Mohan Lal & Anr. vs State Thr. Cbi
2013 Latest Caselaw 3258 Del

$-
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       DECIDED ON : 29th JULY, 2013

+             CRL.M.C. 932/2012 & CRL.M.A. 3263/2012

       MOHAN LAL & ANR.                                   ..... Petitioners
                          Through :    Mr. R.P.Shukla, Advocate.
                          versus
       STATE THR. CBI                                     ..... Respondent

                          Through :    Ms.Sonia Mathur, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. Present petition under Section 482 Cr.P.C. has been preferred

to quash proceedings in Complaint Case No. 13/2006 titled „CBI vs.

B.N.Dhawan & Ors.‟. It is contested by CBI. I have heard the learned

counsel for the parties and have examined the Trial Court record minutely.

RC DST/2005/S/0008 was registered in STF, CBI on 14.12.2005 against

officials of Registrar Co-operative Housing Societies, Govt. of NCT Delhi

and Ors. Enquiries were made in PE No. 4(E) 2005/EOW-1/Delhi dated

08.08.2005 in compliance of the orders of this Court in Crl.Writ Petition

No. 10066/2004. After completion of investigation, a charge-sheet under

Section 120B read with Section 420/468/471 IPC and Section 13 (2) read

with Section 13 (1)(d) of PC Act was filed in the Court of Sh.Sunil Gaur,

the then Spl.Judge, CBI against the petitioners and five others. The

petitioners have raised a legal question "whether the cognizance taken on

remand application would be considered as cognizance taken in this case".

Petitioners‟ counsel urged that after the filing of the charge-sheet on

14.11.2006 before Sh. Sunil Gaur, Spl. Judge, CBI, the case was assigned

on the same day to the Court of Sh.G.P.Mittal, the then Spl.Judge, CBI

where FIR in question was pending. No cognizance was taken by the

Court of Sh. Sunil Gaur that time. On 15.11.2006, it was mentioned in the

order-sheet that Sh.Sunil Gaur had already taken cognizance of the case.

The trial of the case proceeded in the absence of cognizance i.e. judicial

application of mind of the documents, contents of the charge-sheet and

FIR. Documents and statements of the witnesses under Section 161

Cr.P.C. were produced in the Court of Sh.G.P.Mittal, Spl.Judge, CBI on

16.11.2006. It was clear that there was no material before the Court prior

to 16.11.2006 to take cognizance. He further urged that taking cognizance

is not an empty formality and it requires utmost application of mind. Once

a charge-sheet is filed under Section 173 Cr.P.C. all the documents

including statements of the witnesses recorded under Section 161 Cr.P.C.

and other documents attached therewith are required to be scrutinized

before the Magistrate forms his opinion whether the offence was made out

or not. In the instant case, no such cognizance was taken either by

Sh.Sunil Gaur or Sh.G.P.Mittal at any stage as none of them applied

judicial mind. Under Section 461 Cr.P.C. the entire proceedings are void

and without jurisdiction and are liable to be quashed. Reliance was placed

upon „Ajit Kumar vs. State of W.B.(Ayyanagar J)‟, AIR 1963 SC 765;

„State of Karnataka vs. Pastor P.Raju‟, AIR 2006 SC 2825; „Jagdish Ram

vs. State of Rajasthan‟, AIR 2004 SC 1734; „Bhushan Kumar & anr. Vs.

State (NCT of Delhi) and anr.‟, 2012 (5) SC 424; „Dharmatma Singh vs.

Harminder Singh and Others‟, 2011 (6) SCC 102 & „R.R.Chari vs. The

State of Uttar Pradesh‟, AIR 1951 SC 207.

2. Counsel for CBI urged that on 14.11.2006, the Investigating

Officer had moved an application for extension of judicial remand of the

accused in custody. Sh.Sunil Gaur, Spl.Judge, CBI, on remand application

took cognizance. Since the FIR was pending in the Court of

Sh.G.P.Mittal, Spl.Judge, CBI the case was assigned to that Court. On

14.06.2007, after hearing the petitioners and others, charge was ordered to

be framed against them. The trial of the case has reached at a crucial

stage. CBI has already examined its witnesses. Statements of the accused

persons have been recorded under Section 313 Cr.P.C. Intention to file the

petition is to delay the trial.

3. I have considered the submissions of the parties and have

gone through the citations on record. It is not disputed that FIR (Ex.PW-

46/A) was lodged in compliance of the order of this Court in Criminal

Writ Petition No. 10066/2004 on 02.08.2005. The investigation continued

thereafter and on its completion, a charge-sheet was filed against the

petitioners and five others on 14.11.2006 in the Court of Sh. Sunil Gaur,

Spl.Judge, CBI. The case was assigned to the Court of Sh.G.P.Mittal,

Spl.Judge, CBI, Delhi on 14.11.2006 itself as the FIR in question was

pending in the said Court. Apparently, at that stage of mere assignment of

the case to the Court of Sh.G.P.Mittal, there was no application of judicial

mind and Sh.Sunil Gaur had not taken cognizance. However, when CBI

sought extension of judicial remand of the accused who were in custody

and moved an application for that purpose in the Court of Sh.G.P.Mittal,

Spl.Judge, it revealed that Presiding Officer was on half day leave (second

half). Again, the matter went to the Court of Sh.Sunil Gaur, Spl.Judge,

CBI and a report was called. It was informed that Sh.G.P.Mittal,

Spl.Judge was on half day leave. At this stage, Sh. Sunil Gaur, Spl.Judge,

CBI passed a detailed order dated 14.11.2006 which reads as under :

"14.11.2006 Present : Shri Rajesh Malhotra, Sr.P.P. for CBI alongwith Inspector Sunil Singh Rawat (IO). All the four accused persons produced in custody.

This is an application for JC remand. Cognizance has been taken and since the FIR is pending in the court of Shri G.P.Mittal, Ld.Special Judge, therefore, the challan has already been sent to that court. Let the IO is directed to produce the accused persons before the court of Shri G.P.Mittal, ld.Special Judge, Delhi tomorrow.

Sd/-

SUNIL GAUR Special Judge CBI Delhi.

14.11.2006"

4. From the contents of the order, it is crystal clear that while

considering the request of the CBI for sending the accused (in custody) to

judicial remand, Sh.Sunil Gaur, Special Judge had applied judicial mind

and before ordering the Investigating Officer to produce them before the

Court of Sh.G.P.Mittal the next day, „cognizance‟ was taken. It was

specifically mentioned in the order "cognizance has been taken". In the

absence of cognizance, Sh.Sunil Gaur, Spl.Judge, CBI could not have

dealt with the judicial custody remand application and direct to produce

them before the Court of Sh.G.P.Mittal next day. When the matter came

up before the Court of Sh.G.P.Mittal, the next day, it was recorded that

Sh.Sunil Gaur had already taken the cognizance on 15.11.2006. Copies of

the documents were supplied to A-4 to A-7. Sri Chand and Anna

Wankhede were directed to be produced by issuance of production

warrants. Summons were also issued to accused B.N.Dhawan, who was

not arrested. Bail applications were taken on record and fixed for disposal

for 16.11.2006. None of the accused raised any objection or challenged

the cognizance taken by Sh.Sunil Gaur. In fact, at no stage, prior to

moving the application in January, 2012, none of the accused ever

claimed that the trial was vitiated for want of valid cognizance either by

Sh.Sunil Gaur or Sh.G.P.Mittal. All the accused actively participated in all

the proceedings throughout with their counsel. The prosecution has

already examined all the witnesses. Statements of the accused persons

have been recorded under Section 313 Cr.P.C. Some defence witnesses

have also been examined. The petitioners did not offer any explanation for

inordinate delay in filing the present petition for quashing of the

proceedings when they were aware that order-sheets dated 14.11.2006 and

15.11.2006 specifically recorded that cognizance of the case has been

taken. There was no illegality when the Court of Sh.Sunil Gaur took

cognizance of the case on the application seeking judicial custody remand

of the accused in custody on 14.11.2006. The peculiar facts of the case

were that when the charge-sheet was filed in the Court of Sh.Sunil Gaur, it

was assigned to the Court of Sh.G.P.Mittal where FIR in question was

pending. Had Sh.G.P.Mittal been on duty, the cognizance could have been

taken by him and the custody remand of the accused could have been

extended. However, Sh.G.P.Mittal was on leave after lunch and there was

none else to extend the custody remand, the matter again came before

Sh.Sunil Gaur who could not have dealt with the application without

taking cognizance of the offence after the filing of the charge-sheet. For

technical irregularity, the entire proceedings culminating into defence

evidence cannot be quashed when at no stage prior to January, 2012, the

petitioners or other accused challenged the cognizance. In „Rattiram and

ors. Vs. State of Madhya Pradesh‟, 2012 (4) SCC 516, the Supreme Court

has held that trial would only be vitiated if the failure of justice has in fact

been occasioned thereby or the accused can establish that he has been

prejudiced thereby. In the said case, there was irregularity in committal

proceedings and the cognizance was taken by Sessions Court without

commitment of the case by the Magistrate in accordance with Section 193.

In the instant case also, nothing has been brought on record if any

prejudice was caused to the petitioners due to taking of cognizance on

remand application which was part and parcel of the charge-sheet. The

Trial Court in the order dated 17.02.2012 has given detailed reasons while

dismissing the applications dated 06.01.2012 and 20.01.2012 filed by the

petitioners - Mohan Lal and Sri Chand. I find no illegality or irregularity

in the reasoning recorded by the Trial Court.

5. The present petition is unmerited and is dismissed.

Application stands disposed of. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE JULY 29, 2013/tr