R. G. Brealey v. State of West Bengal — 1996 DIGILAW 325 (CAL)

JUDGMENT A.B.Mukherjee, J.: Seven revisional applications being application No. 829/96 to 835/96(both inclusive) arising out of G.R. cases being 191/94, 320/93, 322/93, 324/93, 399/94, 400/94 and 1007/94 respectively, pending before the Ld.' S.D.J.M., Chandernagar have been instituted under s. 482 Cr.P.C. with a view to quash the said proceedings. 1. Since the parties involved the facts as also the principles of law are exactly the same, all the revisional applications have been heard together and this judgement shall govern all the revisional applications. 2. For the purpose of disposing of the revisional applications, the facts constituting the offence need not be stated in details since in course of the hearing of the revisional application the petitioner relied on only one ground, namely, ground no.2, dealing with the taking of cognizance by the Ld. Magistrate and reply given by the Ld. PP was also confined to that aspect alone. 3. In short the case is that the petitioner in all the revisional applications is the Chairman of three Companies, namely, The Samnuggur Jute Factory, The Victoria Jute Company and The Angus Company Limited, owing to the recession of the Jute Industry the Companies were running at heavy loss since 1982. The Companies were being managed by Mehtas. There /were arrears of provident Fund, Employees State Insurance, Jute Tax, Sales Tax and other statutory dues. They were also heavily indebted to the financial institutions. In fact, the Companies were sick and were facing closure. There was also labour unrest and ultimately at times there was also lock-outs in the Companies. There was also order of winding up at the instance of creditors which was however stayed on appeals preferred by Unions of Workers. 4. On 27.9.88 the petitioner co-opted as Non-Executive Chairman of the Company pursuant to entering into Memoranda of Understanding for acquisition of the majority of Indian shares of the Companies after requisite permission was granted by Reserve Bank of India on 13.5.89 and 13.6.89. But due to various litigation and restraint orders of Court, the petitioner could not acquire the shares till 1991 when he succeeded to acquire some of the shares held by Bhalotia group. Regarding the Mehta group shares, the same could not be acquired by the petitioner yet the petitioner was humiliated by Foreign Exchange officials and even put under arrest but he was discharged by the Ld. Regarding the Mehta group shares, the same could not be acquired by the petitioner yet the petitioner was humiliated by Foreign Exchange officials and even put under arrest but he was discharged by the Ld. Chief Metropolitan Magistrate, Calcutta by order dated 4.3.92 till he was being threatened by top officials of the FERA Administration. In February, 1994, petitioner's representative Mr. Tom Vigors, a British national, was whisked by Enforcement officials after he left Writers' Building, Calcutta attending a meeting convened by the Hon'ble Labour Minister of the West Bengal Government due to a mistaken identity when he was confused with the present petitioner. The effect of the petitioner to acquire Indian shares with a view to re-juvinate the Companies proved ineffective due to various litigations and he could stay in India only for very few days in between 1992 and 1994. The petitioner being Non-Executive Chairman was never in charge of or responsible to the Company or its subsidiaries in the conduct of day to day business. He was not a signatory to any of the bank accounts of the Company in India. He has not received any fees or expenses for attending the Board Meetings. The Company and subsidiaries are managed by managing/Executive Director and other managerial team who are responsible for the conduct of day to day business. 5. The petitioner came to know from the B.B.C. London in September, 1995 that several cases have been filed against him in India for alleged default of Provident Fund dues and warrant issued by Courts to be executed anywhere in the world with the help of Interpol were pending. Accordingly, the petitioner has challenged the said criminal cases detained earlier on various grounds. 6. It is alleged that taking of cognizance of an offence is a Judicial Act and the Court in doing so, is not bound by the conclusion drawn by investigating machinery. The Ld. Magistrate taking cognizance merely acted upon the police Report under s. 173(2) Cr.P .C. which did not accompany documents and statements under s. 173(5) Cr.P.C. The taking of cognizance by the Ld. Magistrate is a mechanical one and as such it is bad and all further proceedings including issuance of warrant of arrest must fail. The Ld. Magistrate taking cognizance merely acted upon the police Report under s. 173(2) Cr.P .C. which did not accompany documents and statements under s. 173(5) Cr.P.C. The taking of cognizance by the Ld. Magistrate is a mechanical one and as such it is bad and all further proceedings including issuance of warrant of arrest must fail. Defence has also been taken about the feasibility of dragging the petitioner in the said cases even though he has nothing to do with the day to day business of the Companies. Some other grounds which have been taken by the petitioner in the revisional applications need be stated since in course of hearing argument was concentrated only on one ground namely, ground no.2 dealing with taking of cognizance. 7. I have carefully perused all the seven charge sheets submitted by the investigating agencies on various dates and I have also carefully perused the relevant orders by which the Ld. S.D.J.M. took cognizance of the offence on the basis of the charge sheet. A scrutiny of the charge sheets reveal that in all cases considerable documents were seized but all were given in Jimma of different persons under 'Jimmanama' with the direction to produce the. same in Court whenever required. There is no averment in the charge sheets that the statements under s. 161 Cr.P .C. or any of the documents or their extracts accompanied the charge sheet. The orders dealing with taking of cognizance also reveal that there was total non-application of mind by the Ld. Magistrate. As I have said earlier, I have perused all the relevant orders from the Lower Court record and it is sufficient for me to quote only one since all the orders are practically the same excepting with regard to the execution of warrant of arrest through different agencies, at times by the Ministry of Home Affairs, Government of India, at times through the Home Department, Government of West Bengal, at times through C.B.I. but in all cases to be executed with the help of Interpol. 8. Let me quote the order passed in G.R. Case No. 324 of 1993 which has given rise to the revisional application No. 832 of 1996. The relevant order dated 16.8.94 runs thus: "seen charge sheet under s. 406/409 IPC against 1. Narendra Pratap Srivastab, 2. Muktiswar Mishra & 3. R.J. Brealey cog. is taken. 8. Let me quote the order passed in G.R. Case No. 324 of 1993 which has given rise to the revisional application No. 832 of 1996. The relevant order dated 16.8.94 runs thus: "seen charge sheet under s. 406/409 IPC against 1. Narendra Pratap Srivastab, 2. Muktiswar Mishra & 3. R.J. Brealey cog. is taken. (1) Seen prayer of IO who prays for issuance of W.P. & A against absconding accused R.J. Brealey prayer of IO is allowed. Issue warrant of arrest against R.J. Brealey and send the same to Ministry of Home Affairs, Government of India, New Delhi for Its execution with the help of Interpol. To. 1.10.94 for E.R. of W/A ". (Emphasis supplied) In the aforesaid order except the underlying portion the rest appears to have been written by some official placing the record before the Ld. Magistrate and the Ld. Magistrate only wrote down the underlying portion. 9. The point for consideration is whether s. 190(1)(b) Cr.P.C permits such type of taking of cognizance in a mechanical manner without any application of judicial mind. The issue regarding taking of cognizance has become the subject matter of series of decisions by the Apex Court and also different High Courts in India and it is well settled that the word "cognizance" has got no magic and the word "signifies and involves" a lot of application of. judicial mind. Different sources are open to the Magistrate while dealing with the police Report commonly known as charge sheet in West Bengal, other than Calcutta where it is generally termed as challan. The Magistrate, if on consideration of police report is satisfied about the commission of offence which is cognizable in nature, he has to take cognizance and thereafter proceed in accordance with law. If he differs from the opinion of the investigating agency he may direct further investigation and may even suggest the line of investigation. In case, he finds that materials collected by the investigation agency are not at all sufficient to show that a cognizable offence has been committed, he shall discharge the accused persons whether they are in custody or on bail. In case, he finds that materials collected by the investigation agency are not at all sufficient to show that a cognizable offence has been committed, he shall discharge the accused persons whether they are in custody or on bail. At this stage of taking cognizance, the Magistrates is required to concentrate on a police Report which is a document as referred under s. 173(2) Cr.P.C. But this police Report in cases when s. 170 Cr.P.C. applies must contain all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation and the statements recorded under s. 161 of all the persons whom the prosecution proposes to examine as its witnesses in terms of s. 173(5) Cr.P.C. Therefore, the order passed by a Magistrate showing taking of cognizance must .reveal whether apart from the charge sheet or challan as the case may be the documents and statements as referred under s. 173(5) Cr.P.C. were placed before the Magistrate at the time of taking of cognizance. The order need also reveal that the Magistrate taking cognizance properly applied his mind to these documents and statements apart from the charge sheet or challan. Failure to comply with the aforesaid provisions of law will make the taking of cognizance bad and accordingly all subsequent proceedings shall be void. 10. In the present case the order quoted by me clearly shows the mechanical nature of the taking of cognizanace devoid of any application of mind by the Ld. Magistrate. Such sort of mechanical act in the matter of taking of cognizance is not enjoined by the Code and as such the same cannot be allowed to stand. 11. From the different courses available before the Magistrate at this stage, it is clear that in the absence of application of mind the power vested in the Magistrate becomes meaningless. The irresistable conclusion will be that in cases like this, a Magistrate practically acted at the dictate of the investigating machinery which cannot be allowed to stand. Accordingly, I come to the conclusion that the taking of cognizance in all the seven cases referred earlier are bad in law and all subsequent steps taken by the Ld. Magistrate are void. As such, the relevant orders in all the seven G.R. cases dealing with taking of cognizance and issuance of warrant of arrest stands set aside. Accordingly, I come to the conclusion that the taking of cognizance in all the seven cases referred earlier are bad in law and all subsequent steps taken by the Ld. Magistrate are void. As such, the relevant orders in all the seven G.R. cases dealing with taking of cognizance and issuance of warrant of arrest stands set aside. The Ld. Magistrate is directed to get hold of all the documents and statements as mentioned under s. 173(5) CrP.C. and properly apply his judicial mind to consideration of the said materials as also the charge sheets and thereafter to come to conclusion whether an offence in question has actually been committed or not and if so, to deal with the same in accordance with law. 12. All the issues, other than the point of taking cognizance are kept upon to be agitated, if necessary in any subsequent proceeding. 13. It is surprising that inspite of pleathora of decision of the Apex Court and also this Court. in very many cases the Magistrates taking cognizance act in mechanical manner in total disregard of the provisions of law embodied in the Code itself and interpreted by several decision of the Apex Court as well as this Court. As such the Registrar, Appellate Side is directed to send extract of this judgement to Subordinate Judicial Officers posted as Judicial Magistrates in West Bengal. 14. In the result, all the seven revisional applications stand allowed and the relevant orders dealing with taking of cognizance in all the seven G.R. cases mentioned earlier stands set aside. Revisional application allowed. Orders taking cognizance and insurance of warrant of arrest set aside. Direction given to the learned magistrate to get hold of the documents and statements mentioned under s. 173(5) Cr.P.C. and after application of judicial mind to those materials as also the charge sheets to deal with the cases in accordance with law.