9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (5) TMI 982 - HC - GSTValidity of order of Magistrate in which he has ordered for police investigation after taking cognizance - it is alleged that the Magistrate had the power to call for police investigation, but he had previously not taken cognizance of the offences - prime contention of the petitioner is that the Magistrate having previously taken cognizance of the offences, cannot revert to calling for police investigation - Non-payment of GST - HELD THAT - The Magistrate had taken cognizance of the offences disclosed in the complaint. His action of perusal of the case record which led to his decision to examine the witnesses under Section 200 of Cr.P.C. at a later date clearly establishes application of mind on his part onthe allegations made in the complaint and which led to his making up his mind about the requirement of carrying out examination under Section 200 of Cr.P.C. Had the Magistrate perused the case records and was of the opinion that before deciding to take cognizance of the offence it was necessary to call for the police investigation, it was open for him to do so - The very fact that after perusal of the case record he was persuaded that there is a requirement of examination under Section 200 of Cr.P.C, would establish that he had already taken cognizance of the offence. It is well settled that the stage of examination of witness under Section 200 of Cr.P.C. would not arise before taking cognizance by the Magistrate. Thus, these two twin facts namely, the perusal of the case record by the Magistrate and the decision that he arrived on upon perusal of the case records of examining the witnesses under Section 200 of Cr.P.C. would leave no manner of doubt that on 27.11.2020 itself he had taken cognizance of the offences. It was thereafter not open for him to change the course and revert back to the initial option of requiring police investigation and calling for police report. - Unfortunately, on 02.01.2021 this is precisely what he did. In the said order, he has recorded that after hearing the learned P.P. and after perusal of the complaint, he was of the opinion that before taking cognizance, the matter may be investigated by the police. In the process, the learned Magistrate lost sight of the fact that the stage of taking cognizance had already been crossed on 27.11.2020 itself. This does not put an end to the complaint lodged before the concerned Magistrate, who shall proceed further in accordance with the law from the stage of taking cognizance of the offences disclosed - the impugned order dated 02.01.2021 is quashed - Petition allowed.
Issues Involved:
1. Whether the Magistrate had taken cognizance of the offence on 27.11.2020. 2. Whether the Magistrate could call for police investigation under Section 156(3) of Cr.P.C. after taking cognizance. 3. Whether the complainant needed to approach the police before filing a complaint with the Magistrate. 4. Applicability of IPC provisions in cases involving offences under the SGST Act. 5. Whether the Magistrate’s order was passed mechanically and without application of mind. Issue-wise Detailed Analysis: 1. Whether the Magistrate had taken cognizance of the offence on 27.11.2020: The petitioner argued that the Magistrate took cognizance on 27.11.2020 when he decided to examine the complainant under Section 200 Cr.P.C. The court agreed, noting that the Magistrate’s actions of perusing the case record and scheduling an examination under Section 200 Cr.P.C. indicated that he had applied his mind to the complaint, thus taking cognizance of the offence. 2. Whether the Magistrate could call for police investigation under Section 156(3) of Cr.P.C. after taking cognizance: The court held that once the Magistrate takes cognizance of an offence, he cannot revert to calling for police investigation under Section 156(3) of Cr.P.C. This principle was supported by various Supreme Court judgments, including R.R. Chari vs. The State of Uttar Pradesh and Gopal Das Sindhi vs. State of Assam, which clarified that cognizance is taken when the Magistrate applies his mind to proceed under Chapter XV of Cr.P.C. 3. Whether the complainant needed to approach the police before filing a complaint with the Magistrate: The court dismissed this argument, stating that Section 190 of Cr.P.C. allows a Magistrate to take cognizance of an offence upon receiving a complaint, a police report, or information from any person other than a police officer. There is no requirement to first attempt to file an FIR with the police. 4. Applicability of IPC provisions in cases involving offences under the SGST Act: The court examined whether IPC provisions could be invoked alongside offences under the SGST Act. It was noted that certain acts might constitute offences under both the SGST Act and IPC. The court referenced Supreme Court decisions, including Jayant vs. State of Madhya Pradesh and State (NCT of Delhi) vs. Sanjay, which held that IPC provisions could apply if the acts also constituted distinct offences under IPC, such as theft or criminal breach of trust. 5. Whether the Magistrate’s order was passed mechanically and without application of mind: The petitioner argued that the Magistrate’s order for police investigation was mechanical. The court found that the Magistrate had perused the record and formed an opinion before issuing the order, indicating that the decision was not mechanical. However, the court concluded that the Magistrate had already taken cognizance on 27.11.2020, making the subsequent order for police investigation on 02.01.2021 invalid. Conclusion: The High Court quashed the Magistrate’s order dated 02.01.2021, directing that the complaint be proceeded with from the stage of cognizance. The petition was allowed, and the case was remanded to the Magistrate for further proceedings in accordance with the law.
|
