Kar HC | Whether Magistrate is required to give elaborate reasons for taking cognizance and summoning the accused in view of report under S. 173 CrPC? Legal position discussed

Karnataka High Court: Michael Cunha J., dismissed the writ petition being found that the criminal action was rightly initiated against the petitioner.

This instant petition was filed under Article 226 and 227 of Constitution of India read with Section 482 of Criminal Procedure Code, 1973 seeking to quash the charge sheet and the entire proceedings pending before XXIII Additional City Civil and Sessions Judge and Special Judge for Prevention of Corruption Act, Bangaluru City on the grounds that the impugned order suffers from serious illegality as the impugned order of cognizance indicate total non-application of mind and hence is prayed for quashing of it.

Issue 1: Whether the prosecution of petitioner was done in his personal capacity?

Counsel for the petitioners submitted that the allegations leveled in the charge sheet are directed against the firm whereas the charge sheet does not disclose the active role of the petitioner except that he was representing the Company as the Managing Partner and hence prosecution of the petitioner without making the firm as accused is legally untenable and liable to be quashed.

Counsel for the respondents submitted that the allegations made in the complaint indicate that all the affairs of the firm were conducted by the petitioner and he was the face and mind of the Firm and therefore by application of Section 23 of the Mines and Minerals (Development and Regulation) Act, 1957 i.e MMDR Act, he alone could be proceeded and it is for the petitioner to demonstrate at trial that alleged offences were not within his knowledge and that he was not responsible for the day to day affairs of the Firm when the alleged offences were committed.

The Court after perusing all the records stated that the allegations are directed only against the firm and not against the petitioner in his personal capacity. On the other hand, the Firm itself being the offender, vicarious liability could be imputed to the petitioner by virtue of the statutory provision contained in Section 23 of MMDR Act which provides that when an offence is committed by a Company, every person, who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the Company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Issue 2: Whether the order of taking cognizance and issuing summons is valid or not?

 Counsel for the petitioners submitted that the impugned order does not specify the offences in respect of which cognizance has been taken by the Special Court. It was further submitted that there is no clarity as to whether the cognizance was taken under the Penal Code, 1860 or MMDR Act.

The court observed that the very fact that the petitioner moved for bail based on the offences mentioned in the summons, it is clear that right from the inception, the petitioner was aware of the offences for which summons was issued to him and hence the objection raised by the petitioners has no ground.

The Court relied on the judgment R.R. Chari v. State of U.P., (1963) 1 SCR 121 wherein was stated that “The word ‘cognizance was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings.” and observed that Special Judge has taken cognizance under Section 190(1) (a) of CrPC and has thus proceeded to issue summons to the petitioner. Hence it is amply clear that Special Judge has taken cognizance of IPC offences as well as the offences under the provisions of Forest Rules and MMDR Act. It is also settled law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 CrPC, recording elaborate reasons is not required provided if sufficient grounds for proceeding against the accused has been satisfied.

It was also observed that in respect of the offences under the provisions of MMDR Act are concerned; Section 22 of the Act creates a restriction on the courts in taking cognizance of the offences under the Act.  The Section reads as under

“22. Cognizance of offences- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.”

The Court observed that to get over this restriction, the respondent have filed a complaint in the proceedings before the Special Court in terms of Section 22 of the MMDR Act. This complaint thus amounts to due compliance of the statutory requirement prescribed in Section 22 of the MMDR Act.

Issue 3: Will filing of the complaint as stipulated under Section 22 of MMDR Act for Special Court to take cognizance of offence be considered valid?

 Counsel for the petitioner submitted that the impugned order of cognizance does not reflect that the Special Judge has looked into the averments made in the complaint yet.

The Court observed that the allegations made in the complaint as well as the facts constituting the offences alleged against the petitioner in the final report filed by the SIT are one and the same. Hence, if the Special Judge has looked into the final report by SIT and on satisfying himself that the allegations prima facie discloses the commission of offences by the petitioner under IPC as well MMDR Act, it is clear that the Special Judge has taken cognizance of the offences in terms of Section 22 of MMDR Act.

The court also relied on judgments Kanwar Pal Singh v. State of U.P. and observed that non-recording the reasons while issuing summons cannot be a reason to set aside the orders of cognizance and the summons issued to the petitioner.

The Court thus found no illegality in the impugned order and all the arguments stood no ground. The allegations made are duly supported by SIT and make out the ingredients of the offence under Sections 409, 420 of IPC and Sections 21 read with 4(1)(a) of MMDR Act, 1957.

In view of the above, the contentions by the petitioners are rejected and writ petition was dismissed.[Syed Ahmed v. State, WP No. 51101 of 2015, decided by 19-11-2020]


Arunima Bose, Editorial Assistant has put this story together

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