REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1408                  0F 2008 (Arising out of S.L.P.(Criminal) No. 3482 of 2006)

FAKHRUDDIN AHMAD — APPELLANT

VERSUS

STATE OF UTTARANCHAL & ANR. — RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2. This appeal, by special  leave, arises from the order dated

21st June, 2006 passed by the High Court of Uttaranchal in

Criminal  Misc.  Application  No.434  of  2006.   By  the

impugned order, the High Court has dismissed the petition

preferred by the appellant under Section 482 of the Code of

Criminal  Procedure,  1973  (for  short  ‘the  Code’),  seeking

quashing  of  the  chargesheet  dated  16th December,  2005

and  consequent  proceedings  initiated  against  him  by

respondent No.2 in this appeal,  hereinafter referred to as

the  complainant,  for  allegedly  committing  offences

punishable under Sections 420, 467,  468 and 471 of the

Indian Penal Code, 1860 (for short ‘the I.P.C.’).

3. A few material facts giving rise to the present appeal are:

The  appellant  owns  a  poultry  farm.   According  to  the

appellant, he used to supply chickens to the complainant and

his partner on cash and credit basis. On 15th June, 2005, the

complainant is stated to have issued a cheque in the sum of

Rs.8,65,000/- drawn on Union Bank of India in favour of the

appellant against the balance payment due.  When the cheque

was  presented  for  payment,  it  was returned  unpaid  by  the

Bank with the remarks ‘having no fund’.  Thereupon, on 7th

September,  2005, the appellant served a legal notice on the

complainant and his partner in terms of Section 138 of the

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Negotiable Instruments Act, 1881 (for short ‘the Act’), calling

upon them to make  payment  against  the  said cheque.   On

getting  the  said  notice,  the  complainant  is  stated  to  have

cooked up a story that he had issued blank cheques bearing

his  signatures  to  one  Salim Ali  as  security  for  Rs.30,000/-

borrowed by him along with  a guarantee receipt dated 25th

June,  2005  on  a  stamp  paper.   Salim  Ali  misplaced  the

aforementioned  blank cheque,  which was  fraudulently  used

by the appellant by filling up the amount of Rs.8,65,000/- and

was  presented  to  the  banker  for  encashment.   The

complainant claims to have informed the bank about the loss

of the cheque.

4. On  15th September,  2005,  the  complainant  lodged  a

complaint  against  the  appellant  before  the  Judicial

Magistrate alleging commission of offences under Sections

420, 467, 468 and 471 I.P.C. The learned Magistrate, vide

his order dated 19th September, 2005, directed the police to

register the case and investigate it.   In the meanwhile, on

10th October, 2005, the appellant filed a complaint against

the complainant and his partner under Section 138 of the

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Act  and Section 420 I.P.C.   The  Judicial  Magistrate  took

cognizance of the complaint and issued summons against

the complainant.   

5. Aggrieved by the filing of the complaint by the complainant,

the  appellant  moved  the  High  Court  for  quashing  of  the

proceedings  before  the  Magistrate.   As  noted  above,  the

High Court declined to interfere.  Dismissing the petition,

the High Court observed thus:

“The prosecution has collected the evidence in this matter, though the evidence has not been filed before this Court by the applicant.  Non- presentation of the statements recorded under Section  161  Cr.P.C.  leads  me  to  take  an assumption that the prosecution has led the evidence  to support  to the contention of  the complainant.   If  there  is  an evidence  and it discloses the prima facie case (sic) against the present applicant, there is no requirement of the  said  statement  at  this  stage.   If  the applicant wants to make any such averment or  submission that  it  cannot  be  believed  on account  of  certain  contradictions  in  the documents,  it  can only be raised during the trial.  This court cannot evaluate the disputed facts of the case.  This court cannot decide as to whether the evidence is reliable or not.”

Hence the present appeal.

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6. Mr. Salman Khurshid, learned senior counsel, appearing on

behalf of the appellant submitted before us that the order

passed  by  the  High  Court  dismissing  the  petition  is

unsustainable both in law as also on facts of the case.  It

was contended that the High Court failed to appreciate that

the  Magistrate  had  decided  to  proceed  with  the  case

improperly  without  application  of  mind,  which  is  evident

from the  fact  that:  (i)  the  report  submitted  by  the  police

pursuant to the direction issued by the Magistrate under

Section 156(3) of the Code was in favour of the appellant;

(ii) the cheque in question was neither seen nor seized by

the  investigating  officer  and  (iii)  the  chargesheet  filed  is

perfunctory inasmuch as the assertions made therein, even

if taken on face value, do not satisfy the ingredients of any

of  the  offences  alleged  to  have  been  committed  by  the

appellant.   It  was  urged  that  the  complaint  against  the

appellant  was  frivolous  and  had  been  instituted  with  an

ulterior  motive  to  wreak  vengeance  and  to  pre-empt  the

filing of complaint against the complainant under Section

138 of the Act.  It was, thus, argued that the parameters of

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its jurisdiction under Section 482 of the Code laid down by

this Court in State of Haryana & Ors. Vs. Bhajan Lal &

Ors.1 are clearly attracted on facts in hand and, therefore, it

was a fit case where the High Court ought to have exercised

its jurisdiction under the said provision.

7. Per contra, Ms. Anagha S. Desai, learned counsel appearing

on behalf  of  the  complainant,  while  supporting  the  order

passed  by the  High  Court,  submitted  that the  assertions

made  in  the  chargesheet  on  the  basis  of  the  material

collected by the police do constitute cognizable offences and

as  such,  the  High  Court  was  justified  in  dismissing  the

petition.

8. Before examining the rival contentions, we may briefly refer

to some of the relevant provisions in the Code.  Chapter XIV

of the Code, containing Sections 190 to 199 deals with the

statutory  conditions  requisite  for  initiation  of  criminal

proceedings  and  as  to  the  powers  of  cognizance  of  a

Magistrate.   Sub-section  (1)  of  Section  190  of  the  Code

empowers a Magistrate to take cognizance of an offence in

1  1992 Supp (1) SCC 335

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the manner laid therein.  It provides that a Magistrate may

take  cognizance  of  an offence  either  (a)  upon receiving  a

complaint  of  facts  which  constitute  such  offence;  or  (b)

upon a police report of such facts; or (c) upon information

received  from any  person  other  than  a  police  officer,  or

upon  his  own  knowledge,  that  such  offence  has  been

committed.   Chapter  XV containing  Sections  200  to  203

deals with “Complaints to Magistrates” and lays down the

procedure  which  is  required  to  be  followed  by  the

Magistrate  taking  cognizance  of  an offence  on  complaint.

Similarly,  Chapter  XVI  deals  with  “Commencement  of

Proceedings before Magistrates”.   Since admittedly,  in the

present  case,  the  Magistrate  has taken cognizance  of  the

complaint  in  terms of  Section  190  of  the  Code,  we shall

confine our discussion only to the said provision.  We may,

however, note that on receipt of a complaint, the Magistrate

has more than one course  open to him to determine the

procedure  and  the  manner  to  be  adopted  for  taking

cognizance of the offence.   

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9. One of the courses open to the Magistrate is that instead of

exercising  his  discretion  and  taking  cognizance  of  a

cognizable  offence  and following the  procedure  laid  down

under Section 200 or Section 202 of the Code, he may order

an investigation to be made by the police under Section 156

(3)  of  the  Code,  which the  learned  Magistrate  did  in  the

instant case.   When such an order is made, the police is

obliged to investigate the case and submit a report under

Section 173 (2) of the Code.  On receiving the police report,

if the Magistrate is satisfied that on the facts discovered or

unearthed by the police there is sufficient material for him

to take cognizance of the offence, he may take cognizance of

the offence under Section 190 (1) (b) of the Code and issue

process straightway to the accused.  However, Section 190

(1) (b) of the Code does not lay down that a Magistrate can

take cognizance of an offence only if the investigating officer

gives an opinion that the  investigation makes  out  a case

against  the  accused.   Undoubtedly,  the  Magistrate  can

ignore  the  conclusion(s)  arrived  at  by  the  investigating

officer.   

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10.Thus,  it  is  trite  that the Magistrate is not bound by the

opinion of the investigating officer and he is competent to

exercise his discretion in this behalf, irrespective of the view

expressed by the police in their report and decide whether

an offence has been made out or not.  This is because the

purpose of the police report  under Section 173 (2)  of  the

Code, which will contain the facts discovered or unearthed

by the police as well as the conclusion drawn by the police

therefrom is  primarily  to  enable  the  Magistrate  to satisfy

himself whether on the basis of the report and the material

referred therein, a case for cognizance is made out or not.

11.The  next  incidental  question  is  as  to  what  is  meant  by

expression ‘taking cognizance of an offence’ by a Magistrate

within the contemplation of Section 190 of the Code?

12.The expression ‘cognizance’ is not defined in the Code but

is a word of indefinite import.  As observed by this Court in

Ajit  Kumar  Palit  Vs.  State  of  West  Bengal2,  the  word

‘cognizance’  has  no  esoteric  or  mystic  significance  in

criminal law or procedure.  It merely means—become aware

2  [1963] Supp. 1 S.C.R. 953

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of and when used with reference to a Court or Judge,  to

take notice of judicially.  Approving the observations of the

Calcutta  High  Court  in  Emperor  Vs.  Sourindra  Mohan

Chuckerbutty3, the Court said that ‘taking cognizance does

not involve any formal action; or indeed action of any kind,

but occurs as soon as a Magistrate,  as such,  applies his

mind to the suspected commission of an offence.’

13.Recently,  this Court  in  S.K. Sinha,  Chief Enforcement

Officer  Vs.  Videocon  International  Ltd.  &  Ors.4,

speaking through C.K.  Thakker,  J.,  while  considering the

ambit  and scope  of  the  phrase  ‘taking  cognizance’  under

Section  190  of  the  Code,  has  highlighted  some  of  the

observations of the Calcutta High Court in Superintendent

&  Remembrancer  of  Legal  Affairs,  West  Bengal  Vs.

Abani  Kumar  Banerjee5,  which  were  approved  by  this

Court in R. R. Chari Vs. State of U.P.6.  The observations

are:

3  (1910) I.L.R. 37 Calcutta 412 4  (2008) 2 SCC 492 5  A.I.R. (37) 1950 Calcutta 437 6  A.I.R. (38) 1951 SC 207

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“7. … What is ‘taking cognizance’ has not been  defined  in  the  Criminal  Procedure Code,  and  I  have  no  desire  now  to attempt to define it. It seems to me clear, however,  that before it can be said that any  Magistrate  has  taken  cognizance  of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to  the  contents  of  the  petition,  but  he must  have  done  so  for  the  purpose  of proceeding  in  a  particular  way  as indicated in the subsequent provisions of this  Chapter,  proceeding  under  Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate  applies  his  mind not  for  the purpose  of  proceeding  under  the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 (3),  or  issuing  a  search warrant  for  the purpose of the investigation, he cannot be said  to  have  taken  cognizance  of  the offence.”

14.From the afore-noted judicial pronouncements, it is clear

that being an expression of indefinite import, it is neither

practicable nor desirable to precisely define as to what is

meant by ‘taking cognizance’.  Whether the Magistrate has

or has not taken cognizance of the offence will depend upon

the  circumstances  of  the  particular  case,  including  the

mode in which the case is sought to be instituted and the

nature of the preliminary action.     

15.Nevertheless, it is well settled that before a Magistrate can

be  said  to  have  taken  cognizance  of  an  offence,  it  is

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imperative  that  he  must  have  taken  notice  of  the

accusations and applied his mind to the allegations made in

the  complaint  or  in  the  police  report  or  the  information

received from a source other than a police  report,  as the

case may be, and the material filed therewith.  It needs little

emphasis  that  it  is  only  when the Magistrate  applies his

mind and is satisfied that the allegations, if proved, would

constitute  an  offence  and  decides  to  initiate  proceedings

against the alleged offender, that it can be positively stated

that he has taken cognizance of the offence. Cognizance is

in regard to the offence and not the offender.

16.Adverting  to  the  facts  on  hand,  as  noted  above,  on

presentation of the complaint by the complainant before the

Magistrate on 15th September, 2005, on its perusal, instead

of taking cognizance of the offence alleged, with a view to

issue  a  process,  the  learned  Magistrate  considered  it

appropriate  to  send  the  complaint  to  the  police  for

investigation under Section 156 (3) of the Code.  Therefore,

it cannot be said that at the initial stage on 15th September,

2005  the  Magistrate  had  taken  cognizance.  Thereafter,

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pursuant  to  the  directions  by  the  Magistrate,  the  police

registered  the  F.I.R.  on  22nd September,  2005  and

submitted its report which reads as under:

“Sir,                                           Applicant  Virendra  Singh Chauhan,  the abovementioned,  has  issued  two  blank cheques  bearing  no.  and  A/c  no.  as mentioned  back,  has  been  issued  to Salim  Ali  against  the  guarantee  for Rs.30,000/- taken from him.  The report of it being misplaced from the hands of Salim Ali has been given to Police Station and same the action has been taken in Bank by Accused Fakhruddin in relation to the cheques.  There exist no evidence regarding  this  with  the  Applicant.   The lodging  of  report  regarding  misuse  of cheques  by  Fakhruddin  or  any application  thereto  has  not  been confirmed.  Send for kind perusal.

S.I. Dinesh Rana P.S. Haldwani”

17.It appears from the afore-extracted report that the stand of

the complainant that a report regarding misplacing of the

cheque and its user by the appellant had been lodged with

the  police  was  found to  be  incorrect.   Nonetheless,  after

further investigations the police finally filed the chargesheet

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against  the  appellant  on 16th December,  2005.   Relevant

portion of the chargesheet reads thus:

“Applicant  Virendra  Singh  Chauhan  on 22.09.05 vide Order of Ld. Court u/s 156 (3)  Cr.P.C.  filed  a  report  that  accused block  no.3  after  getting  the  cheque somehow, issued by Applicant, which got misplaced  by  witness  Salim  Ali,  by  his own  accord  filled  hefty  amount  of Rs.8,65,000/-  (Rupees  Eight  Lacs  Sixty Five  Thousands  only)  and  produced  it before the Bank for the withdrawal of the same but did not get the money as cash was not there.  This case, after recording statement, case was investigated and till now  after  investigation,  against  the accused, u/s 420, 467, 468, 471 IPC is proved.   There  is  stay  arrested  against accused  from  High  Court  of  Nainital. Hence,  it  is  prayed  that  accused  be summoned and after taking evidence he be punished.”

18.Although  the  order  passed  by  the  Magistrate  taking

cognizance  is  not  before  us  but  it  is  stated  that  the

Magistrate took cognizance of the aforenoted offences on the

basis of the afore-extracted chargesheet and the statements

of various persons recorded by the police.  Learned counsel

appearing  for  the  State  placed  on  record  copies  of  the

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statements.   It  is pertinent to note that in the impugned

order, extracted above, the High Court has itself observed

that no material had been placed before it, which, in fact,

led the learned Judge to assume that the prosecution has

produced evidence in support of the complaint.  It is, thus,

manifest that in the absence of material stated to have been

filed alongwith the chargesheet, the High Court did not get

an opportunity to apply its mind as to whether on the basis

of the material before the Magistrate, a prima facie case had

been made out against the accused-appellant.  Under these

circumstances, we feel that it may not be proper to express

any opinion on the merits of the case against the appellant

based  on  the  documents  placed  before  us  by  learned

counsel  for  the  State,  save  and  except  noting  that  the

cheque in question, i.e. the ‘valuable security’ does not form

part of this set of documents.

19.So far as the scope and ambit of the powers of the High

Court  under  Section  482  of  the  Code  is  concerned,  the

same has been enunciated and reiterated by this Court in a

catena  of  decisions  and  illustrative  circumstances  under

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which the High Court can exercise jurisdiction in quashing

proceedings have been enumerated.  However, for the sake

of  brevity,  we  do  not  propose  to  make  reference  to  the

decisions on the point.  It would suffice to state that though

the  powers  possessed  by  the  High  Court  under  the  said

provision are  very  wide but  these  should  be  exercised in

appropriate  cases,  ex  debito  justitiae to  do  real  and

substantial justice for the administration of which alone the

Courts exist.  The inherent powers possessed by the High

Court  are  to  be  exercised  very  carefully  and  with  great

caution  so  that  a  legitimate  prosecution  is  not  stifled.

Nevertheless,  where the High Court is convinced that the

allegations  made  in  the  First  Information  Report  or  the

complaint,  even if  they are  taken at their  face value  and

accepted in their entirety, do not prima facie constitute any

offence or make out a case against the accused or where the

allegations  made  in  the  F.I.R.  or  the  complaint  are  so

absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there

is sufficient ground for proceeding against the accused, the

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powers of the High Court under the said provision should

be exercised.  [See: Bhajan Lal’s case (supra)]

20.Bearing in mind the above legal position, we are convinced

that  the  High  Court  was  not  justified  in  dismissing  the

petition  on  the  afore-stated  ground.   In  our  opinion,  in

order to arrive at a conclusion, whether or not the appellant

had  made  out  a  case  for  quashing  of  the  chargesheet

against  him,  the  High  Court  ought  to  have  taken  into

consideration  the  material  which  was  placed  before  the

Magistrate.   For  dismissal  of  the petition,  the High court

had to record a finding that the uncontroverted allegations,

as made, establish a prima facie case against the appellant.

In our judgment, the decision of the High Court dismissing

the petition filed by the appellant on the ground that it is

not  permissible  for  it  to  look  into  the  materials  placed

before the Magistrate is not in consonance with the broad

parameters,  enumerated  in  a  series  of  decisions  of  this

Court and briefly noted above, to be applied while dealing

with a petition under Section 482 of the Code for discharge

and, therefore, the impugned order is unsustainable.

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21.For the foregoing reasons, the impugned order is set aside

and the matter is remitted back to the High Court for fresh

consideration  in  accordance  with  law.   Nothing  said

hereinabove  shall  be  construed  as  an  expression  of  any

opinion on the merits of the case.

22.The appeal stands disposed of accordingly.

…………………………………J.      (C.K. THAKKER)  

…………………………………J.      (D.K. JAIN)

NEW DELHI; SEPTEMBER 5, 2008.  

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