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2022 (4) TMI 1043 - HC - Companies LawLegality of detention/custody of the applicant - detention, post filing of charge sheet - cognizance of the complaint not taken - whether the detention/custody of the applicant i.e. remand orders are illegal, since the Special Court has not taken cognizance of the complaint filed by the SFIO, even after filing of the complaint? - HELD THAT:- The Court can remand an accused person to custody, under sub-section (2) of Section 309, pre and post filing of charge-sheet/complaint. On a plain reading of Section 309, it is evident that the said provision applies to an ‘inquiry’ or ‘trial’. The question is, when inquiry commences within the meaning of sub-section (2) of Section 309 - the issue of ‘taking cognizance’ has been dealt with by the Supreme Court in a catena of decisions. In a nutshell, the expression ‘taking cognizance’ means ‘application of mind’. Though the expression ‘cognizance’ has not been defined in the Cr.P.C, several decisions to the effect reveal that taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as the Magistrate applies his mind to the suspected commission of an offence. Infact, the common practice is that when a police report is submitted before the Magistrate, it is not necessary that there has to be a formal order of taking cognizance. Infact, an inquiry within the meaning of Section 309(2) may commence before the Magistrate, no sooner than charge-sheet is submitted, so as to vest him with a power of remand under sub-section (2) of Section 309 of the Cr.P.C. In SURESH KUMAR BHIKAMCHAND JAIN VERSUS STATE OF MAHARASHTRA & ANR. [2013 (2) TMI 821 - SUPREME COURT], despite the charge-sheet having been submitted and the Magistrate not having taken cognizance of the same, yet, the accused was remanded to custody, post filing of charge-sheet. The arguments of the petitioner in Suresh Kumar was, that on filing of charge-sheet, the Magistrate could not have remanded the accused to custody, without taking cognizance and as the Magistrate was awaiting sanction to be accorded, the accused therein was entitled, as a matter of right, to be released on bail. The question that arose in Suresh Kumar was whether the remand of accused on submission of charge-sheet, without taking cognizance, was sustainable in law - Similar is the situation in the present case. In the instant case, despite charge-sheet having been filed, no cognizance has been taken of the same and the learned Magistrate has continued to pass remand orders, post filing of charge-sheet. In the present case, prima facie, it appears that the accused (non-applicant) in the said case, have been protracting the proceedings. It is always open to an accused to challenge the cognizance taken by the Court, in the event, cognizance is taken by the Court. No doubt, cognizance has to be taken at the earliest, as soon as the the complaint/charge-sheet is filed, ofcourse, unless there are inevitable circumstances resulting in delay in taking cognizance. Considering that the complaint is pending at the pre-cognizance stage from 30th May 2019, the trial Court is directed to decide the issue of cognizance as expeditiously as possible. Application dismissed.
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