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2001 DIGILAW 583 (CAL)

Sanjay Kapoor v. C. B. I.

2001-09-07

Pradip Kumar Biswas

body2001
JUDGMENT Pradip Kumar Biswas, J.: The instant application under section 401 read with section 482 of the Code of Criminal Procedure has been presented by the petitioner before this court seeking to quash the proceeding being R.C. 10 dated 5.2.96 under sections 419/420/468/471 of the Indian Penal Code and 20 of the Indian Telegraph Act, mainly on the ground that the learned Chief Metropolitan Magistrate, Calcutta did not have the requisite jurisdiction to take cognizance in the matter as the learned 12th Metropolitan Magistrate was only the designated court for trying the C.B.I. cases as per the Notification No.18167-J dated 30.7.91 is, sued by the Judicial Department, Govt. of West Bengal and also on the ground that the ld. Chief Metropolitan Magistrate while taking cognizance simply perused the charge-sheet but did not avert to the accompaniments of the charge sheet which was an infraction of sub-section (5) of section 173 of the Code of Criminal Procedure. 2. The learned counsel appearing on behalf of the petitioner has drawn my attention to the order dated 30.5.96 passed by the learned Chief Metropolitan Magistrate, Calcutta taking cognizance of the case and transferring the same for disposal to the file of the learned Metropolitan Magistrate, 12th Court, Calcutta for disposal. Drawing my attention to the aforesaid order, it has been submitted by the learned counsel appearing for the petitioner that at the relevant point of time, learned 12th Metropolitan Magistrate was the only competent empowered Magistrate to deal with C.B.I. cases as such the cognizance taken by the learned Chief Metropolitan Magistrate in this case and transferring the case to the court of learned Magistrate, 12th Court, Calcutta is absolutely void and illegal. 3. The aforesaid contention of the petitioner was resisted by the learned counsel appearing for the C.B.I. as also by the learned counsel appearing for the State of West Bengal and in this connection, it has been submitted by them that to make a valid transfer by the learned Chief Metropolitan Magistrate under sub-section(1) of section 192 of Criminal Procedure Code, he must have taken cognizance of the offence and once cognizance is taken by the learned Magistrate, no second cognizance can be taken for the same offence and even if a learned Magistrate has taken cognizance of the offence for the second time, it would not vitiate the entire proceeding. But the second cognizance would be liable to be quashed. It has further been contended on their behalf that since the learned Metropolitan Magistrate, 12th Court, Calcutta was the empowered Magistrate to deal with this type of cases, no illegality whatsoever has been committed in transferring the case to him after taking cognizance. It is, therefore, submitted by them that there is no merit in the submission of the petitioner and as such it should be rejected. 4. Upon hearing the contentions of both the sides and looking into the relevant provisions of law, I am also quite in agreement with views expressed by the learned counsels appearing for the C.B.I. as also for the State of West Bengal, due to the reason that as per the provisions of section 16(3) of the Code of Criminal Procedure, the jurisdiction of every Metropolitan Magistrate extends throughout the metropolitan area and as such, the learned Chief Metropolitan Magistrate was competent enough to take cognizance of the offence but could not only try the cases instituted by the C.B.I. in view of the proviso to sub-section (1) of section 11 of the Cr. P.C. which has forbidden any other Magistrates "to try any case or class of cases for the trial of which special court of Judicial Magistrate has been established". In view of the above position of law, I hold that there was no illegality committed by the learned Chief Metropolitan Magistrate in transferring the case to the file of learned Metropolitan Magistrate, 12th Court, Calcutta for disposal according to law. Consequently, I hold that there is no merit in the aforesaid contentions of the petitioner. 5. Now, turning to the second branch of the submission of the learned counsel appearing on behalf of the petitioner, it is seen that it has been claimed on behalf of the petitioner that the learned Chief Metropolitan Magistrate simply perused the charge sheet and took cognizance which was certainly an infraction of sub-section (5) of section 173 of the Code of Criminal Procedure and as such cognizance taken by him is absolutely bad in law and the continuation of the proceeding on the basis of such cognizance is also illegal and bad in law. 6. 6. The aforesaid contention of the petitioner has been resisted by the learned counsel appearing for the C.B.I. as also by the learned counsel appearing for the State of West Bengal and according to them there is no merit in the submission of the petitioner in as much as it is now quite settled position of law that taking of cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as Magistrate as such applies his mind to the suspected commission of offence. 7. In the instant case, drawing my attention to the impugned order, it has been submitted on behalf C.B.I. as also on behalf of State of West Bengal that in the impugned order, it has been reflected that the Chief Metropolitan Magistrate before taking cognizance, perused the F.I.R. containing four sheets and as such factually also there was no infraction of the provisions of section 173(5) of the Criminal Procedure Code, as claimed by the petitioner. Now, having heard the submissions of both sides and giving my anxious consideration over the issue in question and being fortified with the decisions reported in AIR 1951 SC 207 , AIR 1959 SC 1118 and AIR 1963 SC 765 , I hold clearly that the point taken by the petitioner with regard to the infraction of section 173(5) of the Code of Criminal Procedure has no merit at all. It, therefore, does not call for any interference by this court. 8. In view of the above, I held clearly that the points taken on behalf of the petitioner in this case have no merit at all and the instant revisional application, therefore, having no merit, is liable to be dismissed. In the result, the revisional application is dismissed. Let a copy of this order be sent down to the learned Lower Court immediately with a direction to proceed with this case in accordance with law as expeditiously as possible. Revisional application dismissed.