RAGHUBIRSARAN JAIN Vs. STATE

JUDGEMENT

(1.) By this Revisional Application under S. 482 of the Code of Criminal Procedure (hereinafter referred to as Code) the two accused petitioners Raghubir Saran Jain and Ashok Kr. Jain (hereinafter referred to as petitioners) have prayed the Court for quashing of the relevant proceedings, being G. R. Case No. 3574 of 1991, arising oat of case Reference No. CBI/SCB/RC- 12/98 dated 26/09/1989, now pending before the Metropolitan Magistrate, 12th Court at Calcutta, including the Order dated 9/11/1991 passed herein by the Chief Metropolitan Magistrate, Calcutta, (hereinafter referred to as Magistrate) for the reasons stated and on the grounds made oat therein. During the hearing of the application the learned Senior Advocate for the petitioner, Mr. Dilip Kr. Datta, had, however, urged the lone ground that it was incompetent for the learned Magistrate to take cognizance of the alleged offence by his im pugned Order dated 9/11/1991, only on the basis of the charge-sheet, in the absence of the documents required to be furnished to the Court under Sub-Section (5) of S. 173 of the Code, as he did.

(2.) The petitioners, along with others, have been prosecuted for having allegedly committed offence punishable under Ss. 400/468/47. Indian Penal Code on the allegations made in the F.I.R. alleging, inter alia, that in a number of cases, some importers have submitted guarantees from Federal Bank Ltd. for release of imported goods as per orders of the Hon'ble High Court at Calcutta. Since the cases are pending before the Court, the Bank Guarantees are required to be kept valid for realisation of Govern ment dues. It has been alleged that since a large number of Bank Guarantees were submitted to Cus toms Authorities, officials of Federal Bank Ltd. made enquiries about issuance of a large number of Bank Guarantees from the Bank. On verification, they could conclusively say that 45 Bank Guarant ees have been used, and those Bank Guarantees were under purported signatures of Bank Officials. Out of 45 Bank Guarantees, M/s. Cosmo Steel (P) Ltd. submitted 44 forged Bank Guarantees.

(3.) The Investigating Agency after completion of investigation had submitted charm-sheet against the accused persons named therein, including the present two petitioners, which was received by the learned Magistrate on 4-10-91, who had taken cognizance of the alleged offence under seeing the F.I.R., containing 27 sheets, which was perused earlier, by passing the impugned order dated 9/11/1991. There is nothing in the orders dated 4-10-91 and 9-11-91 recorded by the learned Magistrate to indicate that the documents referred to in Sub-Section (5) of S. 173 of the Code were forwarded to the Court, along with the chare-sheet/police report (under S. 173(2) of the Code), which were looked into by him for taking cognizance of the alleged offence. It would, per contra, clearly appear from paragraphs 11 and 14 of the Affidavit-in-Opposition filed on behalf of the Opposite Party No. 2 to the Supplementary Affidavit filed by the petitioners that the charge-sheet was placed before the learned Mag istrate, who, on perusal of the same, was satisfied and took cognizance of the alleged offence; and that the document (under S. 173(5) of the Code) were not placed along with the charge-sheet, which were kept by the Officer for preparation of copies of statements and documents to furnish the same to the accused terms of the provisions of S. 173(3) of the Code. Admittedly, therefore, the Police Report/Charge-sheet under S. 173(2) of the Code was not accompanied by the documents required to be for warded to the Magistrate under S. 173(5) of the Code. The question which would at once emerge for consideration is; whether the learned Magistrate was justified in taking cognizance of the alleged offence in the absence of the documents under S. 173(5) of the Code. In order to answer the said question let us examine the relevant provisions of the Code is that context.