Shri Deepak Gupta vs Central Bureau Of Investigation
2010 Latest Caselaw 3297 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of Reserve: 9th July, 2010
                                                      Date of Order: 15th July, 2010
+ Crl.M.C.No. 1825/2009
%                                                                 15.07.2010

        Shri Deepak Gupta                               ... Petitioner
                                     Through: Mr. Jagdeep Kumar, Advocate

                Versus


        Central Bureau of Investigation               ... Respondents
                                  Through: Mr. Harish Gulati, Advocate


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not?                                      Yes.

3. Whether judgment should be reported in Digest?                              Yes.

JUDGMENT

This petition under Section 482 Cr.P.C. has been filed by the

petitioner with a prayer that the Court should set aside the summoning order

dated 20th October, 2008 passed by Chief Metropolitan Magistrate and should

quash the charge-sheet filed by the respondent under Section 173 Cr.P.C. after

completing the investigation in an FIR registered under Section 420, 471 read

with Section 468 IPC .

2. The petition under Section 482 Cr.P.C. for quashing of order taking

cognizance and quashing of charge-sheet filed by the respondent is grossly

misconceived. FIR in this case was filed in January, 2005 and CBI was directed

to do the investigation. CBI after completing investigation filed charge-sheet

against the petitioner and some of the accused persons, before the Court of

CMM. Court of CMM vide order dated 20th October, 2008 took cognizance of the

offence and observed that the investigation conducted in this case disclosed

commission of offence under Section 420/468/471 IPC against the accused and

directed for summoning of the accused.

3. Cognizance of the offence is taken by Magistrate under Section

190 Cr.P.C. which falls under Chapter 14 of Code of Criminal Procedure

[Conditions Requisite for Initiation of Criminal Proceeding]. A Magistrate, who

receives a charge-sheet after completion of investigation from the investigating

agency, has a legal duty to scrutinize the charge-sheet and see if a commission

of offence was disclosed from the charge-sheet and in case commission of

offence was disclosed, the Magistrate is bound to take cognizance of the offence.

The expression "cognizance of offence" in its broad sense means taking notice of

the offence. Once notice of the offence is taken, the Magistrate has to initiate

judicial proceedings against the offender in respect of that offence. At the stage

of taking notice of cognizance of the offence, a magistrate is not required to

undertake an elaborate inquiry and is not supposed to pass a detailed reasoned

order as what was the evidence disclosed in the charge-sheet about commission

of offence and what evidence was there in respect of different accused persons.

This scrutiny of offence is done by the Magistrate later on after taking cognizance

and after summoning of the accused persons. The order passed by the learned

Magistrate of taking cognizance cannot be challenged on the ground that there

was not sufficient evidence against the accused for his summoning. The

accused after summoning is provided with a copy of the charge-sheet and then

comes the stage of framing notice or charge and at the time of framing notice/

charge, the accused is heard and scrutiny of evidence, as disclosed in the

charge-sheet against the accused, is done by the Magistrate and if it is found that

there was sufficient material to frame charge against the accused then only

charge is framed. Merely because the accused has been summoned after taking

cognizance would not give right to the accused to assail the order of summoning

on the ground that there was not sufficient material for summoning of accused

disclosed in the charge-sheet. A Writ Petition or a Petition under Section 482

Cr.P.C. would not lie for assailing a summoning order.

4. Similarly, a charge-sheet is result of investigation done by the

police or investigating agency. If the police/investigating agency after taking

cognizance of the offence had investigated the offence and collected evidence in

respect of commission of the offence and filed the same before the Court, there is

no provision under Code of Criminal Procedure by which charge-sheet can be

quashed. The report of investigation under Section 173 Cr.P.C. nomenclatured

as "Charge-sheet" cannot be quashed. It is different thing that the trial Court may

charge an accused or discharge the accused after considering the evidence

collected by the police and it is different thing to quash the charge-sheet itself.

Under Section 482 Cr.P.C. or Article 226 of the Constitution of India, the Court

cannot quash the result of investigation i.e. charge-sheet except under

exceptional circumstances where investigation is a deliberate and mala fide

attempt to shield the accused. Even in such a case Court has to handover

investigation to an independent agency requiring proper and fair investigation.

However, when an accused is charged by the competent court on the basis of

charge-sheet, the accused has a right to assail the order on charge, but accused

has no right to come to the Court with a prayer that the charge-sheet itself should

be quashed. I find no reason to entertain this petition. The petition is hereby

dismissed.

July 15, 2010                              SHIV NARAYAN DHINGRA, J.
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