TaxTMI 
TaxTMI 
2015 (3) TMI 1349
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to writing and the same shall be signed by the complainant, the witnesses and the Magistrate. Under Section 202 of Code of Criminal Procedure, the Magistrate, if required, is empowered to either inquire into the case himself or direct an investigation to be made by a competent person "for the purpose of deciding whether or not there is sufficient ground for proceeding". If, after considering the statements recorded Under Section 200 of Code of Criminal Procedure and the result of the inquiry or investigation Under Section 202 of Code of Criminal Procedure, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so. Chapter XVI Code of Criminal Procedure deals with "Commencement of Proceedings before Magistrate". If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate has to issue process Under Section 204(1) of Code of Criminal Procedure for attendance of the accused. 2. In the instant case, we are called upon to decide the scope of the 'opinion of Magistrate' on sufficient ground for proceeding....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ccused. 8. In Pepsi Foods Limited and Anr. v. Special Judicial Magistrate and Ors. (1998) 5 SCC 749, this Court has held that exercise Under Section 204 of Code of Criminal Procedure of summoning an accused in a criminal case is a serious matter and that the process of criminal law cannot be set into motion in a mechanical manner. It was also held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law governing the issue. To quote: 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... issue of process to the accused, Magistrate has to form an opinion that a prima facie case is made out against the accused. At that stage, the Magistrate is also competent to consider whether there are inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant. To quote: 5.... It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(2000) 3 SCC 745, the position was further clarified that it was not necessary to pass a speaking order at the stage of taking cognizance. 16. In Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors. (2003) 4 SCC 139, this Court considered the situation where the impugned order passed by the Magistrate read as follows: "Cognizance taken. Register the case. Issue summons to the accused". It was held that "at the stage of issuing the process to the accused, Magistrate is not required to record reasons". Kanti Bhadra Shah (supra) and U.P. Pollution Control Board (supra) were also referred to in the said decision. 17. In Jagdish Ram v. State of Rajasthan and Anr. (2004) 4 SCC 432, the law was restated holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction. To quote: 10.... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient gro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns is issued to notify an individual of his legal obligation to appear before the Magistrate as a response to the alleged violation of law. It was further held that in the process thus issued, the Magistrate need not explicitly state the reasons. Paragraphs-11 to 13 contain the relevant discussion, which read as follows: 11. In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means 'become aware of and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....190(1)(b) of Code of Criminal Procedure, the Magistrate has the advantage of a police report and Under Section 190(1)(c) of Code of Criminal Procedure, he has the information or knowledge of commission of an offence. But Under Section 190(1)(a) of Code of Criminal Procedure, he has only a complaint before him. The Code hence specifies that... "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance Under Section 190(1) (a) of Code of Criminal Procedure. The complaint is simply to be rejected. 23. The steps taken by the Magistrate Under Section 190(1) (a) of Code of Criminal Procedure followed by Section 204 of Code of Criminal Procedure should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with t....