S. Ravindra Bhat, J.@mdashThe petitioner invokes the inherent jurisdiction of this court, u/s 482 of the Criminal Procedure Code, for quashing criminal proceedings initiated against him, for alleged commission of offences u/s 63 and 68-A, Copyright Act. The brief facts are that on 18-1-2000, the accused, Mukesh was arrested from the shop "Music Mehal" located in Chandni Chowk. The allegation levelled was that he was in possession of 5487 pirated Audio Compact Discs (CDs) and 28523 Video CDs, inlay cards, 10500 cell phones and 10 Blue (pornographic) films. It transpired that the petitioner was owner of the shop; he claimed to have given it to the accused Mukesh as per an agreement, to manage the shop, on payment of 2% of the sale to him. On 10-11-2000 the trial Court took cognizance, and thereafter, on an application by the Asst. Public Prosecutor, for summoning of the present petitioner, the court by a detailed order dated 23-4-2000 directed inquiry into the role of the Investigating Officer, and further directed filing of supplementary challan/charge sheet, if any other material was discovered. On the basis of the supplementary charge sheet, notice was issued to the petitioner.
2. The petitioner, being aggrieved by the order of the trial court, preferred a revision petition to the Additional Sessions Judge. The latter, by detailed and reasoned order, dismissed the revision petition, on 5-3-2005. That order, and the issuance of summons to the petitioner accused, has been assailed as untenable.
3. Ld. counsel for the petitioner submitted that the order of the trial court was ex facie beyond the period of limitation prescribed u/s 468 of the Code. He submitted that the reasoning delay was caused by the action of the IO/SI N.S. Rana and that it was satisfactorily accounted for by the court, 23-04-04 is utterly unsustainable.
4. Dr. Sharma, learned counsel, also submitted that the trial court committed a grave irregularity in not even taking cognizance while issuing the order dated 25-06-04, against the petitioner. Summons to the present petitioner, as an accused and notice to the surety in the absence of cognizance was in complete violation of the prescribed procedure.
5. Learned counsel submitted that taking into consideration all the materials on record, there was nothing in the supplementary charge sheet to warrant a view different from what the police had propounded earlier, i.e. the non-involvement of the petitioner. It was urged that the mere ownership of the premises by the petitioner could not result in his culpability, in the absence of any covert or overt role. It was urged that the shop premises were let out to Mukesh, at the relevant time; he used to pay a part of the sale proceeds as commission/consideration. The agreement was admittedly supplied to the police. In fact, the petitioner was unwell, and had remained hospitalized during the period; he could therefore not be made criminally liable for the acts of the said accused Mukesh. Reliance was also placed on certain conditions in the agreement between the petitioner, and Mukesh to say that the former could not be made a party, or saddled with liabilities on account of business of Mukesh.
6. The supplementary charge sheet furnished to the court, reads as follows:
Sir,
It is respect fully submitted that, this charge-sheet (supplementary) is in continuation of charge sheet dated 09-10-2000 Inp. A.K. Saxena. Then SHO/PS. Kotwali. It is pertinent to mention that on receipt of a detailed order dated 23-04-2004 in the case, a request has made in the Court of Shri P.K. Jain MM Tees Hazari, Delhi for inspection of Judicial file of the case and the Hon''ble Court was pleased to grant the same. On inspection of the judicial file agreement dated 15-05-99 purported to have been executed by accused Mukesh and Ajay Rajpal of Music Mahal, 1486, Chandni Chowk, wherein it was mentioned that Ajay Rajpal would get a commission @ 2% per month on the monthly sales made by accused Mukesh, there is no mention of particulars of Notary Public who attested the said agreement. The witnesses who have signed the agreement, the handwriting is not legible, moreover there is no mention of address and parentage of one of the witnesses. Further it is not out of place to mention that accused Mukesh who was given basement of Music Mahal, 1486 Chandni Chowk, Delhi by Ajay Rajpal to carry on his business by virtue of abovementioned agreement was arrested in case FIR No. 578/99 P.S. Kotwali on 22-09-99. In the instant case Mukesh (accused) was arrested on 18-1-99. But Ajay Rajpal did not care to discontinue the agreement between him and accused Mukesh. The receipts of monthly commission purportedly paid @ 2% by Mukesh on monthly sales, remained unchanged and constant. The investigation was taken up on the abovementioned points and police file was also perused so as to arrive at a judicious investigation. The investigation on the points was taken up.
During the course of investigation Ajay Rajpal was subjected to sustained interrogation with regard to agreement dated 15-05-99 between him and accused Mukesh of this case. He was asked to give the details of particulars of Notary public from where the said agreement is shown to have been attested. He was also asked to furnish the names, parentage and addresses of witnesses in whose presence the said agreement was executed and they signed the same as witness to the agreement. Ajay Rajpal showed his ignorance on the above points and failed to furnish any details to ascertain the veracity and genuineness of agreement. Hence the same could not be verified with regard to its genuineness and the onus to get the same proved as genuine lies on Ajay Rajpal. With regard to getting of 2% commission on the monthly sales from Mukesh (accused) @ 1000/- per month constantly Ajay Rajpal could not furnish any document pertaining to monthly sales of accused Mukesh, who was running on business from the basement of 1486 Chandni Chowk. It is leading the investigation to arrive at a conclusion that this condition in the agreement dated 15-05-99 is a farce and fallacy, this point also goes against Ajay Rajpal, he was also asked as to why he did not terminate the agreement dated 15-05-99 between him and accused Mukesh who was arrested along with him in FIR No. 578/99 P.S. Kotwali, he could not give any reply and consequently Mukesh was again arrested in the instant case as well and which makes Ajay Rajpal for legal action in the case. As he had full knowledge that Mukesh is involved in the infringement of CR Act and provisions of Indian Penal Code he did not terminate the agreement in question and moreover the agreement which is devoid of reliable witnesses or no witnesses is considered to be non existent/ingenuine. He could not furnish reply with regard to 2% per month on sales made by Mukesh remained unchanged and was constant. When accused Mukesh was arrested in another case under the similar provisions of law, which was also registered at P.S. Kotwali, he did not terminate the agreement in question. From the investigation conducted so far it has become crystal clear that Ajay Rajpal becomes liable for legal action for the reason mentioned above. From the statement of witnesses recorded and documents collected, he could not produce any viable defence and consequently Ajay Rajpal was arrested as per law, since there is sufficient evidence gathered against Ajay Rajpal for the commission of offences as mentioned in the charge sheet, and document collected during the course of investigation have gone against accused Ajay Rajpal. The supplementary charge sheet is being sent to the Hon''ble Court for judicial verdict on the strength of documents and testimony of witnesses.
7. The revisional court, in its order observed that the trial court seemed to have taken cognizance on the supplementary charge sheet against the present petitioner, even though the term "cognizance" was not expressly used. Nevertheless, all the elements of taking cognizance were present. As far as the issue of limitation was concerned, the revisional court of the view that the trial court had satisfactorily explained the role of SI N.S. Rana who investigated the case in its order dated 23-04-04, as a reason for delayed issuance of order. So, it was held in the interests of justice, the delay had to be overlooked.
8. The precise meaning of the expression "taking cognizance" was explained by the Supreme Court, in
The following observation by Das Gupta, J., in the case of
What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence u/s 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding u/s 200 and thereafter sending it for inquiry and report u/s 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation u/s 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.
It is, however, argued that in
9. It would appear that taking cognizance implies application of mind to the materials on record, and proceeding to issue process. In
At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the Police Officer and other documents tendered along with charge-sheet. Further, upon receipt of Police report under S. 173 (2), Cr.P.C., the Magistrate is entitled to take cognizance of an offence under S. 190 (1) (b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the Police.
In view of the above rulings, the absence of the term "cognizance" in the trial Court''s order could not have taken away the basic import, which was to precisely achieve that object.
10. The next question pertains to the issue of limitation raised by the petitioner. The judgment of the Supreme Court in
The complaint cannot, therefore, be thrown out at the threshold on the ground of limitation. If, apart from the question of limitation, the effect of delay, if any, in instituting the complaint is necessary to be determined for considering the merits of the charge, that can only be done at the stage of trial on the basis of the evidence on record.
11. The materials on record to point out that the supplementary charge sheet disclosed some materials for cognizance, and summoning of the petitioner. The facts do not reveal anything warranting exercise of exceptional jurisdiction u/s 482. All courses of action, permissible in law, available before the trial court, are hereby reserved to the petitioner. In view of the above findings, I find no reason to interfere with the order of the learned Additional Sessions Judge, nor any cause to grant relief in this petition. It is accordingly dismissed, with no order as to costs.
