NITIN V BHIMANI Vs. A R BASU

JUDGEMENT

(1.) By this revision the petitioners have challenged the initial order of taking cogni zance being order dated 4/10/1991 passed in Case No. C/417/91 under S. 1208/420 and 420 of the IPC as passed by the learned Metropolitan Mag istrate, 8th Court, Calcutta, and all orders subse quent to that order.

(2.) The short background of the case is that the Constituted Attorney of Makum Tea Company (India) Limited, Namdang House, lodged a complaint against the petitioners herein for an offence under S. 120B/420 and 420 of the IPC on certain allega tions before the court of the learned Metropolitan Magistrate, 8th Court, Calcutta. The complaint was registered there as Case No. C/417/91. The learned Magistrate examined the complainant and then on a finding that there are sufficient grounds for proceed ing against the persons viz. the present petitioners, ordered for issuance of process under S. 120B/420 and 420 of the IPC and thereafter in view of that he took cognizance of the offence, as indicated earlier, fixing 29-11-91 for return of the summons and for appearance of the accused.

(3.) Mr. Balai Chandra Ray, learned Senior Advo cate, appearing with Mr. Y. Dastoor and Mr. S. K. Basu, learned Advocates, contended on behalf of the petitioners that the order of taking cognizance is bad on twin grounds. He contended that it is imperative of the law under S. 200 of the Code of Cr. P. that cognizance is to be taken first and then the complain ant and the witnesses present are to be examined and then the process can be issued if the learned Magis trate thinks so. He further submitted that after ex amination of the complainant and his witnesses present if cognizance is taken thereafter, that is not an irregularity but an illegality and that cannot be cured. In this connection, Mr. Ray referred to Ss. 190(1) and 192 of the Code of Cr. P. From S. 190(1) Mr. Ray pointed out that on receiving a complaint the Magistrate shall take cognizance and Mr. Ray also pointed out from S. 200 that after taking such cognizance the complainant and his witnesses present can be examined. He also referred to, as indicated earlier, S. 192 and pointed out therefrom that in case of filing a complaint before the Chief Judicial Mag istrate the Chief Judicial Magistrate will take cogni zance of that complaint and then he can transfer the case to some other Magistrate for enquiry or trial. According to Mr. Ray, this clearly indicates and shows that taking cognizance is a stage earlier than the stage by which the complainant and his wit nesses present can be examined. Mr. Ray referred to some decisions to press the point that if the cognizance is taken subsequent to the examination of the complainant and his witnesses present then the order of taking cognizance is bad. In that respect he referred to the case of Revanappa v. S. N. Raghunath reported in 1983 Cri LJ 321 and he particularly referred to para 7 of that decision to point out that there the Karnataka High Court has held, inter alia, that taking cognizance subsequent to the examina tion of the complainant and his witnesses present is an illegality. In that respect, he also referred to another decision of the Patna High Court in the case of Kanhai Raut v. Budhan Mahto reported in 1978 Cri LJ 667. From para 5 of that decision Mr. Ray pointed out that taking cognizance subsequent to the examination of the complainant and his witnesses present is an illegality and is not sustainable in law. He also referred to a Calcutta decision on that point in the case of A. C. Samaddar v. Suresh Chandra Jana reported in (1949) 53 Cal WN 270 : (1949) 50 Cri LJ 368 and he pointed out from the passage as at p. 272 "a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath". This Court in that decision has also held that, that is a mandatory provision. According to Mr. Ray, if the mandatory provision is not being ob served that will take the order within the realm of illegality and not irregularity and such illegality is not curable.