TMI Blog2008 (1) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... e one decided by us in this appeal. Since the matter is very old, the Court will give priority and will decide it as expeditiously as possible, preferably before 30-6-2008. - CRIMINAL APPEAL NO. 175 OF 2008 - - - Dated:- 25-1-2008 - C. K. THAKKER AND P.P. NAOLEKAR, JJ. B. Dutta, A.K. Srivastava, Naveen Prakash, Vikas Sharma and B. Krishna Prasad for the Appellant. R.F. Nariman, Subrat Birla, S.C. Birla, Shivaji M. Jadhav, Rahul Joshi, Chinmoy Khaladkar and Ravindra Keshavrao Adsure for the Respondent. JUDGMENT C.K. Thakker, J. - Leave granted. 2. In the present appeal, we are called upon to decide the correctness or otherwise of the proposition of law by the High Court of Judicature at Bombay whether issuance of process in a criminal case is one and the same thing or can be equated with taking cognizance by a Criminal Court ? And if the period of initiation of criminal proceedings has elapsed at the time of issue of process by a Court, the proceedings should be quashed as barred by limitation ? 3. To appreciate the controversy raised in the appeal instituted by the Chief Enforcement Officer, Enforcement Directorate, Government of India (appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Japan stipulated payment in US Dollars, the contract with the USSR Company required payment in Indian Rupees. Since the value of Rupee against the US Dollar fell down, the Company had to pay more Rupees to their foreign suppliers. On 1-6-2000, FERA was replaced by the Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA ). 5. On 24-5-2002, the appellant-complainant in the capacity as Chief Enforcement Officer, Government of India, filed Criminal Complaint No. 1149/S/2002 against the Company alleging that the Company had received an amount of Rs. 44,04,00,000 through State Bank of India, Bombay but it failed to take steps to realize export proceeds amounting to Rs. 16,60,00,000 within the stipulated period of six months. It thereby contravened section 18(2) and 18(3) read with section 68(1), punishable under section 56(1)( ii ) of FERA. On the same day, i.e., on 24-5-2002, after hearing the learned counsel for the Department, the Chief Metropolitan Magistrate, Esplanade, Mumbai took cognizance of the offence and issued summons to the accused. On 3-2-2003, the Chief Metropolitan Magistrate issued process requiring the respondents to appear before the Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned counsel that the relevant date for counting the period of limitation is not the date of taking cognizance or issuance of process by the Court but the date of filing complaint. It was stated that the point has been concluded by various decisions of this Court. Since the complaint was filed on 24-5-2002, which was within the period of limitation, the High Court was wrong in treating the criminal complaint as barred by limitation and in quashing it. The order passed by the High Court, thus, deserves to be set aside by directing the Chief Metropolitan Magistrate, Mumbai to proceed with the case and decide it in accordance with law. 10. The learned counsel for the respondents, on the other hand, supported the order passed by the High Court. It was submitted that the High Court was wholly right in quashing the proceedings. Admittedly, process was issued in February, 2003 while under section 49(3) of FEMA, proceedings under the old Act (FERA) could not have been initiated after the expiry of two years from the commencement of the new Act (FEMA). FEMA came into force on 1-6-2000 and hence cognizance of an offence under FERA could have been taken under FEMA latest by 1-6-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down as to when a Magistrate can be said to have taken cognizance. Chapter XIV (sections 190-199) of the Code deals with Conditions requisite for initiation of proceedings . Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence ( a )upon receiving a complaint of facts which constitute such offence; ( b )upon a police report of such facts; ( c )upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 13. Chapter XV (sections 200-203) relates to Complaints to Magistrates and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Commencement of Proceedings covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI. 16. Let us now consider the question in the light of judicial pronouncements on the point. 17. In Superintendent Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR 1950 Cal. 437, the High Court of Calcutta had an occasion to consider the ambit and scope of the phrase taking cognizance under section 190 of the Code of Criminal Procedure, 1898 which was in pari materia to section 190 of the present Code of 1973. Referring to various decisions, Das Gupta, J. (as His Lordship then was) stated : ". . . What is taking cognizance has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences as defined in the Criminal Procedure Code on the complaint of an aggrieved person, The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under section 167( b ) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate". . . . (p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Magistrate can be said to have taken cognizance of an offence under section 190(1)( a ) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under section 200 and the provisions following that section. Where, however, he applies his mind only for ordering an investigation under section 156(3) or issues a warrant for arrest of accused, he cannot be said to have taken cognizance of the offence. 23. In Darshan Singh Ram Kishan v. State of Maharashtra [1972] 1 SCR 571, speaking for the Court, Shelat, J. stated that under section 190 of the Code, a Magistrate may take cognizance of an offence either ( a ) upon receiving a complaint, or ( b ) upon a police report, or ( c ) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been said, taking cognizance does not involve any formal action or indeed action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, thus, takes place at a point whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence". (p. 257) [ see also M.L. Sethi v. R.P. Kapur (1967) 1 SCR 520]. 25. In the case on hand, it is amply clear that cognizance of the offence was taken by the Chief Metropolitan Magistrate, Mumbai on 24-5-2002, i.e., the day on which the complaint was filed, the Magistrate, after hearing the counsel for the department, took cognizance of the offence and passed the following order : "Mr. S.A.A. Naqvi, counsel for the department is present. Complainant is public servant. Cognizance is taken . Issue summons to accused under section 18(2)(3) of FERA, 73 read with Central Notification and read with section 68(1) of the said Act and read with section 56(1)( i ) and read with section 49(3)(4) of FEMA, 1999. Summons returnable on 7-2-2003 at 3 p.m." [Emphasis supplied] 26. Undoubtedly, the process was issued on 3-2-2003. In our judgment, however, it was in pursuance of the cognizance taken by the Court on 24-5-2002 that a subsequent action was taken under section 204 under Chapter XVI. Taking cognizance of offence was entirely different from initiating proceedings r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cognizance by the Court may make it unsustainable and ultra vires article 14 of the Constitution." (p. 412) 28. The learned counsel for the respondent, on the other hand, tried to distinguish Bharat Damodar Kale s case ( supra ) and Japani Sahoo s case ( supra ) submitting that in both the decisions, this Court was called upon to consider, inter alia section 468 of the Code providing for limitation for taking cognizance of certain offences. According to the counsel, section 468 of the Code starts with the expression "Except as provided elsewhere in this Code. . .". Section 49(3) of FEMA, on the other hand, starts with a non obstante clause ("Notwithstanding anything contained in any other law for the time being in force"). It was, therefore, submitted that the ratio laid down in the above two cases would not be applicable to the instant case. 29. In our opinion, it would not be necessary for us to express any opinion one way or the other on the larger question. We have already held in the earlier part of the judgment that in the case on hand, cognizance of an offence had already been taken by the Chief Metropolitan Magistrate, Mumbai on 24-5-2002, well within t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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