| Headnote |
Code of Criminal Procedure, 1973 – s.190(1)(b) – Allegation of cheating/ siphoning of huge amounts of money through Hawala – A complaint was filed by the ICICI Bank against a company alleging that they hatched a conspiracy and as a part of this conspiracy submitted false and bogus bill of entry in the Bank and forwarded huge sum through Hawala to Dubai and Hong Kong to different companies and thereby cheated Government of India – FIR registered against the said company – Respondent’s name did not appear in the FIR – During course of investigation, statements of various persons were recorded and as per the prosecution, these statements, implicated the respondent and other accused persons – Charge-sheet was filed wherein the respondent was referred to as a suspect – In the first supplementary charge sheet, the respondent was not added as an accused – Based on further investigation, second supplementary charge sheet was filed and relying on it, the Magistrate took cognizance of offence against accused including respondent – Issuance of process – High Court granted bail to respondent – Respondent filed revision challenging the order taking cognizance of offence – High Court allowed the revision holding that there was no material either direct or circumstantial to point out any connection of respondent with alleged offences of forgery, cheating, conspiracy etc. – State challenged the order of High Court by filing instant appeal – Held: The offence alleged to have been committed was a complex economic offence of sending foreign exchange to Dubai and Hong Kong through Hawala by setting up a web of companies and was not a simple case of forged Bills of Entry – High Court erred in proceeding to examine the case as if it was a simple case of submission of forged Bills of Entry by observing that the case was not related to any import or export of diamonds – When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with – While taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused – Along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his company and other Bank Statement, Call Detail Records and other materials were placed and the Magistrate satisfied himself that there was sufficient ground to proceed against the respondent and issued summons – When the prosecution relied upon the materials, strict standard of proof was not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take – All that the court was required to do is to satisfy itself as to whether there are sufficient grounds for proceeding – High Court ought not to have gone into the merits of the matter when the matter was at nascent stage – Impugned order is liable to be set aside – The order of the Magistrate taking cognizance of the second supplementary charge sheet for the offences and issue of process to the respondent-accused restored – Penal Code, 1860 – ss.420, 465, 467, 468, 471, 477A and 120-B – Economic Offence. Code of Criminal Procedure, 1973 – s.190(1)(b) – Cognizance of offence and issue of summons based on police report – Whether the Magistrate has to record reasons for its satisfaction of sufficient grounds for issuance of summons – Held: In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation – Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet is filed – In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet – Thereafter, Magistrate is only required to pass an order issuing summons to the accused – Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused and the Magistrate is not required to record any reason – In the instant case, cognizance of the offence was taken by taking into consideration the charge sheet filed by the police for the offence under ss.420, 465, 467, 468, 471, 477A and 120B IPC – Order for issuance of process without explicitly recording reasons for its satisfaction for issue of process did not suffer from any illegality. Code of Criminal Procedure, 1973 – s.190, 204 – Issuance of process – Held: For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused – At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record – The Court must apply its mind to the allegations in the charge-sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused – The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty – The Court is also not required to embark upon the possible defences – Likewise, ‘possible defences’ need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. Code of Criminal Procedure, 1973 – s.397 – Revisional jurisdiction – Scope of – While hearing revision under s.397, the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity – In the instant case, Magistrate was satisfied that there were sufficient grounds for proceeding, based on the charge sheet and the materials produced thereon – High Court was not justified in examining the merits and demerits of the case and substitute its own view – Penal Code, 1860 – ss.420, 465, 467, 468, 471, 477A and 120-B. |
