2019 Supreme(SC) 113

SUPREME COURT OF INDIA
R. BANUMATHI, INDIRA BANERJEE, JJ.
STATE OF GUJARAT – Appellant
VERSUS
AFROZ MOHAMMED HASANFATTA – Respondent
CRIMINAL APPEAL NO. 224 OF 2019
(Arising out of SLP (Crl.) No.6068 of 2017)
Decided On : 05-02-2019

IMPORTANT POINTS
At the stage of taking cognizance of the offence based upon a police report u/s 190(1)(b) and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required.
Aggrieved party has the right to challenge order of Magistrate directing issuance of summons.
Mens rea can only be decided at the time of trial and not at the stage of issuing summons.
Evidence and materials produced by the prosecution cannot be brushed aside on the basis of possible defence.
Under its revisional jurisdiction High Court does not sit as an appellate court. It will not reappreciate the evidence unless judgment of the lower court is perverse.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 190(1)(a) and (b), and section 204 – Taking of cognizance and issue of summons – Fine distinction between section 190(1)(a) and (b) – Section 190(1)(b) applies in case of police report u/s 173 while section 190(1)(a) applies to a private complaint – Upon taking cognizance u/s 190(1)(b) Magistrate need not explicitly state reasons for his satisfaction that there are sufficient grounds for proceeding against the accused while issuing summons u/s 204 – If cognizance is taken u/s 190(1)(a) on basis of a private complaint, Court, while issuing summons u/s 204, has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence – If a private complaint, on the face of it, does not disclose commission of any offence, Magistrate shall not take cognizance under Section 190(1)(a) CrPC and the complaint is simply to be rejected – At the stage of taking cognizance of the offence based upon a police report u/s 190(1)(b) and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. (Para 17, 19, 21, 22, 47)

       (2012) 5 SCC 424; (2012) 11 SCC 465 – Relied upon

       1999 Cr.LJ 4101 – Cited with approval

       (1998) 5 SCC 749; (2015) 12 SCC 420 – Referred

       (b) Code of Criminal Procedure, 1973 – Section 397(2) – Aggrieved party has the right to challenge order of Magistrate directing issuance of summons. (Para 25)

       (1977) 4 SCC 137; (2000) 6 SCC 195; (2013) 15 SCC 624; (1997) 9 SCC 338 – Relied upon

       (c) Code of Criminal Procedure, 1973 – Section 204 – Mens rea can only be decided at the time of trial and not at the stage of issuing summons. (Para 43)

       (2008) 9 SCC 140 – Relied upon

       (d) Code of Criminal Procedure, 1973 – Section 204 – Evidence and materials produced by the prosecution cannot be brushed aside on the possible defence that credits in question are in regular course of his business dealings – These are matter to be considered at the stage of trial. (Para 44, 47)

       (e) Code of Criminal Procedure, 1973 – Section 397(2) – Under its revisional jurisdiction High Court does not sit as an appellate court – It will not reappreciate the evidence unless judgment of the lower court is perverse – Instantly satisfaction of the Magistrate based on charge sheet and the materials placed before him cannot be said to be erroneous or perverse – Such satisfaction ought not to have been interfered with. (Para 49)

       Facts of the case:

       FIR No.16/2014 dated 11.04.2014 was registered against M/s R.A. Distributors Pvt. Ltd & its Directors, namely Shailesh Rameshbhai Patel and Aniket Ashok Ambekar under Sections 420, 465, 467, 468, 471, 477A and 120B IPC.

       The said FIR did not contain the name of the respondent herein.

       Upon statement of one Prafulbhai Mohanbhai Patel respondent-accused Afroz Mohammed Hasanfatta, Madanlal Manikchand Jain and Amit @ Bilal Haroon Gilani were alleged to hatched a criminal conspiracy to cheat the Government of India by siphoning off huge amounts of money through Hawala.

       The respondent-accused Afroz Hasanfatta was arrested on 20.08.2014 for investigation in connection with FIR No.16/2014. The first supplementary charge sheet was filed against Madanlal Manikchand Jain on 30.09.2014. In the said first supplementary charge-sheet, the respondent-accused was not added as an accused as the statutory period for filing charge sheet in the case of respondent-accused had not expired.

       Second supplementary charge sheet was filed arraigning the respondent as accused No.1 and Amit @ Bilal Haroon Gilani as accused No.2. Based on the second supplementary charge sheet, cognizance was taken of the offences under Sections 420, 465, 467, 468, 471, 477A and 120B IPC and the Magistrate ordered issuance of summons against the accused arraigned thereon including the respondent-Afroz Hasanfatta.

       The respondent-accused filed Criminal Revision Application before the High Court assailing the order passed by the Chief Judicial Magistrate. The High Court condoned the delay of 766 days in filing the revision, allowed the criminal revision and set aside the order of the Chief Judicial Magistrate, Surat taking cognizance of the offences based on the second supplementary charge sheet No.62851/2014 dated 15.11.2014 and directing issuance of summons to the respondent-accused under Sections 420, 465, 467, 468, 471, 477A and 120B IPC.

       Finding of the Court;

       The Single Judge erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction.

       Result: Appeal allowed.