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2016 DIGILAW 18 (SIK)

Vinay Rai v. State of Sikkim

2016-08-19

MEENAKSHI MADAN RAI

body2016
ORDER : Meenakshi Madan Rai, J. 1. By filing the instant application, the petitioner, inter alia, prays for setting aside/quashing the impugned Order dated 5-6-2013, taking cognizance of the offence under Sections 406/420/467/120B/34 of the Indian Penal Code (for short "IPC"), passed by the learned chief judicial Magistrate, South and West Sikkim, at Namchi, South Sikkim, in General Register Case No. 119 of 2013 (presently pending before the Learned Judicial Magistrate, East at Gangtok) arising out of FIR No. 51/2012 dated 1-9-2012. That, the matter be remanded back to the Learned Magistrate with a direction to issue a speaking and reasoned order while taking cognizance, if any, duly affording the petitioner an opportunity of making submissions before cognizance and that liberty be granted to the petitioner to urge all other pleas raised in Cri.M.C. No. 20 of 2014 (hereinafter referred to as "Cri.M.C.") before the Learned Magistrate, at the time of hearing on the point of cognizance. Suffice it to mention here that the petitioner had filed Cri.M.C. under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C") assailing the FIR No. 51/2012, the charge-sheet, the Cognizance Order, Issuance of Summons to the Petitioner and subsequent proceedings and prayed that all of the above be quashed. The matter was thereafter listed for final hearing. In the interregnum, on 18-5-2016, the petitioner filed the instant application being I.A. No. 01 of 2016 which is the subject-matter for consideration in this Order. 2. The facts relevant herein are that the impugned FIR was registered suo motu by the Investigating Agency under Sections 406/420/467/120B/34 of the IPC, alleging that one Eastern Institute for Integrated Learned in Management (EULM) University, Sikkim was awarding Degrees for which it did not have recognition from the competent Authorities. While the Petitioner was named in the said FIR there were no allegations as to his role or responsibilities in the affairs of the University in question. Hence, the above prayers in Cri.M.C. 3. That, the petitioner in addition to the above prayers urges that in the event that this application is allowed, the petitioner will not press for other grounds laid out in the Cri.M.C., therefore, confining the instant application to setting aside the Cognizance Order dated 5-6-2013. 4. Hence, the above prayers in Cri.M.C. 3. That, the petitioner in addition to the above prayers urges that in the event that this application is allowed, the petitioner will not press for other grounds laid out in the Cri.M.C., therefore, confining the instant application to setting aside the Cognizance Order dated 5-6-2013. 4. It was put forth by Learned Counsel for the Petitioner that the impugned Order of the Learned Chief Judicial Magistrate dated 5-6-2013, suffers from non-application of mind, inasmuch as no reasons have been put forth in the Order before issuing Summons to the Petitioner in the matter, when in fact, there are no materials against him under the Sections of Law reflected in the said Order. Reliance was placed in the decision of the Hon'ble Apex Court in GHCL Employees Stock Option Trust v. India Infoline Limited (2013) 4 SCC 505 : ( AIR 2013 SC 1433 ) criminal action against them, and that the High Court has correctly noted that issuance of summons against Respondents 2 to 7 is illegal and amounts to abuse of the process of law. Attention was also drawn to the decision in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998) 5 SCC 749 : (AIR 1998 SC 128) where the Hon'ble Apex Court held that, summoning of an accused in a criminal case is a serious matter and the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto, while the impugned Order reflects no such application of mind. Reference was made to the decision in Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609 : ( AIR 2015 SC 923 ) wherein the Hon'ble Apex Court has opined that taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. Learned Counsel further invited the attention of this Court to a catena of decisions of the various High Courts of the Country and contends that the High Courts have held that when cognizance is taken, the order summoning the accused for trial should be a speaking order. 5. Learned Counsel further invited the attention of this Court to a catena of decisions of the various High Courts of the Country and contends that the High Courts have held that when cognizance is taken, the order summoning the accused for trial should be a speaking order. 5. Resisting the above arguments, it was submitted by Learned Additional Public Prosecutor that, the Petitioner is precluded from filing the instant application since the point of cognizance had also been taken in Cri.M.C. Nos. 17 and 22 of 2013 before this Court which was finally disposed of on 15-10-2014 and this point although averred in the Petitions had not been pressed during the hearing. It was also stated that against the Order in Cri.M.C. Nos. 17 and 22 of 2013 the Petitioner had approached the Hon'ble Apex Court but withdrawn the Petitioner for Special Leave to Appeal (Cri.) pointing out that certain documents had not been produced before the High Court and they wanted to rely upon those documents. This was allowed by the Hon'ble Apex Court, but instead of filing any additional documents, the instant Application has been filed, now pressing the prayer for setting aside the impugned Order of the Learned Chief Judicial Magistrate taking cognizance thus, attempting to make out a new case. While inviting the attention of this Court to the decision in GHCL Employees Stock Option Trust ( AIR 2013 SC 1433 ) (supra) and Pepsi Foods Ltd. (AIR 1998 SC 128) (supra) relied on by the petitioner, it is submitted that the same deals with a Private Complaint Case under Section 200 of the Cr.P.C. and is, therefore, not relevant for the instant matter. That, in Sunil Bharti Mittal ( AIR 2015 SC 923 ) (supra) also relied on by the Petitioner, it is urged that the facts therein differ from the case at hand as the persons summoned were not named, in the FIR, while in the instant case, the Petitioner's name appears in the FIR. While buttressing his submission that there is no illegality in the Order of the Learned Chief Judicial Magistrate, reliance was placed on Bhushan Kumar and another v. State' (NCT of Delhi) and another (2012) 5 SCC 424 : (AIR 2012 SCT 747) that the Magistrate had taken Judicial Notice of an offence, that the impugned Order herein, reflects as much. Hence, the Application be dismissed. 6. Hence, the Application be dismissed. 6. I have heard Learned Counsel for both parties at length and given anxious consideration to the submissions. I have also carefully perused the judgments cited at the bar by Learned Counsel for both parties. 7. Addressing the arguments of the Learned Additional Public Prosecutor that an attempt is being made to bring out a new case by filing the instant Application, I find that nothing in law debars the Petitioner from filing an interim Application confined to a particular prayer, as in the instant application. Hence, this argument has no legs to stand. 8. Now, with regard to the matter of taking cognizance, it would be worthwhile to refer to Section 190 of the Cr.P.C. which is extracted hereinbelow for convenience. "190. Cognizance of offences by Magistrates.-- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." This Section, therefore, enumerates the specific ways in which a Magistrate can take cognizance of an offence, in otherwords, take notice of an allegation of commission of an offence. Cognizance can be taken in three ways (a) upon receiving a complaint, i.e., any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report (b) upon a police report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 of the Cr.P.C. (c) upon other information or Magistrate's own knowledge. If the report is one under Section 173 of the Cr.P.C. then the Magistrate is required to follow the procedure under Sections 238 to 243 of the Cr.P.C. After the Final Report of investigation is submitted the Magistrate either takes cognizance and initiates proceedings or passes any other order as he thinks fit. It is relevant to mention here that expression "take cognizance" has not been defined in the Cr.P.C. However, it is now established that when the Magistrate on receiving a complaint or police report applies his mind to the materials on record and decide to proceed with the matter he is said to have taken cognizance of the offence within the meaning of Section 190 of the Cr.P.C. 9. Thus, it does not involve any formal action, but occurs as soon as the Magistrate applies his mind to the suspected commission of the offence. The Court at that stage is not required to undertake an elaborate enquiry neither is he required to mention the documents which he took into consideration for satisfying himself to take cognizance. Although it has been argued by Counsel for the Petitioner that the matter be remanded back to the Magistrate for passing a speaking order duly allowing the Petitioner to present his case, in my considered opinion, this is a concept alien to the Cr.P.C. and is not tenable since Section 190 of the Cr.P.C. nowhere envisages such license to the petitioner. The section is confined to the duty of a Magistrate and cannot be expanded to allow the Petitioner to make any submissions at this stage. The petitioner shall be given ample opportunity to make any submissions at the stage of hearing on Charge. 10. In GHCL Employees Stock Option Trust ( AIR 2013 SC 1433 ) (supra) and Pepsi Foods Ltd. (AIR 1998 SC 128) (supra) it is clear that the Learned Magistrates in the matters discussed therein were considering Petitions filed under Section 200 of the Cr.P.C. which warrants that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the Complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. This procedure is not envisaged in a report lodged under Section 173(2) of the Cr.P.C. It is necessary to reiterate that the Hon'ble Apex Court has observed in Bhushan Kumar ( AIR 2012 SC 1747 ) (supra) as follows: "11. In Chief Enforcement Officer v. Videocon International Ltd. ( (2008) 2 SCC 492 ) (SCC p. 499, para 19 : ( AIR 2008 SC 1213 , P. 1216, para 12) the expression "cognizance" was explained by this Court as "it merely means 'become aware of and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code." On the same point of Law in Sunil Bharti Mittal ( AIR 2015 SC 923 ) para 42 (supra) the Apex Court has clearly laid down what taking "cognizance means", the relevant portion of which is extracted hereunder; "48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decide to issue process, he shall be said to have taken cognizance. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decide to issue process, he shall be said to have taken cognizance. At this stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not." Thus, while "taking cognizance" although an elaborate ritual of perusing the charge-sheet and supporting documents is required, it does not require an elaborate order, all it requires is application of judicial mind by the Magistrate to the materials placed before him. 11. While alluding to the decision of the various High Courts on which reliance was placed by Counsel for the Petitioner, it may be mentioned that in Akash Garg v. State of U.P. and others, (2012 (3) ALJ (NOC) 149 (All) decided by the Hon'ble High Court of Allahabad, the impugned Order Magistrate was quashed with a direction to reconsider the charge-sheet in the light of the relevant materials and to passed an appropriate Order afresh in accordance with Law. A careful perusal of the judgment would indicate that the Learned Magistrate therein had failed to disclose that he had perused the charge-sheet and the materials filed in support thereof. The Magistrate merely specified that he had received charge-sheet against the petitioner and taken cognizance. In Jitendra Mishra v. State of U.P. and another application u/s. 482 No. 43213 of 2012 dated 17-12-2012 of the Hon'ble Allahabad High Court. The Hon'ble Allahabad High Court while remanding back the matter to the Court below with a direction to pass a fresh speaking Order, was on account of the Magistrate not reflecting application of mind while taking cognizance of the matter. In Hazi Shafi v. State of U.P. and another, the Hon'ble High Court of Allahabad remanded back the matter with a direction to the Magistrate to apply his mind for the reason that the Order was cryptic and the Magistrate failed to reflect that he perused the police case diary and the case diary furnished and took cognizance of the matter. In Susheel Mahadeshwar and Girish Srinivasan v. The State of Maharashtra, the Hon'ble High Court of Bombay quashing the proceedings before the Learned Magistrate was of the opinion that the Magistrate while taking cognizance has not scrutinised the charge-sheet, Report and Annexures to arrive at a finding whether a prima facie case has been made out against the accused person which was not done by the Magistrate. 12. Having perused all of the above judgments, it is trite to reiterate that the same are not binding on this Court and are only of a persuasive value. That, having been said it may also be pointed out that in the said matters the Learned Magistrates on receiving Reports under Section 173 of the Cr.P.C. had failed to reflect in their Orders, that they had considered the charge-sheet at all. In the case at hand it is evident on perusal of the impugned Order, that the Learned Chief Judicial Magistrate has unequivocally recorded that he has "seen" the charge-sheet filed by the Prosecution under Sections 420, 467, 471, 201, 120B of the IPC and on consideration thereof is obviously of the opinion that prima facie case exists and has consequently taken cognizance of the offences and registered the case, followed by issuance of summons to the accused persons. The Order indicates applications of mind. 13. In conclusion, in consideration of the judgments of the Hon'ble Apex Court on this point of Law and in view of the discussions reflected above, I have to opine that there is, therefore, no shortcoming in the impugned Order of the Learned Chief Judicial Magistrate which satisfies the requirement of Law. Hence, the arguments supra of the petitioner cannot be countenanced. Consequently, the instant application deserves no consideration and is accordingly rejected.