizance. The learned Judge in that case on consideration of the facts and circumstances found that the Magistrate who took the cognizance had before him, the challan and the case diary at the time of taking such cognizance but no material u/s 173(5) Criminal Procedure Code, that is to say, the documents or relevant extracts thereof on which the prosecution proposed to rely and the statement recorded u/s 161 of all the persons whom the prosecution proposed to examine as its witness. So the Court held that the cognizance taken there was not done in accordance with law. On this finding the Court quashed the proceeding and sent back the case to the court below with a direction to proceed with the matter in accordance with law. Before I proceed further I must point out that in the instant case from the order dated 5.2.97 (the order impugned) I find that at the time of taking cognizance, the learned S.D.J.M.. Alipore. 24-Parganas (S) not only had the challan and C.D. with him, but he also had the statements as required u/s 173. Obviously, by statements, the learned Magistrate meant the statements recorded u/s 161 of all persons whom the prosecution proposed to examine as its witnesses as required u/s 173(5)(b) of Cr. PC. In the instant case, the learned Magistrate took cognizance of the offence u/s 190(b) Cr. PC, that is to say upon a police report of such facts. The expression ''Police Report'' has been defined in Section 2(r) of the Code to mean a report forwarded by a Police Officer to a Magistrate u/s 173(2) of the Code. Then what is required under the provisions of Cr. PC is that if the cognizance of the offence is taken u/s 190(B) of Cr. PC, it must be on the basis of a police report and such police report as per the definition means a report forwarded by a Police Officer to a Magistrate under sub-section (2) of Section 173 of Cr. PC. The expression of Taking Cognizance'' u/s 190, merely, means'' judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Taking cognizance does hot involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, apply his mind to the suspected commission of an offence. Now in the reported case relied on, the learned Judge has observed that statement of witnesses examined by the police and recorded u/s 161 must not find place in the case diary since they are governed by Section 161 and Section 162 of the Cr. PC. In this respect, the learned Judge noted the decision reported in (8)31 CWN 940. In that case, it was decided that no statement could be said to be recorded u/s 172 so as to be a privileged one. But, that case does not support the view expressed by the learned Judge that statements recorded u/s 161 Cr. PC. Could not be the part of the case diary. No doubt, Section 172 lays down that every Police Officer making an investigation under this Chapter (Chapter-XII) is required to enter his proceedings in the investigation in the diary day by day, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and statement of the circumstances ascertained through his investigation. But, since examination of the witnesses and recording their statement u/s 161 is the part of the investigation under Chapter-XII of the Criminal Procedure Code and diary is required to record the day to day proceeding of such investigation, in my considered opinion, if such statements are kept with such diary, the investigation thus made and recorded in the diary cannot be said to be vitiated for such reason. Even the learned Judge in his reported judgement at Paragraph 20 has noted the following observation :

It is true that the common practice is to keep the statement of witnesses as also the accused recorded u/s 161 of the Criminal Procedure Code in the case diary itself

I am to add here that there is no expressed bar in the Code in this respect. Moreover, if the statements recorded u/s 161 Cr. PC. are kept with the case diary, that does not mean that those statements are made part of the case diary. What is intended to be recorded u/s 172 is what the Investigation Officer did, the places where he went, the people he visited, what he saw etc. The diary containing those particulars would be a privileged one, copy of which cannot be supplied to the accused. But, since recording of statements of different witnesses is done in connection with the investigation and the diary of the proceeding which is commonly known as ease diary is kept for the purpose of investigation of the particular case, there is no harm if the statements so recorded are kept with such diary. In the instant case, the circumstances are different from the aforesaid reported case of this court, on which the learned Counsel for the petitioners placed his reliance, in support of the above argument. In that case, at the time of taking cognizance before the Chief Metropolitan Magistrate, the case diary and the charge-sheet known as challan were placed. But, in the instant case, order impugned, as I have already observed goes to indicate that at the time of taking cognizance challan along with C.D. and the statements were placed before the learned Magistrate. Learned Magistrate prior to the cognizance perused the C.D. Obviously, this goes to show that the learned Magistrate at the time of taking cognizance while perusing the C.D., also perused the statements, as mentioned is Section 173(5) of Cr. P.C

In the light of what is stated above, the following positions emerged : (1) after the completion of investigation and submission of charge-sheet, it is not open to the petitioners to challenge the cognizance on the ground that the petition of complaint which was treated as FIR in the case did not disclose any offence, specially when there is no allegation that the charge-sheet failed to disclose any offence; (2) the High Court is to exercise its jurisdiction u/s 482 of the Code sparingly with circumspection and in the rarest of the rare cases : (3) u/s 190(b), a Magistrate can take cognizance upon a police report meaning thereby the report submitted by a Police Officer u/s 173(2) of the Code as the expression "Taking Cognizance" in Section 190, merely, means judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. In the result, the instant revision must fail. Accordingly, the same is dismissed. No costs.