A.B. Mukherjee, J.@mdashThis is an application u/s 482 Code of Criminal Procedure praying for discharge of the accused. The order dated March 21, 1996 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 June 20, 1989 is the subject matter of challenge.
2. The case of the Petitioner is that he is an Accountant of Kunnalia Industrial Corporation having its place of business at 1, Chandney Chowk. on May 19, 1989 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 Jume 20, 1989 was started against the Petitioner on more suspicion, as being one of the employees he might have help in construction of the aforesaid building. On investigation charge sheet was submitted on June 27. 1990 under Sections 120B/304/113/468 and 471 Indian Penal Code.
3. The case was committed to the Court of the section and subsequently the Sessions Judge, transfer and 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) Code of Criminal Procedure the I.O. did not submit documents and papers in terms of s. 173 (5) Code of Criminal Procedure and accordingly the cognizance of the case taken by the S.D.J.M., Alipore on June 27, 1990 is bad in law. The trial Judge after hearing both the sides by an order dated March 21, 1996 disallowed the prayer of the Petitioner after holding that there was no illegality or irregularity and even if there been any, the same has been cured in view of the taking of cognizance by the Sessions Judge u/s 193 Code of Criminal Procedure. 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 judgment 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 June 27, 1990 and the case was committed in session on June 15, 1992. His contention is that as the application u/s 482 Code of Criminal Procedure 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 Z.P.C. Gulati v. Lajya Ram AIR 1996 S.C. 595. He is also relied on the provisions of Sections 460(e) and 465 Indian Penal Code.
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 u/s 173(2) Code of Criminal Procedure. 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 Code of Criminal Procedure 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 March 21, 1996 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 connivance on June 27, 1990 it is not apparent that CD. was not produced. It is his finding that the said order may be interpreted in the manner that CD. was produced but It was not tagged with the charge sheet. In view of the finding of the Ld. Judge, it is necessary to quote the relevant portions of the order dated June 27, 1990 which is as follows:
Received challan (12 pages) in advance without CD. under Sections 120B/304/113/468 and 471 Indian Penal Code against.
After narrating the names of the accused persons who figured in the charge sheet and after stating that some of them were on bail while the rest were absconding, the Magistrate took cognizance and fixed a date for supply of copy. He also acceded to the prayer of the I.O. for issuing warrant against the absconding accused. Thereafter the order sheet runs as follows: ''seen the separate prayer of I.O. who prays for keeping the CD. with him for preparation of copies to be supplied to the accused persons''
9. The question is whether in the face of the aforesaid order, it can be considered that the documents and statements as mentioned u/s 173(5) Code of Criminal Procedure where there before the Magistrate at the time taking cognizance. The law on this point is absolutely clear that the charge sheet which is submitted u/s 173(2) Code of Criminal Procedure must be accompanied by documents and statements as mentioned under s. 173(5) Code of Criminal Procedure. The Magistrate can take cognizance of an offence only upon consideration of the aforesaid charge sheet, documents and statements. At that stage, the Magistrate has got nothing to do with the consideration of materials appearing in the case dairy. Case diary as is well known contains, the details of the case, so far as the investigation is concerned starting from the copy of the F.I.R. and ending with the copy of the charge sheet. There are several matters in the case diary which the Magistrate is not competent to take into consideration at the time of taking cognizance but his attention at that stage is limited to the charge sheet and the documents and statements as mentioned under Sections 173(2) and 173(5) Code of Criminal Procedure. In other words apart from the charge sheet he is to consider the documents or extracts thereof, if any on which the. prosecution intends to rely and statements of witnesses recorded u/s 161 Code of Criminal Procedure. Apart from these materials the Magistrate at the stage of taking cognizance is not competent to look into other materials appearing in the case diary. It is well known that a case diary contains several other matters which are extraneous to the consideration of the Magistrate at that stage. Therefore, even if the case diary would have been produce before the Magistrate along with the charge sheet that would not have been sufficient for taking of cognizance unless the Magistrate would confine his attention to the charge sheet and documents and statements as mentioned earlier.
10. The next point is a vita! one, namely, whether in view of the relevant order, portions of which having quoted above, it could be said that the CD. was before the Magistrate. I have carefully scrutinised the relevant words mentioned in the impugned orders, it is clear to me that the CD. was not before the Magistrate taking cognizance at that time. This will be clear from the words ''in advance without CD.''. Therefore, the Magistrate took cognizance only on the basis of the challan as it is termed in case investigated by Calcutta Police which terms is synonymous with charge sheet. His subsequent averment and order dealing with the prayer of the I.O. for keeping the CD. with him for the purpose of supply of copy, cannot be explained to show that the case Diary was there before the Magistrate. On the other hand, it clearly shows that the CD. was still lying with the 1.0. and he made a prayer for keeping the same in his custody which prayer was allowed by the learned Magistrate. Under the present Code of Criminal Procedure, it is the duty of the Magistrate asking cognizance of a case to direct supply of the copy to the accused persons and the law does not require the 1.0. to supply copies to the accused. Section 207 Code of Criminal Procedure casts a duty on the Magistrate to supply copies of Police Report and other documents to the accused. It is true, that there is a provision in Section 173(7) of the Code of Criminal Procedure, whereby the Police Officer investigated the case has been empowered to furnished copies of all or any of the documents referred to in Section 173(5) to the accused if the finds it convenient, so to do. But this provision can not empower the I.O. to keep the CD. with him even after submission of charge sheet. On the other hand, CD. must not remain with the I.O. but must be in the Court as soon as charge sheet is submitted which will prevent the possibility of any possible change affected in the CD.
11. For the purpose of our case, it is clear that the case diary was not before the learned Magistrate taking cognizance. Besides such presence of CD. before the Magistrate would not be sufficient to make the cognizance legal unless he confined his attention to only those documents and statements which are mentioned u/s 173(5) Code of Criminal Procedure apart from the charge sheet and considered the same before taking cognizance. Therefore, the cognizance is bad in law being invigoration of mandatory provision of the Code. The division cited by the Ld. P.P. namely P.C Gulati v. Lajya Ram( Supra) in my opinion does not help the prosecution in the least. The question before the Hon''ble Supreme Court was, whether the High Court can transfer a case pending before the Magistrate to the Court of Additional Sessions Judge for the purpose of disposal and if so, what will be the procedure to be followed by the Sessions Court. In this context Section 193 Code of Criminal Procedure has been discussed. Section 193 Code of Criminal Procedure empowers the Court of Session to take cognizance of sessions triable offence as Court of original Jurisdiction only if the same is committed by the Magistrate u/s 209 Code of Criminal Procedure.
12. It is the contention of the Ld. P.P. that as the cognizance was taken at a much earlier date, namely, on June 27, 1990 and as the objection regarding taking of cognizance was taken at a much later stage, namely, on March 7, 1996 the objection is not tenable in law specially, when in the mean time there has been commitment of the case to the Court of Sessions and taking of cognizance by the latter. The Ld. P.P. when questioned about any such limitation be existent in law pleaded his inability. The more fact that objection was taken while the matter was pending before the Sessions Court cannot make the same bad. The Ld. P.,P however, relied on Section 465 (2) Code of Criminal Procedure but in my opinion Section 465 Code of Criminal Procedure can have no application in the present case. The said sections deals with an error, omission of irregularity in the matter of complaint, summons, warrant or proclamation, order judgment or other proceeding before or during trial in any inquiry or other proceeding under the Code or any error or irregularity in any sanction for the prosecution. The section saves a finding, sentence or order passed by a Court of competent jurisdiction from being reversed or altered in this context it has been stated that in defining whether any prejudice has been caused, it will have to be seen whether the objection could and should have been raised at an earlier stage in the proceeding.
13. In the present case the trial of the case has not yet begin and there has not been any hearing as yet regarding consideration of charge. Therefore, the stage has not reached when Section 465 Code of Criminal Procedure can come into play. Besides the section deals with error, omission and irregularity and as such any illegality committed by violation of mandatory provision of the Act is not attracted by Section 465 Code of Criminal Procedure.
14. The argument that Section 460 (e) Code of Criminal Procedure curse the irregularity is not also in my opinion a sound argument. That section deals with some instances when a Magistrate not empowered by law to do, such things erroneously but in good faith does that thing, the proceeding shall not be set aside merely on the ground he is not being so empowered. The Sub-section deals with the taking of cognizance under clause a or clause b of 190 (1) Code of Criminal Procedure. Therefore, the present case is completely different because here the Magistrate taking cognizance was otherwise empowered but violated the mandatory provisions of the code. The argument advanced on behalf of the Petitioner, namely, the Petitioner has been highly prejudiced in as much as lad the Magistrate considered the charge sheet along with the documents and statements which he is required to do the question of taking cognizance against the present Petitioner would not arise because there were no material against him. This argument is of considerable substance. The taking of cognizance is not a mechanical process to be exercised by the Magistrate only because a charge sheet is there before him. He is to consider whether there is a prima facie case, after considering the materials which the law requires him to do. The order passed by him at the time of taking cognizance must reflect that he applied his judicial mind on this aspect. If it is not so, it must be considered that there was non-application of judicial mind and accordingly the cognizance cannot be upheld.
15. More lapse of time does not take away the right of the accused Petitioner in challenging this vital illegality committed by the Magistrate. The matter has not been improved in the least only because following commitment the Sessions Court has taken cognizance u/s 193 Code of Criminal Procedure. The question of taking cognizance by the Sessions Court arises only when a case is validly committed to the Session u/s 209 Code of Criminal Procedure. 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.
16. Accordingly, I come to the conclusion that the order of the Ld. Trial Judge dated March 21, 1996 cannot stand. It is true that the learned Judge to some extent realised the defect but he expressed his helplessness as because the provision of s. 482 Code of Criminal Procedure was not available to him.
17. In the result the initial taking of cognizance dated June 27, 1990 as also the impugned order dated March 21, 1996 stand set aside. The Ld. S.D.J.M., Alipore shall consider the charge sheet as also the documents and statements as mentioned u/s 173(5) Code of Criminal Procedure afresh and come to a decision regarding taking of cognizance and thereafter to proceed in accordance with law. Such exercise is to be completed by the Ld. Magistrate within a period of six (6) weeks from the date of communication of the order. Let copies of the order to be sent to the Ld. S.D.J.M. Alipore, and also Ld. Additional Sessions Judge, 14th Court, Alipore Immediately, The revisional application stands allowed.
