TMI Blog2022 (4) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try of Corporate Affairs ( MCA ) against IFIN s Directors (including the applicant) and auditors, running into more than 32000 pages. On 29th May 2019, MCA issued a sanction letter under Section 212(14) of the Companies Act, directing the respondent-SFIO to file its complaint before the Special Court against the applicant and others, by 30th May 2019. Pursuant to the said direction issued by the MCA, the respondent-SFIO filed a criminal complaint, being Criminal Complaint No.20/2019 before the Special Court on 30th May 2019. Being aggrieved by the direction issued by the MCA to file a criminal complaint against the applicant and others, the applicant filed a writ petition in this Court, being Writ Petition No.5263/2019 seeking quashing of the said direction, the complaint and consequently, the prosecution lodged by the respondent-SFIO, on the premise that the MCA had not applied its mind whilst granting sanction. Similar petitions were also filed by the other Directors and Auditors. The Division Bench of this Court (Coram: B. P. Dharmadhikari, CJ and Nitin R. Borkar, J.) quashed and set-aside the direction dated 29th May 2019, issuing sanction by the respondent No.1 Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Ponda, learned senior counsel for the applicant submitted that the power under Section 167(2) of the Cr.P.C to remand the accused, is only upto 60 days (as applicable to this case) and not beyond. He submitted that once the complaint (or charge-sheet, as applicable to this case) is filed, the power to remand under Section 167(2) comes to an end. He submitted that the applicant was first remanded to custody on 1st April 2019 and the complaint was filed by the respondent-SFIO on 30th May 2019 and therefore, the power to remand the applicant under Section 167(2) of the Cr.P.C had come to an end. According to the learned senior counsel, remand under Section 309 of the Cr.P.C is possible only after the Court takes cognizance of the complaint and since admittedly, cognizance has not been taken by the Special Court, there is no power to remand the applicant to custody even under Section 309 of the Cr.P.C. Learned senior counsel submitted that having regard to the aforesaid, the detention and custody of the applicant is illegal and his remand being contrary to law, he be released forthwith. 4. Mr. Ponda further submitted that once charge-sheet is filed, it is incumbent on the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 709, to show that the trial Court has no inherent powers and that their powers have to be strictly traced to some express provision in the Statute. Learned senior counsel also relied on the Law Commission reports to show that soon after charge-sheet is filed, it is obligatory on the Court to take cognizance of the offence and that no such gap is contemplated in law. Thus, in conclusion, Mr. Ponda submitted that the power of remand under Section 309(2), being only post cognizance and cognizance not having been taken, the remand orders are illegal and contrary to law and as such, cannot be sustained. 6. Mr. Venegavkar, learned counsel for the respondent-SFIO submitted that the issues raised in the present application have already been considered and decided by this Court (Coram : C. V. Bhadang, J.) in Criminal Application No. LD/VC/OCR/13/2020, in its order dated 5th May 2020. He submitted that the said order dated 5th May 2020 was challenged in the Apex Court and the applicant having withdrawn the said SLP, the order dated 5th May 2020 had attained finality. 7. Mr. Venegavkar further submitted that the legal position as contended by Mr. Ponda in the present case, is clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Court has not taken cognizance of the complaint filed by the SFIO, even after filing of the complaint. 11. The ground or premise on which the applicant seeks his release is that his detention, post filing of complaint, is illegal, as no cognizance of the complaint filed by the SFIO has been taken by the learned Special Judge, till date. It is submitted that all the remand orders post the complaint are illegal, inasmuch as, there is no provision in law, post 167 of the Cr.P.C for continuing the remand of an accused in the absence of the Court taking cognizance of the complaint. According to the learned senior counsel, remand under Section 309 of the Cr.P.C is possible only post cognizance and hence, the custody/detention of the applicant being illegal, the applicant be released forthwith. 12. The relevant provision of Cr.P.C, with which, we are concerned i.e. 309 Cr.P.C is reproduced hereinunder : 309. Power to postpone or adjourn proceedings.- (1) In every inquiry or trial, the proceedings shall be continued from day-today until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Section 167 of Cr.P.C spells out the powers of a Magistrate to authorise detention of an accused in custody. Filing of a charge-sheet, by itself, does not, in any way, affect/impinge the right, that an accused otherwise has, under proviso (a) of Section 167(2) of Cr.P.C. Under Section 190 of Cr.P.C, the Magistrate is empowered to take cognizance of offence or offences reported by the police in the final report filed under Section 173 of the Cr.P.C, after investigation. Therefore, at the stage of filing of charge-sheet, all that the Magistrate has to do, is to apply his mind to the facts narrated in the report and the material found in the documents and come to a conclusion, whether, the material before him would be prima facie sufficient, to take cognizance. It may not be even incumbent upon the Magistrate to record reasons, whilst taking cognizance. The power of the Magistrate to authorize the detention of an accused in custody till/after he takes cognizance of the offence reported in the final report submitted by the police, is governed by Section 309 (2) Cr.P.C. 14. Whether or not Section 309 comes into force only post cognizance/trial; whether there is no provision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered. In Suresh Kumar (supra), 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 (supra) 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 (supra) was whether the remand of accused on submission of charge-sheet, without taking cognizance, was sustainable in law. The Apex Court in para 18 of Suresh Kumar (supra) has observed as under : 18. The scheme of the CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Prevention of Corruption Act, 1988. The contention of the petitioner therein was that he could not have been remanded to custody in view of cognizance not being taken for want of sanction within the statutory period of 90 days. The scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, according to this Court in Bhikamchand Jain (supra). This Court held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. This Court was of the firm opinion that if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. However, once the charge- sheet was filed within the stipulated period, the right of the accused to statutory bail came to an end and the accused would be en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arguments, was that though the complaint in the said case was filed on 30th May 2019, however till date, cognizance of the complaint has not been taken by the learned Special Judge. On 14th January, 2022, during the course of arguments, when Mr. Venegavkar, learned counsel for the respondent No.1 was asked why cognizance of the criminal complaint bearing No. 20/2019 was not taken till date by the learned Special Court, Greater Bombay, learned counsel sought time to take instructions and place on record the reasons for the same. Accordingly, Mr. Venegavkar had tendered a compilation of documents and a note setting out the reasons for delay by the learned Special Judge in taking cognizance. The said compilation is taken on record vide order dated 18th January 2022. 24. From the said note, it transpires that after completing investigation into the affairs of IFIN, criminal complaint bearing No.20/2019 was filed before the learned Special Judge, 37th Sessions Court at Mumbai on 30th May 2019 before Shri Nitin Jiwane, the learned Presiding Officer at the relevant time. It appears that thereafter, Mr. Jiwane was transferred before the next date of hearing and a new Judge Shri S. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d taken the charge. On 7th January 2021, reply to the application filed by proposed accused No. 13 was filed by the complainant and the matter was adjourned for arguments on the said application on 8th February 2021. Thereafter, the matter was listed on 8th February 2021 and 9th February 2021 for arguments, however, the arguments could not be advanced, as the learned senior counsel appearing for proposed accused No. 13 sought permission to argue the matter through video-conferencing. On 30th April 2021 and 6th May 2021, the matter could not be heard in view of the SOP issued by the High Court due to prevalent conditions of COVID-19. In the interregnum, the Presiding Officer Shri R. V. Kokare was transferred and Shri R. M. Sadrani, learned Judge took charge as the Presiding Officer of the said Court. It appears that the matter was listed on 6th July, 30th July, 6th August, 2nd September, 28th September and 29th October 2021, however, the hearing could not proceed further, as the learned senior counsel appearing for accused No. 13 insisted for hearing through video-conferencing. Learned senior counsel appearing on behalf of the accused No.13, argued the matter on 29th Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
