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HIGH COURT OF CALCUTTA
Asish Baran Mukherjee, J.
In re: Pradip Kumar Patra
vs.
The State of West Bengal
Decided On : June 14, 1996
CRIMINAL PROCEDURE CODE - SECTION 173(2) AND 173(5) - TAKING COGNIZANCE - MANDATORY REQUIREMENTS - VIOLATION - EFFECT - SECTION 460(6) AND 465 IPC - APPLICABILITY - SECTION 482 CR.P.C. - SCOPE.
Fact of the Case:
The petitioner was accused of being involved in the collapse of a newly constructed building, resulting in loss of lives and damage to an adjacent building. A charge sheet was submitted against the petitioner under sections 120B, 304, 468 and 471 IPC. The Magistrate took cognizance of the case on the basis of the charge sheet without considering the documents and statements as required under section 173(5) Cr.P.C. The petitioner challenged the cognizance taken by the Magistrate under section 482 Cr.P.C.
Finding of the Court:
The court held that the Magistrate's cognizance of the case was bad in law as it was taken in violation of the mandatory provisions of section 173(5) Cr.P.C. The court further held that the subsequent commitment of the case to the Court of Sessions and the taking of cognizance by the Sessions Court did not cure the illegality committed by the Magistrate.
Issues: 1. Whether the Magistrate's cognizance of the case was valid in law when it was taken without considering the documents and statements as required under section 173(5) Cr.P.C.? 2. Whether the subsequent commitment of the case to the Court of Sessions and the taking of cognizance by the Sessions Court cured the illegality committed by the Magistrate?
Ratio Decidendi: 1. The court held that the Magistrate's cognizance of the case was bad in law as it was taken in violation of the mandatory provisions of section 173(5) Cr.P.C. The court observed that the Magistrate is required to consider the charge sheet along with the documents and statements as mentioned under section 173(5) Cr.P.C. before taking cognizance of an offence. The court further observed that the Magistrate cannot take cognizance of an offence merely on the basis of the charge sheet without considering the other materials mentioned in section 173(5) Cr.P.C. 2. The court held that the subsequent commitment of the case to the Court of Sessions and the taking of cognizance by the Sessions Court did not cure the illegality committed by the Magistrate. The court observed that the question of taking cognizance by the Sessions Court arises only when a case is validly committed to the Session under section 209 Cr.P.C. Similarly, the question of commitment only comes when there has been a valid taking of cognizance of the offence. In cases when such initial cognizance is bad, the subsequent commitment and taking of cognizance by the Court of Sessions cannot cure the said illegality.
Final Decision: The court set aside the Magistrate's order taking cognizance of the case and the subsequent order of the Additional Sessions Judge refusing to discharge the petitioner. The court directed the Magistrate to consider the charge sheet and the documents and statements as mentioned under section 173(5) Cr.P.C. afresh and come to a decision regarding taking of cognizance.
A. B. Mukerjee, J.: This is an application under s. 482 Cr.P.C. praying for discharge of the accused. The order dated 21.3.96 passed by the Additional Sessions Judge, 14th Court, Alipore in Sessions Case No. 12 (6) of 1992 arising out of section "T' Case No. 323 dated 20.6.89 is the subject matter of challenge.
2. The case of the petitioner is that he is an Accountant of Kundalia Industrial Corporation having its place of business at 1, Chandney Chowk. On 19.6.89 a newly constructed five-storied building situated at 32A, Dr. Rajendra Road, Calcutta, suddenly collapsed. As a result of which some persons lost their lives and another adjacent building was also damaged. Accordingly section 'T' Case No, 323 dated 20.6.89 was started against the petitioner on mere suspicion, as being one of the employees he might have help in construction of the aforesaid building. On investigation charge sheet was submitted on 27.6.90 under s. 1208/304/468 and 471 IPC.
3. The case was committed to the Court of the Session and subsequently the Sessions Judge, transferred the case to the Addl. Sessions Judge, 12th Court, but ultimately the case was transferred to the Additional Sessions Judge, 14th Court, Alipore.
4. The petitioner filed an application before the Additional Sessions Judge stating that at the time of submitting charge sheet under s. 173(2) Cr.P.C. the 1.0. did not submit documents and papers in terms of s. 173(5) Cr. P. C. and accordingly the cognizance of the case taken by the S.D.J.M., Alipore on 27.6.90 is bad in law. The trial Judge after hearing both the sides by an order dated 21.3.96 disallowed the prayer of the petitioner after holding that there was no illegality or irregularity and even if there been any, tile same has' been cured in view of the taking of cognizance by the Sessions Judge under s. 193 Cr.P.C. It is contended that mandatory provision of law in the matter of taking of cognizance has been violated and accordingly all subsequent steps taken by the Magistrate including the order of commitment is bad.
5. The case was' heard at length and at the stage when judgement was reserved after conclusion of hearing, there was a submission on behalf of the State. for giving the Ld. P. P. High Court, an opportunity of making further submission on behalf of the State. This prayer was allowed and the Ld. P.P., High Court was heard extensively and the Defence was also given the liberty to reply.
6. The contention of the Ld. P.P. is that the impugned order of taking cognizance by the Magistrate is dated 27.6.90 and the case was committed in session on 15.6.92. His contention is that as the application under s. 482 Cr.P.C. does not challenge the taking of cognizance by the Sessions Court, the defect if any in the matter of taking cognizance by the Magistrate is immaterial and will not affect the subsequent proceeding before the Sessions Court. In support of his contention he relied on a decision reported in AIR 1966 SC 595. He is also relied on the provisions of s. 460(6) and 465 IPC.
7. On 'the other hand it is the case of the petitioner that the taking of cognizance is bad as the Magistrate did not consider any document or statement apart from the charge sheet, which is submitted under s. 173(2) Cr.P.C. This amounts to a violation of mandatory provision of the Code and as such the taking of cognizance being bad, all subsequent steps including the order of commitment and subsequent taking of cognizance by the Court of Session is not tenable. It is also his contention that while an irregularity is cured by s. 460 Cr.P.C. no illegality can be cured.
8. I have given my careful consideration to the submissions of both the sides. I have also carefully scrutinised the order of the Ld. Additional Sessions Judge, 14th Court, Alipore, dated 21.3.93 when the Ld. Judge dealt with the matter in details with reference to the cases referred to him. The Learned Judge is of the opinion that from the order of the Ld. S.D.J.M., taking cognizance o
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