STATE OF MAHARASHTRAversusSHARADCHANDRA VINAYAK DONGRA AND ORS.

A                        STATE OF MAHARASHTRA
                                        v.
           SHARADCHANDRA VINAYAK DONGRA AND ORS.

                               OCTOBER 7, 1994
B
           [R.M. SAHA!, DR. AS. ANAND AND N.P. SINGH, JJ.]


          Code of Criminal Procedure, 1973:

          Sections 173(2) and 190(J)(bf-Charge-sheets filed-Cognizance
C taken-Tune sought by prosecution to make further investigation and to
    collect further additional evidence and to file additional charge-sheet-No
    order passed on the application--Whether charge-sheet incomplete-Whether
    cognizance taken was valid-Delay in filing the charge-sheel-Condonation
    without notice to the other side-Validity of
D
          Raids were conducted at the office of the respondents on 4th and 5th
    October, 1985 on the ground that offences bad been committed by them
    relating to manufacture and sale of beer without payment of Excise Duty.
    On 22nd November, 1985 cases were registered against them under various
    provisions of the Bombay Prohibition Act, 1949.
E
          After investigation, charge-sheets were filed on 21st November, 1986
    before the Cider Judicial Magistrate. The prosecution also filed two ap·
    plications, one for condonation of delay, if any, and another seeking
    permission to make further investigation and collect further additional
F   evidence In respect of the offence and to file an additional charge-sheet
    within six months from the date of the application. On 21st November,
    1986 the Chief Judicial Magistrate took cognizance of the offence and
    issued process against the respondents. On the same day, the Chief
    Judicial Magistrate allowed the application for condonation or delay. The
G   respondents challenged the said order before the High Conrt. Holding that
    no reasons were recorded and no opportunity was afforded to the respon-
    dents, though the CJM was aware that the charge-sheet was incomplete,
    the High Court quashed the proceedings.

          Against the said order of the High Court, the Stl\te Govt. preferred
H   the present appeals.
                                       378
             STATE OF MAHARASHTRA v. S.V. DONGRA                             379
      Partly allowing appeals, this Court                                           A

      HELD : 1. The High Court was perfectly justified in holding that the
delay, if any, for launching the prosecution, could not have been condoned
without notice to the respondents and behind their back and without
recording any reasons for condonation of the delay. However, having come            B
to that conclusion, it would have been appropriate for the High Court,
without going into .the merits of the case, to have remitted the case to the
Trial Court, with a direction to decide the application for condonation or
delay afresh after bearing both sides. The High Court however, did not
adopt that course and proceeded further to hold that the Trial Court could
not have taken cognizance of the offence in view of the application filed by        C
the prosecution seeking permission of the Court to file a "supplementary
charge-sheet" on the basis or an 'incomplete charge-sheet' and quashed the
order of the CJM dated 21.11.1986 on this ground also. This view of the
High Court in the facts and circumstances of the case Is patently er·
roneous. [382-F-H]                                                                  D

       2.1. If the police report and the material filed therewith are sufficie'!t
to satisfy the Magistrate that he should take cognizance, his power is not
fettered by the label which the investigating agency chooses to give to the
report submitted by it under Section 173(2) Cr.P.C. Merely, because the
prosecution had filed an application, after submission of the charge-sheet,         E
seeking permission to file "supplementary charge-sheet", it could not affect
the jurisdiction of the Magistrate to take cognizance, if he was otherwise
satisfied from the material already placed before him alongwith the
charge-sheet that cognizance of the offence was required to be taken. It is
the jurisdiction of the Magistrate and Magistrate alone to decide whether           F
the material placed by the prosecution with the report (charge sheet) is
sufficient to take cognizance or not. The power of the Magistrate to take
cognizance cannot be controlled by the investigating agency, whose duty is
only to investigate and place the facts and the evidence before the
Magistrate. [383-G·H, 384-A-B)
                                                                                    G
       2.2. In the instant case, the Chief Judicial Magistrate was obviously
satisfied with the sufficiency of the material placed by the prosecution
before him with the report for taking cognizance of the offence and be,
therefore, proceeded further after taking cognizance and directed the
issuance of process against the respondents. The prayer of the investigat· H
    380                   SUPREME COURT REPORTS [1994] SUPP. 4S.C.R.

A Ing agency seeking permission to further investigate and submit a 'sup·
  plementary charge-sheet' could not vitiate the cognizance taken by the
  Chief Judicial Magistrate nor denude him of his jurisdjction to take
  cognizance of the offence. The High Court while quashing the order dated
  21.11.1986, did not record any finding to the effect that the exercise of
B discretion by the Magistrate in taking cognizance of the offence and
  issuing process was in any way improper or that the cognizance was taken
  on the basis of the material on which no reasonable person could have
  taken cognizance. Tii• High Court quashed the order only because it was
  influenced by the application filed by the prosecution seeking permission
  to record additional evidence and file a 'supplementary charge-sheet' and
C Crom that it infered that the report earlier filed by the prosecution was
  'incomplete'. High Court even over-looked the fact that the application
  filed by the prosecution bad not even been allowed by the Chief Judicial
  Magistrate and bad been only adjourned for orders. [384·C·Fl

          3. The police report submitted before the Chief Judicial Magistrate
D   did not say that it was .-.n 'incomplete' charge-sheet or police report. The
    High Court was, therefore, not at all justifted in. opining that since the
    charge-sheet on the prosecution's own showing was 'incomplete", the Chief
    Judicial Magistrate could not have taken cognizance of the offence and
    quash the order of the CJM taking cognhance of the offence.
E                                                                (384-H, 385-A]
           4. Since the Chief Judicial Mai:istr8te condoned the delay for launch·
    Ing the prosecution without notice to the respondents and without afford·
    Ing any opportunity to the respondents to have their say, the case deserves
    to be remitted to the Chief Judicial Magistrate for deciding the application
F   filed by the prosecution seeking condonation of delay, if any, afresh in
    accordance with law after hearing both the parties. It is after the decision
    of the application for condonation of delay that the Chief Judicial
    Magistrate shall proceed further in the matter. (385-D]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
G   Nos. 697-703 of 1994.

         From the Judgment and Order dated 1.2.90/11.2.91 of the Bombay
    High Court in Cr!. Application Nos. 531, 623-26 & 812/87 and 1868of1987.

H                                      WITH
         STATE OF MAHARASHTRA v. S.V. DONGRA [DR. ANAND, J.]             381

          Criminal Appeal No. 704 of 1994.                                     A
          From the Judgment and Order dated 8.8.91 of the Bombay High
     Court in Cr!. Application No. 623 of 1991.

          S.K. Dholakia, DJ. Mulla and A.S. Bhasme for the Appellant.
                                                                               B
          S.C. Maheshwari and Ms. Sandhya Goswamy for the Respondents.

          The Judgment of the Court was delivered by

          DR ANAND, J. Leave granted.

           On 23rd of August, 1985, officers of the Prohibition and Excise
                                                                               c
     Department of the State of Maharashtra alongwith the officers of the
     Sales-Tax and Income-Tax Departments carried out surprise raids at the
     brewery of M/s Doburg Lager Breweries Pvt. Ltd., a company incorporated .

""   under the Companies Act at Satara. Searches were also made at the office
     of the respondent on 26th August, 1985 and 4th of October, 1985. The raids D
     were conducted on the ground that offences had been committed by the
     respondent relating to manufacture and selling of beer without payment of
     Excise Duty. On 22n~ November, 1985 cases were registered against the
     respondent under Sections 65(b), (d), (e); 66(1)(b); 72; 75(c); 77(b); 79;
     82(1); 83 and 108 of the Bombay Prohibition Act, 1949.                     E
            After the registration of the cases against the respondents investiga-
     tion was carried out and on 21st of November 1986, five charge-sheets were
     filed before the Chief Judicial Magistrate, Satara. Simultaneously, the
     prosecntion also filed two applications before the CJM. In the first applica-
     tion, if was stated that though the nature of the offence was a continuing F
     one and therefore there was no delay in filing the charge-sheet but if for
     any technical reason it appeared to the Court that there was some delay
     in filing the same then, considering the nature and gravity of the offence,
     the delay may kindly be condoned. In the second application, the prosecn-
     tion inter alia stated that the bulk of the evidence had been recorded and
     filed alongwith the charge-sheet, some evidence against some of the ac- · G
     cnsed persons, who had not been sent up for trial, was yet to be collected
     and therefore permission was sought to make 'further investigation' and
     collect further additional evidence in respect of the offence and to file an
     "additional charge-sheet" within six months from the date of the applica-
     tion. On 21.11.1986, the CJM took cognizance of the offence and issued H
    382                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A process against the respondents. While the second application was kept
    pending for orders, the application for condonation of delay was allowed
    on 21.11.1986 itself. The respondent challenged the order of the Chief
    Judicial Magistrate dated 21.11.1986 in the High Court and sought quash-
    ing of the same in exercise of the inherent powers of the High Court under
B   Section 482 Cr.P.C. The case of the respondents before the High Court
    was that the learned Chief Judicial Magistrate could not have condoned
    the delay in launching the prosecution without notice to the respondents
    and permitting them to have their say. The order of the Chief Judicial
    Magistrate dated 21.11.1986 was also assailed on the ground that the Court
    could not take cognizance of the offence on an "incomplete police report"
C   and therefore, it had no jurisdiction to issue the process against the
    respondents.




D
          The High Court found that the Chief Judicial Magistrate, on
    21.11.1986, had allowed the application for condonation of delay in filing
    the charge-sheet, without recording any reasons and without hearing the
                                                                                    .
    respondents and behind their back. The High Court further found that the
    Chief Judicial Magistrate was aware from the application filed by the
    prosecution that the charge-sheet was 'incomplete' and as such, it could
    not have taken cognizance of the offence and it had no jurisdiction to issue
    the process against the respondents. The proceedings, including the is-
E   snance of process, were accordingly quashed.

          In onr view, the High Court was perfectly justified in holdfug that the
    delay, if any for launching the prosecution, could not have been condoned
    without notice to the respondents and behind their back and without
F   recording any reasons for condonation of the delay. However, having come
    to that conclnsion, it would have been appropriate for the High Court,
    without going into the merits of the case to have remitted the case to the
    Trial Court, with a direction to decide the application for condonation of
    delay afresh after hearing both sides. The High Court however, did not
    adopt that course and proceeded further to hold that the Trial Court could
G   not have taken cognizance of the offence in view of the application filed
    by the prosecution seeking permission of the Court to file a "supplementary
    charge-sheet' on the basis of an 'incomplete charge-sheet' and quashed the
    order of the CJM dated 21.11.1986 on this ground also. This view of the
    High Court, in the facts and circumstances of the case is patently er-
H   roneous.
     STATE OF MAHARASHTRA v. S.V. DONGRA[DR. ANAND, J.)               383

      Section 173(2) of the Code of Criminal Procedure provides that as A
soon as investigation is completed, the officer-in-charge of the police
station shall forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by .the State
Government stating :

        (a) the names of the parties;                                       B

        (b) the nature of the information;

        (c) the names of the persons who appear to be acquainted with
        the circumstances of case;
                                                                            c
        (d) whether any offence appears to have been communicated and,
        if so, by whom;

        (e) whether the accused has been arrested;

        (!) whether he has been released on his bond and, if so, whether    D
        with or without sureties;

        (g) whether he has been forwarded in custody under Section 170.

       The purpose of the submission of the police report with the details
as mentioned above, is to enable the Magistrate to satisfy himself, whether E
on the basis of the report and the material filed alongwith the police report,
a case for taking cognizance has been made out or not. After applying his
mind to the police report and the material submitted therewith, if the
Magistrate is satisfied that cognizance of the offence is required to be
taken, he shall proceed further in accordance with the provisions of the F
Code of Criminal Procedure. Section 190(1)(b) Cr.P.C. proyides that a
Magistrate has the power to take cognizance upon a police report of such
facts as are provided therein on being satisfied that the case is ~fit one for
taking cognizance of the offence. Therefore, if the police report and the
material filed therewith are sufficient to satisfy the Magistrate that he G
should take cognizance, his power is not fettered by the label which the
investigating agency chooses to give to the report submitted by it under
Section 173(2) Cr.P.C. Merely, because the prosecution had filed an ap-
plication, after submission of the charge-sheet, seeking permission to file
"supplementary charge-sheet", it could not affect the jurisdiction of the
Magistrate to take cognizance, if he was otherwise satisfied from the H
    384                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A   material placed before him alongwith the charge-sheet that cognizance of
    the offence was required to be taken. It is the jurisdiction of the Magistrate
    and Magistrate alone to decide whether the material placed by the
    prosecution with the report (charge sheet) was sufficient to take cog-
    nizance or not. The power of the Magistrate to take cognizance cannot be
    controlled by the investigating agency, whose duty is only to investigate and
B
    place the facts and the evidence before the Magistrate.

          In the instant case, the Chief Judicial Magistrate was obviously
    satisfied with the sufficiency of the material placed by the prosecution
    before him with the report for taking cognizance of the offence and he
C therefore proceeded further after taking cognizance and directed the is-
  suance of process against the respondents. The prayer of the investigating
  agency seeking permission to further investigate and submit a 'supplemen-
  tary charge-sheet' could not vitiate the cognizance taken by the Chief
  Judicial Magistrate nor denude him of his jurisdiction to take cognizance
D of the offence. The High Court while quashing the order dated 21.11.1986,
  did not record any finding to the effect that the exercise of discretion by
  the Magistrate in taking cognizance of the offence and issuing process was
  in any way improper or that the cognizance was taken on the basis of the
  material on which no reasonable person could have taken cognizance. The
  High Court quashed the order only because it was influenced by the
E application filed by the prosecution seeking permission to record addition-
  al evidence and file a 'supplementary charge-sheet' and from that it infered
  that the report filed by the prosecution was 'incomplete'. High Court even
  over-looked the fact that the application filed by the prosecution had not
  even been allowed by the Chief Judicial Magistrate and had been only
F adjourned for orders. We cannot persuade ourselves to accept the view of
  the High Court that if the investigating officer terms a police report as
  "incomplete", it takes away the jurisdiction of the Magistrate to take
  cognizance of the offence, even if in the opinion of the Magistrate, the
  material is sufficient for him to be satisfied that it was a fit case for him to
  take cognizance of the offence. The Magistrate is not bound by the label
G given to the report or the charge-sheet by the investigating officer and it is
  for him to decide whether the report and the material on which it is based,
  is sufficient for him to take cognizance or not. It is pertinent to notice that
  the police report submitted before the Chief Judicial Magistrate, did not
  even say that it was an "incomplete" charge-sheet or police report. The
H High Court was, therefore, not at all justified in opining that since the
       STATE OF MAHARASHTRA v. S.V. DONORA [DR. ANAND, J.]               385

charge-sheet on the prosecution's own showing was "incomplete", the Chief A
Judicial Magistrate could not have taken cognizance and quash the order
of the CJM taking cognizance of the offence. We may also record at this
stage that Shri Dholakia, the learned Senior counsel appearing for the
appellant submitted before us that apart from the material already filed
with the police report/charge-sheet, on the basis of which the Chief Judicial B
Magistrate took cognizance on 21.11.1986, the State does not intend to file
any further material by way of any supplementary charge sheet before the
Trial Court. The statement of Shri Dholakia, adequately protects the.
interest of the respondents. In view of the statement of Mr. Dholakia, we
are relieved of the necessity to deal with the effect of Section 173(8)
Cr.P.C. in this case.                                                         C
       Since the Chief Judicial Magistrate condoned the delay for launching
the prosecution, without notice to the respondents and without affording
any opportunity to the respondents to have their say, the case deserves to
be remitted to the Chief Judicial Magistrate for deciding the application
filed by the prosecution seeking condonation of delay, if any, afresh in        D
accordance with law after hearing both the parties. It is after the decision
of the application for condonation of delay that the Chief Judicial
Magistrate shall proceed further in the matter. The finding of the High
Court that the CJM could not take cognizance of the offence on the basis
of 'incomplete' police report, for the reasons already recorded, is, however,   E
set aside. The Chief Judicial Magistrate shall proceed further in accord-
ance with law after deciding the application seeking condonation of delay.
Nothing said herein above, shall, however, be· construed as any expression
of opinion on the lllerits of the case.

       The appeal succeeds in part in the above terms.                          F
G.N.                                                Appeals partly allowed.