Hari Sankaran vs Serious Fraud Investigation ...
2022 Latest Caselaw 4100 Bom

         Digitally
         signed by
         SHAGUFTA
SHAGUFTA Q PATHAN
Q PATHAN Date:                                                                APL-507-2021.doc
         2022.04.20
         18:11:26
         +0530
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                                CRIMINAL APPLICATION NO. 507 OF 2021
                                       (LD/VC/OCR/146/2020 )


                      Hari Sankaran,
                      Everglades, Shobhasagar CHS,
                      21st Road, Bandra West,
                      Mumbai - 400 050                                     ...Applicant
                          Versus
                      Serious Fraud Investigation Office,
                      Through Assistant Director,
                      Ministry of Corporate Affairs,
                      7th Floor, Fountain Telecom, Building 1,
                      Mahatma Gandhi Road, Azad Maidan,
                      Fort, Mumbai - 400 001                               ...Respondent


                      Mr. Aabad H. Ponda, Sr. Advocate a/w Mr. Vikrant Singh Negi,
                      Ms. Ekta Tyagi, Mr. Pratik Thakkar, Ms. P. Singhania i/b DSK Legal
                      for the Applicant

                      Mr. Hiten S. Venegavkar for the Respondent-SFIO

                                             CORAM : REVATI MOHITE DERE, J.
                                             RESERVED ON : 23rd FEBRUARY 2022
                                             PRONOUNCED ON : 19th APRIL 2022
                  ORDER :

1 By this application preferred under Section 482 of the Code of

Criminal Procedure (`Cr.P.C'), the applicant seeks quashing and setting

SQ Pathan 1/26 APL-507-2021.doc

aside of the remand orders passed by the learned Special Judge, Greater

Bombay, after filing of the impugned complaint, on the premise that the

Special Court had not taken cognizance of the complaint filed by the

Serious Fraud Investigation Office ('the SFIO') and hence the

detention/custody of the applicant was illegal. The applicant also seeks his

release forthwith from the alleged illegal detention/custody on the aforesaid

premise.

2 A few facts as are relevant to decide the aforesaid application

are as under:-

The applicant was arrested by the respondent-SFIO on 1st April

2019, for the alleged offence punishable under Section 447 of the

Companies Act, 2013 vis-a-vis IL&FS Financial Services Limited ('the

IFIN'). The applicant, after his arrest, was remanded to custody under File

No. SFIO/INV/Unit-V/1003/IL&FS/2018-2019. On 28th May 2019, the

respondent-SFIO submitted a report to the Ministry of Corporate Affairs

(`MCA') against IFIN's Directors (including the applicant) and auditors,

running into more than 32000 pages. On 29 th May 2019, MCA issued a

SQ Pathan 2/26 APL-507-2021.doc

sanction letter under Section 212(14) of the Companies Act, directing the

respondent-SFIO to file its complaint before the Special Court against the

applicant and others, by 30th May 2019. Pursuant to the said direction

issued by the MCA, the respondent-SFIO filed a criminal complaint, being

Criminal Complaint No.20/2019 before the Special Court on 30 th May

2019. Being aggrieved by the direction issued by the MCA to file a

criminal complaint against the applicant and others, the applicant filed a

writ petition in this Court, being Writ Petition No.5263/2019 seeking

quashing of the said direction, the complaint and consequently, the

prosecution lodged by the respondent-SFIO, on the premise that the MCA

had not applied its mind whilst granting sanction. Similar petitions were

also filed by the other Directors and Auditors. The Division Bench of this

Court (Coram: B. P. Dharmadhikari, CJ and Nitin R. Borkar, J.) quashed

and set-aside the direction dated 29th May 2019, issuing sanction by the

respondent No.1-Union of India through Ministry of Corporate Affairs

(`MCA') under Section 212(14) of the Companies Act, to the respondent

No.2-SFIO as being unsustainable and consequential prosecution lodged by

the respondent No.2-SFIO vide Criminal Complaint No. 20/2019 on the

file of Special Court (Companies Act) and Additional Sessions Judge,

SQ Pathan 3/26 APL-507-2021.doc

Greater Mumbai, was held to be not maintainable and the same was also

quashed and set aside.

Whilst partly allowing the said petition, the Division Bench, in

para 202 XVII of the said judgment observed that the respondent-SFIO had

admitted that the Court had not taken cognizance of the report and in these

facts, if cognizance is not taken, the Court may not have power to remand

and as such the detention of the petitioner-Director may not be legal. The

Court also observed that however, since in the said petition, they were not

required to answer the said question of detention of the petitioner

(applicant), the said issue was kept open for consideration and liberty was

granted to the applicant to file appropriate proceedings for his release. It

appears that pursuant to the liberty granted by this Court vide order dated

21st April 2020, the applicant filed an application under Section 167(2) of

the Cr.P.C before the Sessions Court and the learned Sessions Judge vide

order dated 28th April 2020, was pleased to grant interim bail to the

applicant.

Being aggrieved by the said order granting interim bail, the

respondent No.2-SFIO filed an application being Criminal Application No.

SQ Pathan 4/26 APL-507-2021.doc

LD/VC/OCR/13/2020 and sought quashing and setting aside of the order

passed by the Sessions Court granting interim bail. The said application was

allowed by this Court (Coram : C. V. Bhadang, J.) vide order dated 5 th May

2020. It appears that the applicant filed an SLP before the Apex

Court challenging the order dated 5th May 2020 passed by this Court

(Coram: C. V. Bhadang, J.). The Apex Court vide order dated 16 th June

2020, after hearing the applicant's counsel, permitted the applicant to

withdraw the SLP and granted liberty to the applicant to pursue appropriate

remedies as available in law. Pursuant to the liberty granted by the Apex

Court, the applicant has filed the aforesaid application, seeking his release

on the premise that his detention, post filing of charge-sheet was illegal, as

no cognizance of the complaint has been taken by the learned Special

Judge.

3 Mr. Ponda, learned senior counsel for the applicant submitted

that the power under Section 167(2) of the Cr.P.C to remand the accused, is

only upto 60 days (as applicable to this case) and not beyond. He submitted

that once the complaint (or charge-sheet, as applicable to this case) is filed,

the power to remand under Section 167(2) comes to an end. He submitted

SQ Pathan 5/26 APL-507-2021.doc

that the applicant was first remanded to custody on 1 st April 2019 and the

complaint was filed by the respondent-SFIO on 30th May 2019 and

therefore, the power to remand the applicant under Section 167(2) of the

Cr.P.C had come to an end. According to the learned senior counsel,

remand under Section 309 of the Cr.P.C is possible only after the Court

takes cognizance of the complaint and since admittedly, cognizance has not

been taken by the Special Court, there is no power to remand the applicant

to custody even under Section 309 of the Cr.P.C. Learned senior counsel

submitted that having regard to the aforesaid, the detention and custody of

the applicant is illegal and his remand being contrary to law, he be released

forthwith.

4 Mr. Ponda further submitted that once charge-sheet is filed, it

is incumbent on the Court to take cognizance and that no gap is envisaged

in the Cr.P.C between filing of charge-sheet and taking of cognizance. This,

according to him, is in consonance with the constitutional mandate of

protecting the personal liberty of an accused. In support of the said

submission, learned senior counsel for the applicant relied on the judgments

SQ Pathan 6/26 APL-507-2021.doc

in Rahul Pareek vs State of Rajasthan & Ors.1 and C.B.I vs Anupam

J. Kulkarni2. Thus, according to Mr. Ponda, remand under Section 309 of

Cr.P.C is possible only after Court takes cognizance of the offence and as

such, all the remand orders passed by the learned Judge being illegal, the

same be set-aside and the applicant be released from the alleged illegal

detention/custody.

5 He further submitted that taking cognizance of an offence is

not an elaborate procedure and that it ought not to take so long, as has

happened in the present case. He submitted that once charge-sheet was

filed, it was open for the learned Judge to take cognizance, as the

Magistrate is not required to record any reasons for taking cognizance. He

submitted that the delay by the Court in taking cognizance, as pointed out

by Mr. Venegavkar, learned Prosecutor, cannot be accepted. He further

submitted that reliance placed by Mr. Venegavkar on Suresh Kumar

(supra) and Rahul Pareek (supra) and other judgments, is misplaced, as

the factual matrix of the said cases will not apply to the facts in the present

case and that the said cases are clearly distinguishable. He submitted that 1 2017 (1) WLN 148 2 (1992) 3 SCC 141

SQ Pathan 7/26 APL-507-2021.doc

the observations made by the Apex Court in the case of Suresh Kumar

(supra) have no applicability to the facts of the present case, and that the

case was an exception and hence, the observations were restricted to the

facts in that case. Mr. Ponda submitted that if cognizance is not taken

immediately on filing of the charge-sheet and is postponed, the same would

have disastrous consequences, including violation of Article 21 of the

Constitution. According to the learned senior counsel, the trial Court has no

inherent power of remanding an accused to custody, except as contemplated

by law, by an express provision in the Statute. In this regard, learned senior

counsel relied on the judgment of Natabar Parida vs. State of Orissa3,

Union of India vs. Thamisharasi 4 and A. S. Gauraya vs. S. N. Thakur 5, to

show that the trial Court has no inherent powers and that their powers have

to be strictly traced to some express provision in the Statute. Learned senior

counsel also relied on the Law Commission reports to show that soon after

charge-sheet is filed, it is obligatory on the Court to take cognizance of the

offence and that no such gap is contemplated in law. Thus, in conclusion,

Mr. Ponda submitted that the power of remand under Section 309(2), being

3 (1975) 2 SCC 220 4 (1995) 4 SCC 190 5 (1986) 2 SCC 709

SQ Pathan 8/26 APL-507-2021.doc

only post cognizance and cognizance not having been taken, the remand

orders are illegal and contrary to law and as such, cannot be sustained.

6 Mr. Venegavkar, learned counsel for the respondent-SFIO

submitted that the issues raised in the present application have already been

considered and decided by this Court (Coram : C. V. Bhadang, J.) in

Criminal Application No. LD/VC/OCR/13/2020, in its order dated 5 th May

2020. He submitted that the said order dated 5 th May 2020 was challenged

in the Apex Court and the applicant having withdrawn the said SLP, the

order dated 5th May 2020 had attained finality.

7 Mr. Venegavkar further submitted that the legal position as

contended by Mr. Ponda in the present case, is clearly covered by the

judgment of the Apex Court in Suresh Kumar (supra) and of the Rajasthan

High Court in Rahul Pareek's case (supra). Mr. Venegavkar submitted that

Section 309(2) Cr.P.C would also cover remands made by the Court, post

filing of charge-sheet till cognizance is taken of the offence. He submitted

that after the charge-sheet is filed under Section 167 Cr.P.C, the Court

assumes custody of the accused till cognizance of the offence is taken. He

SQ Pathan 9/26 APL-507-2021.doc

submitted that taking cognizance would mean, "application of mind to the

material filed by the prosecution by way of a complaint/charge-sheet, as the

case may be". According to Mr. Venegavkar, Section 309 applies to an

'inquiry' or 'trial' and that 'inquiry' means whether or not cognizance is to

be taken of the offence. He further submitted that the submission of Mr.

Ponda, that Section 309 is to be exercised only post cognizance is contrary

to the mandate of law and cannot be accepted. He submitted that the

prosecution cannot be faulted for the delay in taking cognizance, inasmuch

as, taking cognizance is a judicial act. He further submitted that not only

has there been change of four judges in the trial Court, since the time

charge-sheet was filed, till date, but even applications have been filed by

various accused, praying therein for adjourning the matter sine-die and as

such, no fault can be found with the prosecution. He submitted that the

prosecution has been vehemently opposing all the applications before the

trial Court.

8 After the aforesaid application was reserved for orders in

January 2022, the respondent-SFIO on 8th February 2022, placed on record

through the Court Sheristedar, the recent judgment of the Apex Court in

SQ Pathan 10/26 APL-507-2021.doc

Serious Fraud Investigation Office vs. Rahul Modi & Ors. 6 Pursuant

thereto, the matter was placed on board on 23rd February 2022, when Mr.

Ponda tendered the applicant's response to the said judgment. According to

the learned senior counsel for the applicant, the judgment in Rahul Modi's

case (Supra) was clearly distinguishable and would not apply to the facts in

hand.

9 Both sides have relied on several judgments in support of their

respective submissions.

10 The short question that arises for consideration in the aforesaid

application is, whether the detention/custody of the applicant i.e. remand

orders are illegal, since the Special Court has not taken cognizance of the

complaint filed by the SFIO, even after filing of the complaint.

11 The ground or premise on which the applicant seeks his

release is that his detention, post filing of complaint, is illegal, as no

cognizance of the complaint filed by the SFIO has been taken by the

6 Cri. Appeal Nos. 185-186/2022 dated 7/2/2022

SQ Pathan 11/26 APL-507-2021.doc

learned Special Judge, till date. It is submitted that all the remand orders

post the complaint are illegal, inasmuch as, there is no provision in law,

post 167 of the Cr.P.C for continuing the remand of an accused in the

absence of the Court taking cognizance of the complaint. According to the

learned senior counsel, remand under Section 309 of the Cr.P.C is possible

only post cognizance and hence, the custody/detention of the applicant

being illegal, the applicant be released forthwith.

12 The relevant provision of Cr.P.C, with which, we are

concerned i.e. 309 Cr.P.C is reproduced hereinunder :

"309. Power to postpone or adjourn proceedings.- (1) In every inquiry or trial, the proceedings shall be continued from day-to- day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:

Provided that when the inquiry or trial relates to an offence under section 376, section 376-A, section 376-AB, section 376-B, section 376-C, section 376-D, section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860), the inquiry or trial shall be completed within a period of two months from the date of filing of the charge sheet.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or

SQ Pathan 12/26 APL-507-2021.doc

adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:

Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.

Provided also that -

(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.

Explanation 1. - If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

SQ Pathan                                                                          13/26
                                                                         APL-507-2021.doc

Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."

13 Section 167 of Cr.P.C spells out the powers of a Magistrate to

authorise detention of an accused in custody. Filing of a charge-sheet, by

itself, does not, in any way, affect/impinge the right, that an accused

otherwise has, under proviso (a) of Section 167(2) of Cr.P.C. Under Section

190 of Cr.P.C, the Magistrate is empowered to take cognizance of offence

or offences reported by the police in the final report filed under Section

173 of the Cr.P.C, after investigation. Therefore, at the stage of filing of

charge-sheet, all that the Magistrate has to do, is to apply his mind to the

facts narrated in the report and the material found in the documents and

come to a conclusion, whether, the material before him would be prima

facie sufficient, to take cognizance. It may not be even incumbent upon the

Magistrate to record reasons, whilst taking cognizance. The power of the

Magistrate to authorize the detention of an accused in custody till/after he

takes cognizance of the offence reported in the final report submitted by the

police, is governed by Section 309 (2) Cr.P.C.

SQ Pathan                                                                           14/26
                                                                           APL-507-2021.doc


            14            Whether or not Section 309 comes into force only post

cognizance/trial; whether there is no provision in law to remand an accused

after filing of charge-sheet and before cognizance is taken under Section

309(2) of Cr.P.C, are the questions that arise for consideration in the

aforesaid application.

15 It is not in dispute that complaint has been filed in the present

case by the prosecution on 30th May 2019. It is also not in dispute that till

date, cognizance has not been taken by the learned Judge of the offence/

offences. The reasons for not taking cognizance will be dealt with, a little

later. The question is, what happens to the remand orders passed in the

interregnum, between filing of charge-sheet and taking cognizance under

Section 309 and whether Section 309 only applies post cognizance as urged

by the learned senior counsel for the applicant.

16 The Court can remand an accused person to custody, under

sub-section (2) of Section 309, pre and post filing of

charge-sheet/complaint. On a plain reading of Section 309, it is evident that

SQ Pathan 15/26 APL-507-2021.doc

the said provision applies to an `inquiry' or `trial'. The question is, when

inquiry commences within the meaning of sub-section (2) of Section 309.

According to Mr Ponda, learned senior counsel for the applicant, the

inquiry will commence only post taking of cognizance, on filing of charge-

sheet/police report/complaint.

17 The issue of `taking cognizance' has been dealt with by the

Supreme Court in a catena of decisions. In a nutshell, the expression

`taking cognizance' means `application of mind'. Though the expression

`cognizance' has not been defined in the Cr.P.C, several decisions to the

effect reveal that taking cognizance does not involve any formal action or

indeed action of any kind, but occurs as soon as the Magistrate applies his

mind to the suspected commission of an offence. Infact, the common

practice is that when a police report is submitted before the Magistrate, it is

not necessary that there has to be a formal order of taking cognizance.

Infact, an inquiry within the meaning of Section 309(2) may commence

before the Magistrate, no sooner than charge-sheet is submitted, so as to

vest him with a power of remand under sub-section (2) of Section 309 of

the Cr.P.C.

SQ Pathan                                                                             16/26
                                                                              APL-507-2021.doc


            18             In this context, it would be apposite to refer to the decision of

the Apex Court in the case of Suresh Kumar (supra). In the said case, the

powers of the Magistrate to remand an accused to judicial custody under

Section 167(2) was considered. In Suresh Kumar (supra), despite the

charge-sheet having been submitted and the Magistrate not having taken

cognizance of the same, yet, the accused was remanded to custody, post

filing of charge-sheet. The arguments of the petitioner in Suresh Kumar

(supra) was, that on filing of charge-sheet, the Magistrate could not have

remanded the accused to custody, without taking cognizance and as the

Magistrate was awaiting sanction to be accorded, the accused therein was

entitled, as a matter of right, to be released on bail. The question that arose

in Suresh Kumar (supra) was whether the remand of accused on

submission of charge-sheet, without taking cognizance, was sustainable in

law. The Apex Court in para 18 of Suresh Kumar (supra) has observed as

under :

"18. ...... The scheme of the CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or

SQ Pathan 17/26 APL-507-2021.doc

judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court."

19 Similar is the situation in the present case. In the instant case,

despite charge-sheet having been filed, no cognizance has been taken of the

same and the learned Magistrate has continued to pass remand orders, post

filing of charge-sheet.

20 In Jeevan Kumar Raut vs. Central Bureau of Investigation 7,

the Supreme Court while interpreting 167(2) of the Cr.P.C in the context of

the Transplantation of Human Organs Act 1994, held in clear terms that

only because the Court itself took time in taking cognizance of the offence,

i.e. after the expiry of the period of 90 days, the same would not mean that

any new right would be created in favour of the appellants therein.

7    (2009) 7 SSC 526

    SQ Pathan                                                                               18/26
                                                                               APL-507-2021.doc


            21           In Rahul Modi's case (Supra), infact, the controversy in

question is now put to rest by the Apex Court, by reiterating what was laid

down in Suresh Kumar (supra). Paras 9 and 10 of the Rahul Modi's case

(Supra) are reproduced hereunder :

"9. The issue is squarely covered by a judgment of this Court in Bhikamchand Jain (supra), as contended by the Appellant. It is necessary to closely examine the judgment passed in Bhikamchand Jain (supra). The petitioner in the said case was arrested on 11.03.2012 on the allegation of misappropriation of amounts meant for development of slums in Jalgaon City. The petitioner therein was accused of committing offences punishable under Sections 120-B, 409, 411, 406, 408, 465, 466, 468, 471, 177 and 109 read with Section 34, IPC and also under Sections 13(1)

(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The contention of the petitioner therein was that he could not have been remanded to custody in view of cognizance not being taken for want of sanction within the statutory period of 90 days. The scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, according to this Court in Bhikamchand Jain (supra).

This Court held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. This Court was of the firm opinion that if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. However, once the charge- sheet was filed within the stipulated period, the right of the accused to statutory bail came to an end and the accused would be entitled to pray for regular bail on merits. It was held by this Court that the filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167. The scheme of CrPC is such that

SQ Pathan 19/26 APL-507-2021.doc

once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2). Acknowledging the fact that an accused has to remain in custody of some court, this Court concluded that on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court."

"10. It is clear from the judgment of this Court in Bhikamchand Jain (supra) that filing of a charge-sheet is sufficient compliance with the provisions of Section 167 CrPC and that an accused cannot demand release on default bail under Section 167(2) on the ground that cognizance has not been taken before the expiry of 60 days. The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken. The conclusion of the High Court that the accused cannot be remanded beyond the period of 60 days under Section 167 and that further remand could only be at the post-cognizance stage, is not correct in view of the judgment of this Court in Bhikamchand Jain (supra)."

(Emphasis supplied)

22 Considering the aforesaid legal pronouncements and what is

stated hereinabove, the submissions advanced by the learned senior counsel

for the applicant, being devoid of merit, would have to be rejected.

SQ Pathan                                                                                 20/26
                                                                          APL-507-2021.doc


            23          What was disturbing to note during the course of arguments,

was that though the complaint in the said case was filed on 30th May 2019,

however till date, cognizance of the complaint has not been taken by the

learned Special Judge. On 14th January, 2022, during the course of

arguments, when Mr. Venegavkar, learned counsel for the respondent No.1

was asked why cognizance of the criminal complaint bearing No. 20/2019

was not taken till date by the learned Special Court, Greater Bombay,

learned counsel sought time to take instructions and place on record the

reasons for the same. Accordingly, Mr. Venegavkar had tendered a

compilation of documents and a note setting out the reasons for delay by

the learned Special Judge in taking cognizance. The said compilation is

taken on record vide order dated 18th January 2022.

24 From the said note, it transpires that after completing

investigation into the affairs of IFIN, criminal complaint bearing

No.20/2019 was filed before the learned Special Judge, 37 th Sessions Court

at Mumbai on 30th May 2019 before Shri Nitin Jiwane, the learned

Presiding Officer at the relevant time. It appears that thereafter, Mr. Jiwane

was transferred before the next date of hearing and a new Judge Shri S. T.

SQ Pathan                                                                            21/26
                                                                        APL-507-2021.doc

Soor presided over the Court before whom the matter was posted on 7th

June 2019 for the first time and after hearing the matter for some time, the

matter was adjourned to 18th June 2019. It appears that in the meantime,

accused No. 7 and subsequently accused No. 3-Hari Sankaran (present

applicant) filed bail application on 12 th June 2019 and 4th July 2019

respectively. Replies to these applications were filed on the very next date

i.e. on 19th June 2019 and 20th July 2019 respectively. The learned Special

Judge heard the applications and passed orders in said bail applications on

3rd October 2019. Subsequently, the matter was listed on 18 th October 2019,

8th November 2019, 27th November 2019, 11th December 2019, 10th January

2020 and 24th January 2020 and arguments on cognizance and other

applications filed by accused on these dates were heard by the learned

Special Court.

The learned Presiding Officer of the trial Court was transferred

and the learned Judge Smt. S. S. Sawant, was appointed as the Presiding

Officer of the Court. The matter was then listed and heard by the said

learned Judge on 6th February 2020 and 21st February 2020 for cognizance

and other applications but learned Judge was again transferred before the

next date of hearing i.e. 4th March 2020.

SQ Pathan                                                                          22/26
                                                                           APL-507-2021.doc

On 4th March 2020, since the Court was vacant, the matter was

adjourned to 17th March 2020. The matter could not be heard on 17th March

2020, as the new Presiding Officer, Shri S. N. Yadav, who had taken charge,

was hearing only urgent matters, due to COVID-19 pandemic. It appears

that pursuant to the SOP issued by the High Court, on account of COVID-

19, the matter could not be heard from 21 st March 2020 to 21st September

2020.

On 21st September 2020, 3rd October 2020 and 5th October

2020, the matter was heard on cognizance and was posted for further

hearing on cognizance, on 13th October 2020.

It appears that on 13th October 2020, proposed accused No.13

had filed an application, praying therein that "the matter be adjourned

sine-die, pending final hearing of the proceedings of Hon'ble Supreme

Court." The matter was thereafter listed on 31 st October 2020, 27th

November 2020 and 14th December 2020, however, the same could not be

heard on the said dates, as the learned Judge was on leave.

Thereafter, Shri S. N. Yadav was transferred and another

Presiding Officer Shri R. V. Kokare had taken the charge. On 7th January

SQ Pathan 23/26 APL-507-2021.doc

2021, reply to the application filed by proposed accused No. 13 was filed

by the complainant and the matter was adjourned for arguments on the said

application on 8th February 2021. Thereafter, the matter was listed on 8th

February 2021 and 9th February 2021 for arguments, however, the

arguments could not be advanced, as the learned senior counsel appearing

for proposed accused No. 13 sought permission to argue the matter through

video-conferencing.

On 30th April 2021 and 6th May 2021, the matter could not be

heard in view of the SOP issued by the High Court due to prevalent

conditions of COVID-19.

In the interregnum, the Presiding Officer Shri R. V. Kokare

was transferred and Shri R. M. Sadrani, learned Judge took charge as the

Presiding Officer of the said Court.

It appears that the matter was listed on 6 th July, 30th July, 6th

August, 2nd September, 28th September and 29th October 2021, however, the

hearing could not proceed further, as the learned senior counsel appearing

for accused No. 13 insisted for hearing through video-conferencing.

SQ Pathan                                                                            24/26
                                                                         APL-507-2021.doc

Learned senior counsel appearing on behalf of the accused

No.13, argued the matter on 29th November and 16th December 2021 and

the matter was posted for further arguments on 18th January 2022.

25 Whether or not to take cognizance of an offence/offences, is a

decision to be taken by the concerned Court before whom the

complaint/charge-sheet is filed. An accused has no right to be heard before

taking of cognizance, except as provided under Section 167(2) of Cr.P.C.

It appears from the Roznama that on several dates, it is at the behest of the

accused (non-applicant) that the matter was adjourned, as the said accused

had raised an objection to taking cognizance of the complaint. It is under

these circumstances, that till date cognizance has not been taken by the

Court. Cognizance of any complaint has to be taken expeditiously and the

accused has no right to be heard at the pre-cognizance stage, except as

provided by Cr.P.C.

26 In the present case, prima facie, it appears that the accused

(non-applicant) in the said case, have been protracting the proceedings. It

is always open to an accused to challenge the cognizance taken by the

SQ Pathan 25/26 APL-507-2021.doc

Court, in the event, cognizance is taken by the Court. No doubt,

cognizance has to be taken at the earliest, as soon as the the

complaint/charge-sheet is filed, ofcourse, unless there are inevitable

circumstances resulting in delay in taking cognizance. Considering that the

complaint is pending at the pre-cognizance stage from 30th May 2019, the

trial Court is directed to decide the issue of cognizance as expeditiously as

possible.

27 Accordingly, the application stands dismissed with the

aforesaid observations/directions.

28 A copy of this order be forwarded by the Registry to the

learned Additional Sessions Judge, Court Room No. 37, City Civil &

Sessions Court, Greater Bombay, who is seized of the Company Petition

No. 20/2019, either by fax/e-mail.

29 All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.

SQ Pathan                                                                           26/26