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2017 (7) TMI 178 - HC - Indian LawsSpecial Judge cognizance of the offence when there is no evidence found by the investigating agency/CBI - Held that - As per the prosecuting agency/CBI no case is made out against the petitioners. There is no occasion for the trial Court to look into additional evidences to give direction under Section 173(8) Cr.P.C. since there is no additional evidence filed on record and the prosecuting agency/CBI takes stand on their investigation and the closure report qua against the petitioners therefore, the cognizance taken against the present petitioners is bad. Even if the prosecution case taken to be gospel truth still do not constitute prima facie case qua the present petitioners in absence of any evidence against the petitioners in the charge-sheet filed by the respondent CBI. The cognizance taken qua the present petitioners without taking recourse under Section 173(8) Cr.P.C. for further investigation is hereby set aside.
Issues Involved:
1. Quashing and setting aside the impugned summoning order dated 23.04.2015. 2. Examination of whether the Special Judge could take cognizance of the offence without sufficient evidence. 3. Analysis of the evidence and the role of the petitioners in the alleged offences. 4. Consideration of further investigation under Section 173(8) Cr.P.C. Issue-wise Detailed Analysis: 1. Quashing and Setting Aside the Impugned Summoning Order: The petitioners sought to quash the summoning order dated 23.04.2015 issued by the learned Special Judge (PC Act) (CBI)-6, Patiala House Court, New Delhi. The petitioners argued that the trial court wrongly took cognizance and summoned them without proper evidence or directions for further investigation under Section 173(8) Cr.P.C. The court found that the trial court had erred in taking cognizance against the petitioners without sufficient evidence, leading to the setting aside of the impugned summoning order. 2. Examination of Cognizance by the Special Judge: The central question was whether the Special Judge could take cognizance of the offence against the petitioners when no evidence was found by the investigating agency (CBI). The court noted that cognizance is taken of an offence and not of an offender. The Special Judge took cognizance based on the material evidence placed on record along with the charge-sheet filed under Section 173 Cr.P.C., despite the petitioners not being charge-sheeted. The court emphasized that the trial court should have exercised its judicial mind under Section 173(8) Cr.P.C. for further investigation instead of taking cognizance without sufficient evidence. 3. Analysis of Evidence and Role of Petitioners: The investigation revealed that the petitioners were involved in a criminal conspiracy with customs officers to demand and accept bribes for processing import/export-related work. The CFSL expert provided a positive opinion regarding the voice specimens of the accused, including the petitioners. However, the investigation concluded that there was no recovery of the bribe amount, no clear demand of bribe by M.S. Badhan, and the key persons used guarded language in their conversations. The evidence of telephonic conversation was considered corroborative but not conclusive. The court found that the allegations against the petitioners did not constitute a prima facie case in the absence of sufficient evidence. 4. Consideration of Further Investigation: The court highlighted that if the trial court found insufficient evidence against the petitioners, it had the option to direct further investigation under Section 173(8) Cr.P.C. The trial court failed to issue such directions and instead took cognizance based on existing evidence, which the CBI itself stated was insufficient. The court referred to the Supreme Court judgment in Pepsi Foods Ltd. v. Special Judicial Magistrate, emphasizing that summoning an accused in a criminal case is a serious matter and requires careful scrutiny of evidence. Conclusion: The court concluded that the trial court's cognizance taken against the petitioners without taking recourse under Section 173(8) Cr.P.C. for further investigation was improper. Consequently, the impugned orders dated 23.04.2015 were set aside, and the summoning order against the petitioners was quashed. The petitions were allowed, and the judgment was directed to be sent to the concerned courts.
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