Suraj Kumar Shaw v. State of West Bengal — 1998 DIGILAW 150 (CAL)

JUDGMENT A.B. Mukherjee, J.: This is an application under section 482 of Criminal Procedure Code been made to quash C.R. Case No. 447 of 1992 pending before the Metropolitan Magistrate, 4th Court, Calcutta. 2. The short fact giving rise to Taltolla Police Station Case No. 65 dated 7th of February 1992 culminating in the G.R. Case No. 447 of 1992, arises out of an information lodged by the Censor Officer, Department of Information and Cultural Activities, Government of West Bengal to the effect that there were some obscene scene in an English Film “A Summer Night” which was screened at Light House Cinema Hall on 7th of February, 1992. The police arrested two persons from the Cinema Hall and also seized two reels of the said Film and the xerox copy of the Censorship Certificate. By order dated 8th of February 1992 the Chief Metropolitan Magistrate directed the Investigating Officer to retain the seized articles in the Detective Department Malkhana till disposal of the case. The petitioner entered appearance at a later stage and took bail. He also received a copy of charge sheet on 28th of November, 1995. It is the petitioner's case that as per the charge sheet there was an interpolation in the said Film which ran for about seven minutes and which portion contained the offending scenes. The petitioner came to know from the charge sheet that there was report of verification of the seized Film with reference to the Master copy. It is his contention that this verification was done without any order from the Chief Metropolitan Magistrate or any other Magistrate and in violation of the relevant rules at a much later date when as per rule the verification is to be done in presence of a Magistrate to be deputed by the Chief Metropolitan Magistrate and such verification is to be done within 24 hours from the time of seizure of the Film. There were other irregularities namely, absence of independent witnesses in terms of section 100 of the Criminal Procedure Code. 3. When the matter is taken up for hearing, it was submitted by the Ld. There were other irregularities namely, absence of independent witnesses in terms of section 100 of the Criminal Procedure Code. 3. When the matter is taken up for hearing, it was submitted by the Ld. Advocate appearing for the State that two co-accused to the present petitioners in the instant case resorted to a revisional application on identical prayer of quashing before this Court giving rise to criminal revisional Case No. 1376 of 1997 which was dismissed following a contested hearing by D.B. Dutta-J. on 13th of September 1997. Accordingly, the Ld. State Advocate was asked to obtain a copy of the said decision pursuant to which a xerox copy of the said decision alleged to have been obtained from the certified copy was produced by the Ld. State Advocate. 4. It appears from the said copy that there was a revisional application for quashing of the instant G.R. Case and the Learned Advocate appearing for the petitioners in the said revisional application canvassed two points before the Revisional Court. It was contended that the verification was not done in accordance with law rather it was a fishy affair leaving every scope to interpolate the alleged seized reels of the Film so as to implicate the petitioners. It was also contended that reel Nos. 5 & 6 were alleged to have been seized, whereas according to certificate given by the Censor Board of Film certification the Film contained only four reels. There was also an argument that a prosecution for an alleged offence under section 292 of the Indian Penal Code and also under section 7(1)(a) of the Cinematography Act cannot lie. The Ld. Judge while analysing the arguments of both the sides found that it was not a case for application of revisional jurisdiction to quash the proceeding pending in the Trial Court since the allegations made can be substantiated only after full evidence is adduced. After quoting the relevant decisions of the Apex Court on the point of quashing, the Ld. Judge was pleased to dismiss the revisional application. The ground taken in the present revisional application is practically the same, but the Ld. Advocate arguing for the petitioner focused his argument on another aspect going into the root of the case, namely, taking of cognizance by the Learned Chief Metropolitan Magistrate. Judge was pleased to dismiss the revisional application. The ground taken in the present revisional application is practically the same, but the Ld. Advocate arguing for the petitioner focused his argument on another aspect going into the root of the case, namely, taking of cognizance by the Learned Chief Metropolitan Magistrate. He accordingly argued that since this vital law point was not canvassed in course of the decision of the earlier revisional application and since the Learned Judge had no occasion to consider that aspect of law while disposing of the earlier revisional application, the same point can be raised by a co-accused in course of a different revisional, application. 5. It is contended by the Ld. Advocate appearing for the petitioner after drawing my attention to the xerox copy of the order dated 19th of July 1993 that cognizance of the offence was not taken by the procedure which need be followed while taking the cognizance under section 190(1)(b) of the Criminal Procedure Code and as such cognizance has not been taken in accordance with law. It is submitted that there is no indication in the said order of taking cognizance that the statement of witnesses recorded under section 161 of the Criminal Procedure Code and all documents or relevant extracts thereof on which prosecution proposes to rely formed part of the charge sheet in terms of section 173(5) of the Criminal Procedure Code. It is contended that in accordance with the established decision, a police report as mentioned in section 173(2) of the Criminal Procedure Code shall also contain such statements and documents in terms of section 173(5) of the Criminal Procedure Code. On the other hand, the Ld. Public Prosecutor, High Court appearing for the State based his arguments to the effect that a police report as mentioned in section 173(2) of the Criminal Procedure Code itself is sufficient for taking cognizance of an offence and the omission to incorporate the statement and documents in course of section 173(5) of the Criminal Procedure Code cannot effect the taking of cognizance. In support of his contention the Ld. Public Prosecutor has relied on a decision reported in 1997 C.Cr.LR (Cal) 122 (Suresh Mahato vs. State of West Bengal) and submitted that statements and documents mentioned in section 173(5) of the Criminal Procedure Code is not an indispensible part of charge sheet. In support of his contention the Ld. Public Prosecutor has relied on a decision reported in 1997 C.Cr.LR (Cal) 122 (Suresh Mahato vs. State of West Bengal) and submitted that statements and documents mentioned in section 173(5) of the Criminal Procedure Code is not an indispensible part of charge sheet. It is accordingly contended that there is no illegality in the matter of taking cognizance of the offence. 6. The Ld. Advocate appearing for the petitioner has placed his reliance on a decision reported in 1991 SCC (Cr.) 734 (V. Veeraswami vs. Union of India & Ors.) and also another decision reported in 1995 SCC (Cr) 16 (State of Maharashtra vs. Sharad Chandra Vinayak Dongre and Ors.) in support of his contention that the statement and documents as mentioned under section 173(5) of the Criminal Procedure Code is an indispensible and non-separable part of section 173(2) of the Criminal Procedure Code. In other words, it is his contention that in the absence of such statements and documents or their extracts, a police report as mentioned in 173(2) of the Criminal Procedure Code is incomplete. In this connection he has also relied on a decision of this Court reported in 1996 (II) CHN 362 (R.C. Berly vs. State of West Bengal) in support of the above contention. 7. I have carefully perused the decision from the xerox copy supplied by the State regarding Criminal Revision No. 1376 of 1997 when two of the co-accused of the present petitioner resorted to a revisional application in this Court which was disposed of by D.B. Dutta-J. on 30th of September, 1997. As stated earlier in Course of hearing of the said revisional application only two points touching on the merit of the case was argued and the Ld. Judge confined his discussion to the said two points and opined that those points could be settled only when full evidence is before the Court following trial. In that view of the matter the Ld. Judge was pleased to dismiss the revisional application. The point before this Court is whether in the facts and circumstances the present revisional application by a co-accused is maintainable. I have already mentioned that the Ld. In that view of the matter the Ld. Judge was pleased to dismiss the revisional application. The point before this Court is whether in the facts and circumstances the present revisional application by a co-accused is maintainable. I have already mentioned that the Ld. Advocate arguing the case for the petitioner when confronted with the earlier decision of this Court did not refer to the earlier points since he conceded that those points cannot be agitated again at this stage, but it is his contention that a vital aspect touching the initiation of the proceeding, namely, taking of cognizance was lost sight of by the Ld. Counsel appearing for those petitioners and obviously this could not be brought to the notice of the Ld. Judge who disposed of the earlier revisional application. It is contended that in view of the peculiar facts and circumstances, the present revisional application by the co-accused is perfectly maintainable on the new ground which earlier escaped the attention of the Ld. Counsel. The Ld. Public Prosecutor, who appeared for the State could not disapprove the contention of the Ld. Advocate appearing for the petitioners but it was his contention that this point of taking cognizance was also discussed in the earlier judgment. He also put much emphasis on the merit of the case and the gravity of the offence alleged to have been committed by the accused persons. It is also his contention that a grave offence alleged to have been committed by the accused persons should not be allowed to go un-punished simply on the basis of non-observance of a formality which according to him is a mere technicality. He also argued that even a police report under section 173(2) of the Criminal Procedure Code is sufficient to take cognizance of the offence and omission to incorporate the statements and documents or extracts thereof in terms of section 173(5) of the Criminal Procedure Code is not at all fatal. 8. So far as the maintainability of the present revisional application is concerned since I do not find that the petitioners in the earlier revisional application being co-accused to the present petitioner raised the point regarding taking of cognizance and since the Ld. 8. So far as the maintainability of the present revisional application is concerned since I do not find that the petitioners in the earlier revisional application being co-accused to the present petitioner raised the point regarding taking of cognizance and since the Ld. Judge disposing of the earlier revisional application had no occasion to focus his attention to this aspect of the matter, the present revisional application is perfectly maintainable but its fate will defend on the only point touching on the taking of cognizance of the offence by the trying Magistrate and no other. 9. Accordingly, I propose to deal with this point and before considering the legal position as enunciated in the different decisions and also the scope of section 173(2) and 173(5) of the Criminal Procedure Code, it is necessary to examine the order passed by the Ld. Chief Metropolitan Magistrate, Calcutta on 19th of July 1993 in the matter of taking cognizance. The said order runs as follows :– “Accused (1 + 2) are on Court Bail till 28.7.93. Received a challan under section 7(1)(a) of the Cinematography Act 1952 as amended in 1984 and Rule 23A of the West Bengal Cinema (Regulation of Public Exhibition) Rules 1956 as amended in 1987, section 292/114 IPC against the accused 1 + 2 and also against the accused 3 + 4 who are being perused Case Diary. Cognizance taken. To Shri S.N. Bhattacharyya for disposal”. The point for consideration before this Court is whether the cognizance of the offence has been taken in accordance with the provision of law. 10. Obviously, in the present case cognizance was taken by the Ld. Magistrate in accordance with section 190(1)(b) of the Criminal Procedure Code, namely, upon a police report. Police report has been defined in section 2(r) as a report forwarded by a police officer to a Magistrate under subsection 2 of section 173. 10. Obviously, in the present case cognizance was taken by the Ld. Magistrate in accordance with section 190(1)(b) of the Criminal Procedure Code, namely, upon a police report. Police report has been defined in section 2(r) as a report forwarded by a police officer to a Magistrate under subsection 2 of section 173. Section 173(2) runs thus :- “As soon as it is concluded, Officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating – (a) The names of the parties; (b) The nature of the information; (c) The names of the persons who appeared 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; (g) Whether he has been forwarded in custody under section 170. 11. Section 173(5) of the Criminal Procedure Code runs thus :- "When such report is in respect of a case to which section 170 applies the Police Officer shall forward to the Magistrate along with a report – (a) All documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. (b) The statement recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses”. 12. Section 170 of the Criminal Procedure Code deals with the procedure following by the Officer-in-charge of Police Station while sending cases to a Magistrate when evidence is sufficient. In short, it says that when it appears to the Officer-in-charge of the Police Station that there is sufficient evidence or reasonable ground such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon police report and to try the accused or commit him for trial or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before the Magistrate on a day fixed and for his attendance from day to day before the Magistrate. The rest of the portions of the section 170 of the Criminal Procedure Code is not important for our present purpose. Needless to say that the present proceeding before the Ld. Chief Metropolitan Magistrate is a case to which section 170 Cr.P.C. applies. Therefore, in terms of section 173(5) of the Criminal Procedure Code the police report commonly known as charge sheet or challan must also incorporate the statements and documents or their extracts in terms of section 173(5) of the Criminal Procedure Code. 13. The point before this Court is whether this incorporation of the statement and document or their extracts is a mere formality which can be dispensed with or whether it is essential part in the absence of which the report is not complete. This issue came up though not directly but incidentally in a number of decisions copies of which has been furnished by the Ld. Advocates representing the parties. The decision reported in 1997 C.Cr.LR (Cal) 122 disposed of by a Division Bench of this Court is in connection with disposing of an application for bail under section 439 of Criminal Procedure Code. What happened in that case is that forensic report did not form a part of the charge sheet which was submitted before the Magistrate within a period of 90 days. The accused claimed to reap the benefit of section 167(2) of the Criminal Procedure Code in as much as it was contended that the charge sheet was not complete in the absence of the forensic report and as such the investigation could not be said to be completed and accordingly the accused was entitled to benefit of statutory bail in terms of the said provision of law. The Division Bench found that no forensic report was forwarded along with the charge sheet under section 173(5) of the Criminal Procedure Code nor any copy of the same was given to the accused. It was found by the Ld. Judges that a charge sheet which was filed within the statutory period was accepted and the Magistrate also took cognizance of the offence. It was found by the Ld. Judges that a charge sheet which was filed within the statutory period was accepted and the Magistrate also took cognizance of the offence. It distinguished Andhra Pradesh High Court's decision where in the face of omission to incorporate certain vital papers in terms of section 173(5) of the Criminal Procedure Code the concerned Magistrate did not consider the charge sheet to be complete and returned the same with the direction to the Investigating Authority to send a complete charge sheet together with all the papers. The Ld. Judges while discussing the ratio of the decision reported in AIR 1980 SC 506 where the Apex Court while observing that the report as envisaged by section 173(2) of the Criminal Procedure Code has to be accompanied as required by sub-section (5) by all the documents and statements of witnesses and one cannot divorce the details which the report must contain as required by sub-section (2) from its accompaniment which are required to be submitted under sub-section (5) did not deal not had any occasion to deal with the question as to what will be the consequence if all the documents referred in section 173(5) of the Criminal Procedure Code are not forwarded along with the police report submitted under section 173(2) and whether exclusion of any such document while submitting charge sheet will make the charge sheet non est or inoperative or illegal. The Ld. Judges of the Division Bench also did not deal with this aspect since as observed by them "we are not required to deal with that question because here the only question required to be decided is whether the charge sheet should be treated as non-existent simply because no forensic report has been forwarded with the same." Therefore, the omission to incorporate the statements and documents in terms of section 173(5) of the Criminal Procedure Code in the matter of taking cognizance was not the issue before the Ld. Judges of the Division Bench referred above. 14. The fact in the decision reported in 1995 SCC (Cr.) 16 is also to a large extent different. Judges of the Division Bench referred above. 14. The fact in the decision reported in 1995 SCC (Cr.) 16 is also to a large extent different. In that case, the I.O. submitted five charge sheets before the Chief Metropolitan Magistrate together with two applications one for condonation of delay and the other for permission to further investigation with regard to some of the persons who could not be sent up for trial since the I.O. could not collect material regarding those persons. The Chief Judicial Magistrate took cognizance of the offence and issued process against the charge sheeted accused. He also allowed the application regarding condonation of delay but the other application dealing with the prayer for further investigation was kept pending for orders. The accused challenged the order before the High Court and sought to quash under section 482 of the Criminal Procedure Code. The allegation made was that the delay was condoned without giving opportunity to the accused persons to contest such a prayer. The second ground was that the Chief Judicial Magistrate could not take cognizance of the offence on an incomplete police report since the I.O. himself prayed for further investigation regarding some of the persons who were not sent up in that charge sheet as they could not collect material against those persons up to that point of time. The High Court came to the conclusion that the procedure regarding condonation of delay followed by the Chief Metropolitan Magistrate without giving a chance to the accused person is an illegality specially when no sufficient reason was mentioned for such condonation. Regarding taking of cognizance, the High Court held that the Chief Judicial Magistrate was aware that the charge sheet was incomplete and as such it could not have taken cognizance of the offence and issued process. Accordingly, the proceeding was quashed. The Apex Court upheld the finding of the High Court regarding the procedure of condonation matter and sent the matter back to the Chief Judicial Magistrate for giving a hearing to the accused persons and then come to a reasoned decision. Regarding the quashing of the proceeding on the ground of taking cognizance of incomplete report, the Apex Court did not upheld the order of the High Court and in doing so the relevant provisions of section 173 of the Criminal Procedure Code was discussed. Regarding the quashing of the proceeding on the ground of taking cognizance of incomplete report, the Apex Court did not upheld the order of the High Court and in doing so the relevant provisions of section 173 of the Criminal Procedure Code was discussed. The Apex Court after quoting 173(2) of the Criminal Procedure Code stated that the purpose of police report is to enable the Magistrate to satisfy himself whether on the basis of the report and the materials filed along with the police report a case for taking cognizance has been made out or not. It said that after application of mind to the police report and materials submitted therewith if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed in accordance with the provisions of section 190(1)(b) of the Criminal Procedure Code. It was also laid down that if the police report and the materials filed therewith are sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted under section 173(2) of the Criminal Procedure Code. It also held that merely because the prosecution had filed an application after the submission of charge sheet seeking permission to file supplementary charge sheet, it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge sheet that cognizance of the offence was required to be taken. It also held that it is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution that the report (charge sheet) was sufficient to take cognizance or not. It also relied that the power of the Magistrate to take cognizance cannot be controlled by the investigating machinery, whose duty is only to investigate and place the facts and evidence before the Magistrate. 15. In the aforesaid decision it is clear that the Apex Court specifically mentioned that, apart from the police report, namely, charge sheet or the challan, there must be other materials obviously under section 173(5) of the Criminal Procedure Code on the basis of which the Magistrate is to act in the matter of taking cognizance. 15. In the aforesaid decision it is clear that the Apex Court specifically mentioned that, apart from the police report, namely, charge sheet or the challan, there must be other materials obviously under section 173(5) of the Criminal Procedure Code on the basis of which the Magistrate is to act in the matter of taking cognizance. It may be that all the statements or all the documents may not form part of the charge sheet or challan, nevertheless if the Magistrate finds such charge sheet or challan and all the materials which have been supplied to him are sufficient to come to a prima facie finding regarding involvement of the accused persons with the commission of the cognizable offence, the Magistrate is perfectly within his jurisdiction to take cognizance of the offence. While doing so, in the event or a prayer from the prosecution side to collect further material in the shape of further investigation can be allowed depending on the facts and circumstances of each individual case like the one which was before the Apex Court where the investigating machinery wanted to collect materials regarding some persons who could not be sent in the charge sheet for paucity of materials. 16. The decision reported in 1991 SCC (Cr.) 734, while dealing with some other aspects also was required to deal with section 173(2) and section 173(5) of the Criminal Procedure Code. In paragraph 76 of the said decision, the Apex Court while dealing with the provisions of section 173(2) of the Criminal Procedure Code observed” in fact, the report under section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned, he has been able to procure sufficient materials for the trial of the accused by the Court. The report is complete, if it is accompanied with all the documents and statements of witnesses as required by section 173(5)”. Therefore, it is the established law of the land that the police report under section 173(2) Cr.P.C. whether it is called a charge sheet or a challan must accompany the statements and documents under section 173(5) Cr.P.C. I had occasion to deal with this matter while this matter while disposing an earlier revisional application being reported in 1996(II) CHN 362 . While disposing of the said revisional application, I had occasion to observe that the taking of cognizance is not a mere ritual and there is nothing magic in taking cognizance but it is a judicial application of mind on the basis of the report of the police officer as submitted under section 173(2) and the statement of witnesses as recorded under section 161 of the Criminal Procedure Code and either the document or the extracts of document on which prosecution proposes to rely during trial. In para 9 of the said decision I have expressed the view and I stand by the same in course of the present decision since I find support and draw inspiration from the decision of the Appex Court as mentioned above, apart from express provisions of the Code itself. 17. In the present case, it is clear from the relevant order dated 19th of July 1993 that the Ld. Chief Metropolitan Magistrate had before him the challan and no material under section 173(5) Cr.P.C. instead he had the Case Diary before him and he is supposed to have perused the same as it appears from the contents of the relevant order. Now the question is whether this Case Diary is a substitute for the statements and documents as mentioned under section 173(5) Cr.P.C. in other words whether the omission to incorporate the materials in terms of section 173(5) can be overcome by placing the Case Diary before the Magistrate taking cognizance. Apart from the aforesaid decisions, the Ld. Advocates representing the two sides. could not place an identical case before me where this question arose. As such, I shall have to deal with and take the assistance of the Code itself in order to see whether the case diary may be said to be a substitute and whether the case diary as a whole can be taken into consideration at the stage of taking cognizance in terms of section 19(1)(b) of the Criminal Procedure Code along with the police report under section 173(2) of the Criminal Procedure Code. 18. Section 172 of the Criminal Procedure Code deals with the manner in which the case diary is to be maintained and the purpose for which it can be used. 18. Section 172 of the Criminal Procedure Code deals with the manner in which the case diary is to be maintained and the purpose for which it can be used. Section 172 of the Criminal Procedure Code runs thus : “Diary of proceedings in investigation :– (1) Every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary setting forth the time at which information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of circumstances ascertained through his investigation. (2) Every Criminal Court may sent for the police diary of a case under enquiry or trial in such Court and may use such diaries, not as evidence in the case, but to aid in any such enquiry or trial. (3) Neither the accused nor his agent shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to bind the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145 as the case may be, of the Indian Evidence Act of 1872 shall apply”. 19. The word ‘enquiry’ has been defined in section 2(g) as every enquiry other than a trial, conducted under this Code by a Magistrate of Court. The word trial has not however been defined and it requires no definition. Therefore, the purpose of maintaining case diary has clearly been laid down in the Code itself and the manner of its use has also been specifically mentioned. The maintenance of case diary and its use had come up in a number of decisions of different Courts. The established principle of law is that the police diary is to contain only the "proceeding" of the police officer. Statement of witnesses examined during investigation stage and recorded under section 161 of the Criminal Procedure Code must not be recorded in the diary, since if recorded they are not protected under section 162 as amended section gave the accused a right to get copy of such statement wherever recorded and in whatever form. Statement of witnesses examined during investigation stage and recorded under section 161 of the Criminal Procedure Code must not be recorded in the diary, since if recorded they are not protected under section 162 as amended section gave the accused a right to get copy of such statement wherever recorded and in whatever form. It has also been held that the statement of witnesses examined must not find place in the case diary since they are governed by section 161 and section 162 of the Criminal Procedure Code (31 CWN 940). In the matter of using the case diary by the Court, caution has been sounded in a number of decisions and it is held that the Court has to be particularly cautious and astute in the matter of issue of the diary. The diary must not be used as substantive evidence of any fact stated in it for coming to a decision. The Court cannot also use confessions and statement in the case diary to disbelieve the prosecution• or the defence case (1981 Cr. L.J. 563). Regarding the usefulness of diary on the part of the Court, it is held that the diary may furnish indicative evidence, namely it may give source and lines of enquiry and names of persons who may be able to give material evidence and the Court may put some necessary question to the witnesses on the basis of some fact noted in the diary or it may be used for clearing up ambiguity in evidence or bringing out relevant facts. 20. If we analyse section 172 of the Criminal Procedure Code itself, it will be clear as to what a case diary should contain. In fact, the case diary is required to mention whatever action is taken by the investigating officer from the time when the case is handed over to him for investigation till the end of investigation resulting in either a charge sheet or a final report. Section 172 of the Criminal Procedure Code specifically mentions the contents of the case diary and it may be noticed that the recording of statement of witness under section 161 of the Criminal Procedure Code has been prohibited by a plethora of decisions of different Courts. Section 172 of the Criminal Procedure Code specifically mentions the contents of the case diary and it may be noticed that the recording of statement of witness under section 161 of the Criminal Procedure Code has been prohibited by a plethora of decisions of different Courts. It is true, that the common practice is to keep the statement of witnesses as also the accused recorded under section 161 of the Criminal Procedure Code in the case diary itself so as to make it a part of the same but this practice has been deprecated and the Code nowhere empowers the investigating agency to record such statement in the case diary. It is well known that in course of investigation whatever materials come to the knowledge of the investigating officer including the knowledge derived from the source employed by him are noted in the case diary. Therefore, the question will be whether a case diary can be a substitute of the statements and documents as mentioned under section 173(5) of the Criminal Procedure Code. In other words whether on the basis of a police report alone under section 173(2) of the Criminal Procedure Code and a perusal of the case diary can enable a Magistrate to take cognizance of the offence. In my opinion, the law does not say so, on the other hand, such a course would be against the prohibition as mentioned in section 172(3) of the Criminal Procedure Code. Besides it is common experience that C.D. never contains documents or their extract. Therefore, in the matter of taking cognizance of an offence under section 190(1)(b) which comes in the chapter dealing with conditions requisite for initiation of proceedings the Magistrate cannot have recourse to the case diary. At that stage, he is to act on the basis of materials as mentioned in section 173 of the Criminal Procedure Code alone and none else. Therefore, in view of the established principles of law as discussed earlier perusal of the case diary cannot be held to be synonymous with statements and documents under section 173(5) of the Criminal Procedure Code. Accordingly, this taking of cognizance on the basis of challan and the case diary as has been done by the Ld. Chief Metropolitan Magistrate is not in accordance with law. 21. Accordingly, this taking of cognizance on the basis of challan and the case diary as has been done by the Ld. Chief Metropolitan Magistrate is not in accordance with law. 21. To sum up, the present revisional application is maintainable since the point taken before this Court was not the subject matter of any earlier revision. The cognizance of an offence by a Magistrate empowered to do so in terms of section 190(1)(b) of the Criminal Procedure Code is to be done only on the basis of police report as required under section 173(2) and in cases which are covered by section 170 of the Criminal Procedure Code statement of witnesses recorded under section 161 of the Criminal Procedure Code and the documents or their extracts to be relied on by the prosecution during trial must form an indispensible part of such police report. The Magistrate is to take cognizance of the offence on the basis of such police report and the materials mentioned under section 173(5) of the Criminal Procedure Code. Absence or omission to incorporate some of the materials to the police report shall not by itself debar the Magistrate to take cognizance of the offence provided the police report and such materials as accompany the same are sufficient to take cognizance of the offence, if such materials are sufficient for the purpose of satisfaction of the Magistrate. The taking of cognizance is not a ritual and mere formality but the word "cognizance" signifies a lot of application of judicial mind and the order taking cognizance must disclose such an exercise on the part of the Magistrate so taking cognizance. The case diary which is maintained in terms of section 172 of the Criminal Procedure Code cannot be used for any purpose other than those mentioned in the section itself and it must not contain any matter other than those mentioned in the section and specially the statement of witnesses under section 161 of the Criminal Procedure Code cannot form a part of the case diary. Therefore, case diary is not a substitute for the materials as mentioned in section 173(5) of the Criminal Procedure Code. Accordingly there is no scope to peruse the case diary at the time of taking cognizance of an offence under section 190(1)(b) of the Criminal Procedure Code. Therefore, case diary is not a substitute for the materials as mentioned in section 173(5) of the Criminal Procedure Code. Accordingly there is no scope to peruse the case diary at the time of taking cognizance of an offence under section 190(1)(b) of the Criminal Procedure Code. In the result, the order dated 19th of July 1993 cannot stand but that alone is not sufficient for quashing the proceeding pending below. Accordingly, the order dated 18.7.93 passed by the Ld. Chief Metropolitan Magistrate in the concerned proceeding is set aside. The matter goes back to the Ld. Chief Metropolitan Magistrate, Calcutta who shall obtain the statement of witnesses recorded under section 161 of the Criminal Procedure Code and also the document or extracts thereof on which prosecution intends to rely during trial and after proper application of mind he shall come to a finding as to whether the said materials disclose an offence and if so, to take cognizance under section 190(1)(b) of the Criminal Procedure Code. Thereafter, he shall proceed in accordance with law. As such all the orders subsequent to the order dated 19.7.93 became otiose. The revisional application accordingly stands allowed in part on contest. Let a copy of the order be sent to the Court below immediately. Allowed in part and the case sent back with direction.