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TMI Blog1995 (6) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... ne ground that it was incompetent for the learned Magistrate to take cognizance of the alleged offence by his impugned Order dated 9th November, 1991, only on the basis of the charge-sheet, in the absence of the documents required to be furnished to the Court under Sub-section (5) of Section 173 of the Code, as he did. 2. The petitioners, along with others, have been prosecuted for having allegedly committed offence punishable under Sections 420/468/47. Indian Penal Code on the allegations made in the F. I. R. alleging, inter alia, that in a number of cases, some importers have submitted guarantees from Federal Bank Lad, for release of imported goods as per orders of the Hon'ble High Court at Calcutta. Since the cases are pending before the Court, the Bank Guarantees are required to be kept valid for realisation of Government dues. It has been alleged that since a large number of Bank Guarantees were submitted to Customs Authorities, officials of Federal Bank Ltd. made enquiries about issuance of a large number of Bank Guarantees from the Bank. On verification, they could conclusively say that 45 Bank Guarantees have been used, and those Bank Guarantees were under purported sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase: (d) whether any offence appears lo have been committed, and, if so, by whom: (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties: and (g) whether he has been forwarded in custody under Section 170. Sub-section (5) of Section 173 makes it obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses at the trial. 5. The Supreme Court in Satya Narain Musadi v. State of Bihar, 1980CriLJ227 has observed that on the introduction of Section 173 in its form in the Code the police officer investigating into a cognizable offence is under a statutory obligation lo submit along with his report under Section 173(2) documents purporting to furnish evidence collected in the course of the investigation and the statements of the witnesses, and the Court before proceeding into the case is under a duty lo inquire whether the accused has been furnished with copies of all relevant documents received under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 Cal WN 606 has also held that since the documents and statements (under Section 173(5) of the Code) are parts of the police report they are to be placed, along with such report before the Magistrate/Judge at the time of taking cognizance by them, and the learned Magistrate/Judge before taking cognizance must look into the said report and also into the documents and statements. A similar view has also been recently taken by another learned single Judge of our Court in his Judgment and Order dated 5th May 1995 in Criminal Revision Case No. 26 of 1995, the record of which had been requisitioned during the hearing at the instance of the petitioners. There is nothing to depart from the aforesaid views taken by the aforesaid two learned Judges of our Court on the aforesaid point following the decision of the Supreme Court in the case of Satya Narain Musadi and Ors. v. State of Bihar (1980 Cri LJ 227) (supra), 8. The learned Advocate for the Opposite Party No. 2. Mr. Amit Talukdar, on the other hand, had referred me to Paragraph 44 of the decision of the Supreme Court in State of West Bengal v. Md. Khalid etc. etc., to state the meaning of taking cognizance . The Supreme Court has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, or he may take cognizance of the offence under Section 190(1)(b) of the Code on the basis of the Police Report. The Supreme Court in the aforesaid decision in State of Maharashtra v. Sharad Ch. Vinayak Dongre (supra) has further observed that the purpose of the submission of the police report with the details is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with 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 Code of Criminal Procedure. Section 190(1)(b). Cr. P. C. provides 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 a fit one for taking cognizance of the offence. In view of the aforesaid decisions of the Supreme Court, a Magistrate may or may not take cognizance of an offence upon a police report and the materials filed therewith on due application of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents under Section 173(5) of the Code. The learned Chief Metropolitan Magistrate. Calcutta, was not, therefore, justified in taking cognizance of the alleged offence on the basis of such incomplete report. The cognizance taken by him by his impugned order dated 9th November. 1991, cannot be said to be according to law, and is liable to be quashed. 13. In the result, the impugned order passed by the learned Chief Metropolitan Magistrate, Calcutta, dated 9th November, 1991 be hereby set aside. Let the matter be sent back to him for consideration as to whether cognizance of the alleged offence should be taken by him or not upon due application of his judicial mind (sic) on the basis of the relevant Police Report under Section 173(2), Cr. P. C. and the accompaniments under Sub-section (5) of Section 173 of the Code, in the light of the discussions above, and for disposal of the relevant case according to law. 14. The Investigating Agency is also directed to submit all relevant documents/papers, as contemplated under Sub-section (5) of Section 173 of the Code before the learned Magistrate, if not already submitted, so as to enable the latter to act in terms of this Order. 15. Sinc ..... 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