Sajjan Kumar Garg vs Union Of India
2023 Latest Caselaw 6756 Cal

               IN THE HIGH COURT AT CALCUTTA
              CRIMINAL REVISIONAL JURISDICTION
                       APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                           C.R.R 2331 of 2018
                           Sajjan Kumar Garg
                                   Vs.
                             Union of India

For the petitioners                 :       Mr. Sandipan Ganguly
                                    :       Mr. Dipanjan Dutt
                                    :       Mr. Sayantak Das



For Union Of India                  :       Mr. Smrajit Roy Chowdhury

Heard on                            :       22.09.2023

Judgment on                         :       05.10.2023


Ajoy Kumar Mukherjee, J.

1. This is an application under section 482 of the Code of Criminal

Procedure 1973 (herein after called as Cr.P.C) wherein petitioner has prayed

for quashing of the proceeding of the complaint case no 789 of 2018 pending

before the court of learned Chief Judicial Magistrate, Alipore, south 24

parganas and all orders passed in the said proceeding. Petitioner contended

that the complainant/opposite party herein filed complaint alleging

commission of offence by the petitioner and one Jibendra Mishra punishable

under section 120 B of the Indian Penal code (in short IPC) along with

section 277A of the Income Text Act 1961 (in short I.T. Act 1961) and

against eleven other companies punishable under section 120B of the IPC

with Section 277A /278B of the I.T. Act 1961.

2. The allegations levelled in the said complaint are interalia to the effect

that a survey was conducted at the office premises no. 33/1 N.S. Road,

Kolkata-1 on 12.11.2013 where the statement of the petitioner was recorded

under section 131 of the I.T. Act, 1961. Another statement of the petitioner

was recorded on 30.04.2014. It is alleged that in both the statements the

petitioner admitted that he had provided accommodation entries in the form

of share capital, share premium and unsecured loan to the Doller Group of

Industries through shell companies managed by him with the help of one

Jibendra Mishra whose statement was also recorded on 18.11.2013. It is

further alleged that from the statements of the petitioner, it appeared that

five companies of the Doller Group have raised share capital/premium

during the financial year 2010-11 and 2011-12. It is further alleged that

some of the allottees are the shell entities being managed by the petitioner

and it has been accepted by the petitioner in the aforesaid recorded

statements. Accordingly complainant alleged that the petitioner herein and

the said Jibendra Mishra have committed the offence punishable under

section 120B of the IPC with Section 277A of the I.T. Act 1961 and the other

11 companies have committed offence punishable under Section 120B of the

IPC with section 277A/278B of the IT Act 1961.

3. Mr. Sandipan Ganguly learned counsel appearing on the behalf of the

petitioner submits that the petitioner is completely innocent and he is no

way connected with the commission of alleged offence and has been falsely

implicated in the instant case. He further contended that the impugned

proceeding initiated at the instance of the opposite party which does not

disclose the ingredients of the offence as alleged and learned Court below

was not justified in passing the order impugned. He further contended that

the offence under section 277A of the Income Text Act 1961 is made

punishable with impressment for a term which shall not be less than 3

months but which may extend to 3 years and fine. Section 468 of the Cr.P.C

provides that no court shall takes cognizance of an offence after the expiry of

the period of limitation and the period of limitation shall be 3 years if the

offence is punishable with imprisonment for a term exceeding one year but

not exceeding three years. Section 469(1) (a) of the Cr.P.C. provides that the

period of limitation shall commence on the date of the offence.

4. Mr. Ganguly further submits that in the instant case the statement of

the petitioner was recorded on oath on 12.11.2013 and on 30.04.2014. Thus

in terms of section 469(1)(a) of the Cr.P.C the period of limitation commence

on an from 12.11.2013 and 30.04.2014. Accordingly such period of

limitation expired upon the passage of three years therefrom in the month of

November 2016 and April 2017. However the instant complaint has been

filed on 21.03.2018 i.e. long after the expiry of the prescribed period of

limitation and the Magistrate ought not to have taken cognizance on the

alleged offences which is barred by law. Therefore the continuance of further

proceeding will be an abuse of the process of law. As such the petitioner has

prayed for quashing the entire proceeding.

5. Before going to further details let me quote the order impugned passed

by learned Chief Judicial Magistrate at Alipore, being order no. 1 dated

28.03.2018 and the next order that is order dated 10.05.2018.

"Order No.1 Dated 28.03.2018:- A petition of Complaint is filed u/s 200 Cr.P.C Heard Ld. Advocate for the complaint.

Perused the petition of complaint. Considered. Cognizance is taken.

Let the case be taken to file my personal file for disposal in accordance with law. Fixing 10.05.18 for S/R.

Sd/Illegible, C.J.M Alipore Order dt. 10.05.2018:- today is fixed for S.R and appearance, complaint files hazira.

Accused no.1 & 2 namely Sajjan Kumar Garg and Jivendra Mishra appear by filing vakalatnama and prays for bail.

Separate petitions have been filed on behalf of the accused no. 3 to 13 with an undertaking to file petitions u/s 305 Cr.P.C Vakalatnama has been filed on their behalf.

Perused the bail application, petition of complaint as well as other materials available on record.

Considering the nature of the proceeding and all such facts and voluntary surrender of the accused persons, prayer for bail is considered and allowed.

The accused persons may find bail of Rs. 1,000/- each with one registered surety of like amount in-default to judicial custody till 18.05.2018. If the accused persons avail bail, they are directed to appear before this court on 18.8.2018 for appearance and taking steps by the accused no.3 to 13.

Sd/- Illegible, C.J.M Alipore Later:- Bail bonds are furnished by the registered surety on behalf of the two accused persons namely Sajjan Kumar Garg and Jivendra Mishra.

Let the bail bonds be accepted.

To. 18.8.2018 for appearance Sd/- Illegible, C.J.M Alipore"

6. From the aforesaid orders it is clear that no observation was

made by the Magistrate as to whether the complaint constitute any

offence or not and if constitutes offence then under which provision of

law, such offence is punishable nor there is anything to suggest that

the magistrate concerned had at all applied his judicial mind while

taking cognizance and passing order no. 1 dated 28.03.2018. There is

nothing in the said order that Magistrate had at all ordered to issue

any process under section 204 of Cr.P.C nor there is anything to

suggest that the Magistrate was satisfied that there are sufficient

grounds for proceeding and/or proceeding is required to be

commenced against the accused by compelling his attendance before

the court. There is nothing to show that Magistrate at all perused the

relevant materials including alleged recorded statement of accused

dated 12.11.2013 and 30.04.2014 to ascertain that there are grounds

to proceed and that the complaint is not barred by any law.

7. It may not be out of context to reiterate that chapter XIV of the

Cr.P.C. is under the heading "conditions requisite for initiation of

proceedings" and the opening section i.e. Section 190 deals with

"cognizance of offence by Magistrates". Accordingly it is to be

remembered that taking cognizance of an offence by a Magistrate is a

judicial act. Cognizance can be said to be taken when Magistrate

applies his judicial mind for proceeding under section 200 of Cr.P.C.

Necessity for application of judicial mind in it's proper perspective also

evident from the words used in section 190 which is "may take

cognizance". However at the time of taking cognizance, Magistrate is

only to consider the averments made in the complaint and he is not

supposed to appreciate evidence at the time of taking cognizance.

8. Be that as it may, from the next order i.e. order dated

10.05.2018, it appears that accused no. 1 and 2 on receipt of summon,

appeared before the court and prayed for bail. It is true that under

section 200 proviso (a) it is not necessary for Magistrate to examine the

complainant when the complaint is made by a public servant acting or

purporting to act in the discharge of his official duties. This does not

mean that in such cases while taking cognizance and while Magistrate

intends to proceed by using process in terms of Section 204 of the

Cr.P.C, there is no requirement to ascertain whether allegations prima

facie constitute offence or not and whether accused is prima facie

responsible for causing the offence or not. Even where the complainant

is a public servant, still magistrate is duty bound to find out whether

there is or nor sufficient ground for proceeding. The magistrate cannot

exercise his jurisdiction either in respect of taking cognizance or in

respect of issuance of process in a routine manner but he is required to

apply his mind, though examination of complainant has been

dispensed with. Even in such cases, the magistrate has to carefully

scrutinize evidence brought on record to find out the truthfulness as

well as legality and validity of the allegation and to examine if any

offence is prima facie committed by all or any of the accused. It was

never the intention of the legislature that whenever a complaint has

been lodged by a Public Servant the Magistrate has no other alternative

but to act like a postal authority in the matter of issuance of process.

9. It is trite law that the Magistrate while issuing the process under

Section 204 of the Cr.P.C. must in brief set out the allegations in the

petition of complaint and the materials brought on record and must

state that in his opinion, process should be issued. The court is to see

whether prima facie case is established and ingredients of offence can

be culled out from the complaint and only when there is a strong

suspicion which leads the court to think that there is ground for

presuming that the accused has committed an offence, process should

be issued, even in cases under section 200 proviso (a) of Cr.P.C.

10. It is well settled principle of law in view of judicial

pronouncements that in case of a complaint under section 200 Cr.P.C.

the Magistrate can take cognizance of the offence if made out and then

to ascertain whether a prima facie case is made out against the

accused to issue the process, so that the issue of process is prevented

on a complaint which is either false or vexatious or intended only to

harass. For such purpose the words "sufficient ground" used under

Section 203 Cr.P.C. have to be construed to mean the satisfaction that

a prima facie case is made out against the accused and not sufficient

ground for the purpose of conviction.

11. Considering the present fact and circumstance of the case and that

there is no reflection in the order impugned that concerned magistrate had

at all applied his judicial mind to determine as to whether there are

grounds for proceeding and for issuance of process and surprisingly

without any order of issuance of process by the Magistrate, process was

served upon the accused, who appeared and prayed for bail, which clearly

reflects non application of judicial mind by Magistrate and noncompliance

of relevant provisions of Cr.P.C.

12. The orders impugned being order no. 1 dated 28.03.2018 and also

subsequent orders passed in aforesaid complaint case no. 789 of 2018, by

learned Chief Judicial Magistrate, Alipore (Union of India Vs. Sri Sajjan

Garg and 12 others) are hereby set aside. Learned Magistrate is directed to

apply his judicial mind afresh on the complaint lodged by opposite party

herein on the point of taking cognizance and if required on the point of

issuance of process and to pass appropriate order taking aid from the

relevant provisions laid down in chapter XIV and if required under relevant

provision of subsequent chapters of Cr.P.C, without being influenced by

any observation made herein.

13. C.R.R. 2331 of 2018 is according disposed of.

Urgent Photostat certified copy of this judgment, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)