MOHAN LAL Vs. STATE THR. CBI

JUDGEMENT

(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), 1963 AIR(SC) 765" "State of Karnataka vs. Pastor P.Raju, 2006 AIR(SC) 2825" "Jagdish Ram vs. State of Rajasthan, 2004 AIR(SC) 1734" "Bhushan Kumar & anr. Vs. State (NCT of Delhi) and anr., 2012 5 SCC 424"; "Dharmatma Singh vs. Harminder Singh and Others, 2011 6 SCC 102" & "R.R.Chari vs. The State of Uttar Pradesh, 1951 AIR(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 :