Deepchand Varma and Others vs State

Pratap Singh, J.—The accused in C.C.4262 of 1991 on the file of X Metropolitan Magistrate, Egmore, Madras have filed this petition u/s

482 Criminal Procedure Code, praying to call for the records in the aforesaid case and quash the same.

The respondent has filed the charge sheet against the petitioner, arraying them as accused 1 to 5. The allegations in it are briefly as follows:

Accused No.1 is authorised representative of M/s. Varma & Co., Accused No. 2 is an unemployed youth who was adjudged as the highest

bidder in the auction held on 20.4.90 where 8123 two motion selectors were auctioned by accused No.1 Accused 3 and 5 are brothers of

accused No.1. Accused No. 4 is the Sole Proprietor of M/s. Arihant Steel Enterprises, Madras. Accused No.1 was the authorised representative

of Madras Telephones to conduct of telephone materials. As per the terms and conditions, the auctioneer at his cost should publish the date, place

and time and description of Material in leading English and Tamil newspapers. He must also send the catalogues of the auction to the registered

sub-scribers. Accused No.1 was asked to conduct auction of two motion selectors group selectors, final selectors and relay sets totalling 8123 on

16.4.90. Accordingly, accused No.1 gave an advertisement in Indian Express and Dinathanthi purposely omitting the time, place and description of

the materials to be auctioned. He was having four more auctions at different places. He prepared two sets of catalogues showing the description of

materials, time and place except the auction of two motion selectors at N.S.C. Bose Road Exchange at 10.00 A.M. on 20.4.90 and other set of

catalogue showing only auction of two motion selectors at 10.00 A.M. at N.S.C. Bose Road Exchange. He did not despatch the catalogue of

auction of two motion selectors at N.S.C. Bose Road Exchange to the registered subscribers. The first accused fabricated documents to show that

the auction of two motion selectors, group selectors, final selectors and relay sets numbering 8123 and the second accused was adjudged as the

highest bidder at Rs. 85,000/- Accused No. 2 is an unemployed youth and he was not a registered dealer in scrap material. The entry fee for

attending auction shown against accused No.2 did not belong to him. The demand draft shown against second accused and first accused was

drawn in favour of Madras Telephones by M/s. Jitender Kumar & Co., The Second accused was declared the successful bidder at Rs. 85,000/-

Payment towards this was made by first accused from clandestine sources. On 22.4.90 and 27.4.90, these materials were removed by third

accused and shifted to Nagappa Industrial Estate, Puzhal and this was seized. Meanwhile, the second accused had fabricated documents to show

that materials were sold to fourth accused for Rs.1,10,000/- and fourth accused book of documents did not reflect this. The fifth accused arranged

Rs.85,000/- from S.P. Mhotra on 20.4.90. Subsequent auction of similar materials numbering 4,200 within a fortnight were auctioned and the

value of the highest bidder was Rs.5,63,000/- Investigation reveals that second accused is benami of first accused. Accused 3 to 5 are interested

accomplices. The above facts reveal that accused entered into the criminal conspiracy at Madras Red Hills and other places during April, 1990 to

cheat Madras Telephones of huge amount and in furtherance of the said conspiracy, they have committed the above acts. Hence they are liable to

be prosecuted for offences u/s 120-B and 420 Indian Penal Code and specific offence u/s 420 I.P.C. against first accused. Hence the charge.

Mr. M. Ravindran, the learned counsel appearing for the petitioners, would contend that

(i) the respondent has filed only the charge sheet in court. The respondent has not sent to court any of the documents mentioned u/s 173(5)

Criminal Procedure Code along with the charge sheet. While so, the learned Magistrate is wrong in taking cognizance of the case for offence u/s

120-B and 420 Indian Penal Code and taking it on file u/s 190(1)(b) Criminal Procedure Code....

(ii) As per section 238 Criminal Procedure Code, when the accused appeared in court, the Magistrate should satisfy himself that he had complied

with the provisions of Section 207 Criminal Procedure Code and the Magistrate shall without any delay furnish the accused, free of cost, copy of

the documents enumerated thereunder and in the instant case, only copy of the charge sheet alone was furnished to the accused and none of the

other documents including the document mentioned u/s 173(5) Criminal Procedure Code were furnished to the accused, though some months have

passed since their appearance. The non- compliance of the above, vitiates the proceedings.

Per contra, Mr. P. Rajamanickam, the learned Public Prosecutor appearing for the respondent, would contend that a police report satisfying the

requirements of Section 173(2) Criminal procedure Code was filed and that taking cognizance of the case by the learned Magistrate u/s 190(1)(b)

of the Code is perfectly in order. He would further contend that Section 238 of the Code requires compliance of Section 207 of the Code before

the commencement of the trial that it would suffice if prior to commencement of the trial, the Magistrate satisfies himself that he had complied with

the provisions of Section 207 of the Code and that stage has not yet come. He would add that all the documents referred to u/s 173(5) of the

Code are filed in court and was returned that since the case is stayed pending disposal of Crl. P.C. it could not be furnished and that there would

be no delay whatsoever on the part of the respondent.

In the typed set, filed along with the petition, copy of the charge sheet is filed. It gives the names of the accused persons, names and addresses

of the witnesses and the charge. In the charge, which is part of the charge sheet, the names of the accused are given in detail. The allegations

against the accused which give rise to the offences alleged are all given in detail. Thereafter, the list containing the names of the witnesses with

addresses and other particulars are given. Section 173(2) reads as follows:

Report of police officer on completion of investigation.-

(1).....

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take-cognizance of the

offence on a police report, a report in the form prescribed by the State Government stating-

(a) the names of the parties:

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed, if so, by whom;

(e) whether the accused has been arrested

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody u/s 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if

any; by whom the information relating to the commission of the offence was first given.

The charge sheet which includes the charge and other particulars referred to by me supra contains all the particulars mentioned in Section 173(2)

Criminal Procedure Code.

I shall presently pass onto section 190(1)(b) Cr.P.C. which reads as follows:

Cognizance of offences by Magistrates,-

(1) Subject to the provisions of this Chapter, any Magistrate of the second class specifically empowered in this behalf under sub-section (2), may

take cognizance of any offence-

(a)....

(b) upon a police report of such facts;

In as much as the charge sheet with the charge filed in this case satisfied the requirements of Section 173(2) Criminal Procedure Code which is a

police report of such fact, the magistrate is in order in taking cognizance of the case. I find absolutely no illegality in taking cognizance of of the

offence by the Magistrate u/s 190(1)(b) Criminal Procedure Code. Mr. M. Ravindran, would contend that Section 190 (l)(b) mentions upon a

police report ""of such facts"" the words ""of such facts"" would indicate not mere police report but something more is required before the Magistrate

takes cognizance of the offence u/s 190(1)(b) of the Code. On the language of Section 190(1)(b) Cr.P.C, which I have extracted above, ""of such

facts"" cannot be taken disjunctively. But it must be taken along with the previous words ""upon a police report"", since the police report mentioned in

Section 173 (2) is required to contain certain facts enumerated thereunder, it is only those facts which a police report should contain that has been

referred to in Section 190(1)(b) and it is not as if apart from police report, some more facts are also required u/s 190(1)(b) Cr.P.C. The language

is so clear and explicit and unambiguous. It would not give rise to such an interpretation as made by Mr. M. Ravindran that apart from police

report, some more facts are required before the Magistrate takes cognizance of the case. Mr. Ravindran, would contend that the documents

referred to in Section 173(5) of the Code also must be before the court, before he takes cognizance of the case and without those documents, the

Magistrate shall not take cognizance of the case, and that only those documents are indicated in Section 190(1)(b) of the Code. Section 173(5)

needs extraction, it reads as follows:

173 (5),When such report is in respect of a case to which section 170 applies, the police office shall forward to the Magistrate along with the

report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during

investigation;

(b) the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses.

On a reading of sections 173(2) and 190(1)(b) and as well 173(5), Cr.P.C., it would be apparent that the contention of Mr. Ravindran cannot be

accepted. The documents mentioned in section 173(5) Cr.P.C. are not part and parcel of police report. It shall be forwarded to the Magistrate

along with the report. That would clearly indicate in unequivocal terms that it is not at all part of the police report. What is police report and what it

should contain are all clearly stated in Section 173(2) of the Code. Upon a police report of such facts, the Magistrate can take cognizance of the

offence. That was exactly done in this case. It is not a narrow interpretation of Section 190(1) (b) of the Code. Mr. M. Ravindran, would contend

that if such an interpretation that police report containing the particulars mentioned in Section 173(2) is sufficient for taking cognizance of the

offence is accepted, many other provisions of the Code would become inoperative. He cites an example that the Magistrate can refuse to take

cognizance of the case, if there are no materials to substantiate the offences alleged against the accused, even at the outset and that if the

documents mentioned in Section 173(5) of the Code are not filed in the Court, the Magistrate cannot take such a decision before taking

cognizance of the case. Nowhere in the Code, any prohibition was imposed on the Magistrate to call for the documents mentioned in Section

173(5) of the Code, before taking cognizance of the case. At the stage of taking cognizance of the offence on a police report of such facts, as per

section 190(1)(b) of the Code, if the magistrate feels it necessary, he can certainly calls for the other documents before taking cognizance of the

offence. He is not precluded from acting in that way. I am unable to accept the contention of Mr. M. Ravindran. The ground No.1 urged by him

cannot be sustained.

Section 238 of the Code reads as follows:

Compliance with Section 207. - When, in any warrant-case instituted on a police report, the accused appears or is brought before a

Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207.

(Emphasis supplied)

The language of Section 238 clearly shows that the Magistrate must satisfy himself before the commencement of the trial, that document mentioned

in Section 207 of the Code was furnished to the accused. That stage has not yet come. Hence no grievance can be made that the documents

mentioned in Section 207 of the Code were not supplied and hence the proceedings are liable to be quashed. In view of the above, ground No. 2

is equally untenable. No other ground was urged before me.

In view of the above, the petition which has no merits shall stand dismissed.