Calcutta High Court: In an application filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), seeking the quashing of proceedings in complaint case pending before the Chief Judicial Magistrate, as well as all orders passed in that proceeding, a single-judge bench comprising of Ajoy Kumar Mukherjee,* J., held that the impugned orders passed by the Chief Judicial Magistrate did not reflect the application of judicial mind to determine whether there were sufficient grounds for proceeding and issuing process and thereby set aside the same.
Factual Matrix
The petitioner preferred an application under Section 482 of the CrPC seeking the quashing of proceedings in complaint case pending before the Chief Judicial Magistrate in Alipore, South 24 Parganas. The complaint was filed by the opposite party, alleging offenses under Section 120-B of the Penal Code, 1860 (IPC) and Section 277-A of the Income Tax Act, 1961 (the Act, 1961). The complaint also accused eleven other companies of offenses under Section 120-B of the IPC along with Sections 277-A and 278-B of the Act, 1961.
The allegations in the complaint revolve around a survey conducted at an office premises in Kolkata on12-11-2013, where the petitioner’s statement was recorded under Section 131 of the Act, 1961. It was alleged that the petitioner provided accommodation entries to Doller Group of Industries through shell companies managed by him. It was further alleged that certain companies of the Doller Group raised share capital/premium during the financial years 2010-11 and 2011-12 through these shell entities.
Moot Point
Whether the complaint filed against the accused, including the petitioner, justifies the initiation of proceedings, considering the alleged violations of the IPC and the Act, 1961?
Contentions
The petitioner contended that he is innocent and falsely implicated. The petitioner further contended that the complaint is barred by the period of limitation under Section 468 of the CrPC. The petitioner pointed out that the statements in question were recorded on 12-11-2013, and 30-04-2014. Therefore, the period of limitation commenced on these dates, and it expired in November 2016 and April 2017. However, the complaint was filed on 21-03-2018, which is beyond the prescribed period of limitation.
Court’s Assessment
The Court observed that the impugned orders did not contain any observations regarding whether the complaint constituted an offense or under which provision of law the alleged offense was punishable.
The Court noted that the magistrate, while taking cognizance under Section 200 of the CrPC, is required to apply judicial mind to determine whether there are sufficient grounds for proceeding and for issuance of process. In this case, there was no indication that the magistrate had applied judicial mind before issuing process.
The Court emphasissrued that even in cases where the complainant is a public servant acting in the discharge of official duties, the magistrate must ascertain whether a prima facie case is made out against the accused before issuing process. The magistrate should not act mechanically but should carefully scrutinise the evidence to ensure that there is a strong suspicion that an offense has been committed.
Conclusion:
The Court set aside the impugned orders passed by the Chief Judicial Magistrate, Alipore, in the complaint case. The Court directed the magistrate to apply his judicial mind afresh to determine whether there are sufficient grounds for proceeding and for the issuance of process, taking into account the relevant provisions of the CrPC and other applicable laws.
The Court accordingly disposed of the present petition.
[Sajjan Kumar Garg v. Union of India, 2023 SCC OnLine Cal 3309, order dated 05-10-2023]
*Judgment by Justice Ajoy Kumar Mukherjee
Advocates who appeared in this case :
Mr. Sandipan Ganguly, Mr. Dipanjan Dutt, Mr. Sayantak Das, Counsel for the Petitioners
Mr. Smrajit Roy Chowdhury, Counsel for the Union of India
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
Having been in green brown project fields across 14 states in 64 destinations executing field services , often reading our Legal histories, like Yagna Balka civil codes deep acceptance since Chandragupta to British. But for penal code devised in cognito in 1844-53 or so when Calcutta police commissioner’s post was vacant and refused by British officers, thus Kaliprasanna Sinha became CP & made Jati tatva based codes still prevailing, contrary to Constitution.