IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 542 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- DHARMESH @ NANNU NITINBHAI SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR BC DAVE for Petitioner MR BY MANKAD, APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.R.VORA Date of decision: /11/2001 C.A.V. JUDGEMENT 1. This Revision Application is filed against the order passed by learned City Sessions Judge, Court No.2 below Application Exh. 3 in Session Case No. 207 of 2000 by which learned Addl.Sessions Judge rejected application Exh. 3 filed by some of the accused including present petitioner for discharging them for the offences for which charge sheet is submitted against them. 2. As per the brief facts of the case against about as many as 14 to 16 accused including present petitioner accused No.9, DCB Police Station submitted a charge sheet for the offences punishable under Sections 120(B), 121, 121(A), 122, 123, 212 and under Section 25(1), (A), (E) and 27 of the Arms Act in pursuance of Crime Register No. I-4/2000. Complaint of which came to be filed on 20th January, 2000. Though name of the present petitioner is not disclosed in the FIR, whose involvement was discovered during the course of investigation. As per the brief facts of the case sought to be made out against the accused including present petitioner, serious charges are being levelled. It is alleged that the accused in the said case are the members of Babar Khalsa group and they planned criminal conspiracy and remained in contact by telephone with Chhota Rajan of the under world of Bombay. All of them attempted to create disharmony and terror in India and to disturb the peace and tranquility. In conspiracy, the accused prepared a plan to manufacture weapons, to implement their terrorist intentions and it was their plan to instal a factory near the border of Gujarat and Rajasthan near Pakistan and to transport arms and ammunition in this country and to create terror. For raising wherewithals for their horrible intention, the accused intended to implement a plan to kidnap the then Chief Minister of Gujarat State Shri Amarsinh Chaudhary and one Dr. Amit Shah, a wealthy citizen of the State in pursuance of the conspiracy which was hatched by the accused. The accused also conspired to supply necessary deadly weapons and vehicles for implementation of the above said plans and, therefore, the above said charges are levelled against the accused including the present petitioner. 3. It appears that since there are charges against the accused for waging the war against the State and required sanction under Section 196(1) of the Criminal Procedure Code was not obtained at the relevant time, the present petitioner filed a Criminal Misc. Application No. 2003 of 2000 in this Court for quashing of the proceedings and vide order dated 6th October, 2000, this Court relying on decision of the Supreme Court in the matter of BIRENDRA K. SINGH vs. STATE OF BIHAR, reported in JT 2000 (8) 238. While dismissing the petition this Court directed the present petitioner to raise the issue before the Trial Court while framing of the charge. However, raising the contention relying upon a decision of the Apex Court in the matter of ABDUL WAHAB ANSARI vs. STATE OF BIHAR, reported in 2000(4) Crimes 152 (SC) the Application Exh. 3 came to be filed by some of the accused including petitioner for the discharge on facts as well as on the count that since the required sanction under Section 196(1) of the Code of Criminal Procedure has not been obtained and as per the above decision of the Supreme Court, the accused is not required to wait till the framing of the charge to raise this plea, the accused are required to be discharged and the court is not empowered to take cognizance in absence of sanction under Section 196(1) of the Criminal Procedure Code. 4. The factual data and certain dates will be material for deciding the issue. A charge sheet in the Metropolitan Magistrate Court came to be filed on 12th of April, 2000 and the same was registered on 13th April, 2000 by the Court of Metropolitan Magistrate. The case being triable exclusively by the Court of Sessions, the Metropolitan Magistrate vide order Exh. 18 committed the case to the Court of City Sessions vide Order dated 4th May, 2000 and the sanction under Section 196(1) of the Cri. Procedure Code was obtained on 7th May, 2000, and Court of Sessions has yet not framed the charge against the accused. On filing an Application Exh. 3 before the Court of Sessions for discharge of the accused on both the counts on facts as well as law points and since the same came to be rejected by the Court of Sessions, this Revision is filed by the original accused No.9. 5. Learned Advocate Mr. Bharat C. Dave for the petitioner revisionist and learned APP Mr. B.Y. Mankad for the respondent - State of Gujarat were heard. 6. Main contention which was urged on behalf of the petitioner is, the whole proceedings including the proceeding to commit the case to the Court of Sessions is an illegality and, therefore, the proceedings are required to be quashed because the required sanction under Section 196(1) of the Cri. Procedure Code was not obtained. Relying upon Section 196(1) of the Criminal Procedure code, learned Advocate Mr. Dave vehemently argued that the Metropolitan Court took the cognizance of the offence while committing the case to the Court of Sessions and Section 196(1) of the Code operates as an absolute bar on taking the cognizance and, therefore, the committal proceedings is an illegality and is required to be quashed. Learned Advocate has placed reliance on a decision of this Court in the matter of SHALIBHADRA v. SWAMI KRISHNA BHARTI, reported in 1980 GLR 881, wherein it was held that without the sanction under sub-sec. (1) of Sec. 196 of the Criminal Procedure Code, Magistrate cannot take cognizance and issue process where such sanction is required. Learned Advocate Mr. Dave also relied upon a decision of the Supreme Court in the matter of STATE OF U.P. vs. LAKSHMI BRAHMAN, reported in AIR 1983 SC 439 and a decision of this Court in the matter of STATE vs. ALAMZEBKHAN JANGREZKHAN ALI, reported in 1985 (1) GLR 492 and contended that while committing the case to the Court of Sessions, the Magistrate has to follow the procedure as per Sections 207, 208, etc and the same is enquiry, therefore, the Magistrate takes cognizance of the offence before he commits the case to the Court of Sessions. It was contended that the Magistrate took the cognizance of the offence without the previous sanction of the State Government as envisaged by sub-sec. (1) of Section 196 of the Criminal procedure code and committed an illegality when on 4th May, 2000 the committal order was passed, there was no sanction and Magistrate took the cognizance of the offence committing the illegality. It was therefore urged that the whole proceedings is illegal ab initio, and requires to be quashed and accused are required to be discharged because if the committal order is quashed, Sessions Court cannot take cognizance of the offence. Learned Advocate Mr. Dave contended that it is the Magistrate who takes the cognizance first and if the committal order is quashed, the Sessions Court cannot take the cognizance of the offence. It is urged that therefore the accused are required to be discharged. For that, learned Advocate Mr. Dave relied upon a decision of the Supreme Court in the matter of ANIRUDHSINHJI KARANSINHJI JADEJA vs. STATE OF GUJARAT, reported in AIR 1995 SC 2390 and in the matter of RAMBHAI NATHABHAI GADHVI vs. STATE OF GUJARAT, reported in AIR 1997 SC 3475, where the Supreme Court quashed the whole proceedings under the TADA Act where no valid sanction was obtained by the prosecution and it was urged that therefore the proceedings are required to be quashed ab initio. On facts, it was urged that there is no prima facie case against the present petitioner. In fact, the present petitioner was arrested from Swaminarayan Temple at Sarangpur and police falsely involved the present petitioner stating that the petitioner was arrested at Ahmedabad near Sarangpur Circle. It was urged that the petitioner is not at all connected with the crime and he has been falsely implicated and there is no prima facie evidence against him to proceed for the charges levelled against him. It was urged that therefore the order of the learned Sessions Judge rejecting the Application Exh. 3 for the discharge of the present petitioner for the offences charged against him is illegal, erroneous and incorrect and requires to be set aside, and the proceedings are required to be quashed. 7. As against that, the learned APP Mr. B.Y. Mankad vehemently urged that it is not necessary that while committing the case to the Court of Sessions, Magistrate shall have to take the cognizance of the offence. In this particular case, firstly, the Magistrate has not taken the cognizance of the offence and committed the case to the Court of Sessions and the Court of Sessions which is empowered to try the accused has not still frame the charge. The Court of Sessions has yet to record the evidence and before that the sanction is obtained on 7th May, 2000. At the most, the proceedings up-till-now is said to be an irregularity under Section 460(e) of the Code of Criminal Procedure where if at all it is held that the Magistrate took the cognizance. It was therefore urged that firstly, the Metropolitan Magistrate did not take the cognizance of the offence as contended on behalf of the petitioner and, secondly, if at all the cognizance has been taken by the Magistrate and has committed the case, then also, the sanction is obtained before the Court of Sessions frames the charge against the accused, and for that the proceedings are not required to be quashed for the want of sanction and on the ground of illegality. During proceedings, even before the framing of the charge by the Sessions Court, when sanction is obtained, the purpose of law according to learned APP is served and it cannot be said that the whole proceedings is an illegality, ab initio and fresh proceedings should be initiated. Learned APP has relied upon certain decisions which will be discussed hereinafter. 8. Having heard learned advocates and having gone through the papers, the second submission of Mr. Dave on facts is required to be resolved first. It is contended that there is no prima facie evidence against the present petitioner to frame the charge, and that what is stated by the present petitioner as an accused by way of defence is required to be taken into consideration by the learned Sessions Judge while dealing with the request of the accused to discharge him. It was contended that the petitioner is not connected at all with the crime as has been attempted by the police to involve the petitioner in the crime. Having perused the necessary papers, it clearly appears that there is evidence to show that one accused named Sanjansingh Gyani Bhagatsingh of Amrutsar and one other accused Ashok Anna of Mumbai and accused Ibrahimkhan alias Chacha Hasankhan Pathan, resident of Rajasthan were assigned the task of kidnapping the then Chief Minister Shri Amarsinh Chaudhary for which some preparation to implement the plan was made and the location of the resident of the then Chief Minister of the State was also watched and observed by these accused. In evidence at the present, it is revealed that one white Santro Car, the number of which at the relevant time was GT-1-BK-5313 was to be used for kidnapping the then Chief Minister of the State of Gujarat. The vehicle appears to have been stolen. The evidence discloses that such map of the roads were also prepared by the accused. There is a prime revelation of the fact through the evidence that the present petitioner was found in possession of such white Santro Car of the above numbered on road by the police on information near Sarangpur Circle at Ahmedabad. So far as the present petitioner is concerned, these circumstances are unexplained which indicates the connection of the present accused with this heinous serious crime. By no stretch of reasoning therefore it could be said that there is no evidence prima facie to proceed with against the present petitioner. The genuineness, trustworthiness and the truthfulness of the evidence is not required to be put to scale at this juncture, but for this evidence, the prosecution must be given a chance to prove what is proposed by it. The accused - present petitioner may plead the defence at relevant stage which he attempts to plead now, but by the means of judicial scrutiny, at present, it could not be established that the defence of the accused that he was arrested near the Swaminarayan Temple, Sarangpur and that fact is trustworthy and what prosecution proposes is not trustworthy. In such circumstances, the law as laid down by the Courts is very clear that at the initial stage, the true veracity and the effect of the evidence which the prosecution proposes to adduce cannot be meticulously judged nor any weight is required to be attached to the defence of the accused. At this stage, it could not be said that a judge should sit with the golden scale and weigh the defence of the accused against the evidence the prosecution proposes to adduce against the accused and come to a reasoned decision. It is also not required that the evidence which prosecution proposes to adduce must be so cogent evidence as to result in conviction. If grave suspicion is raised against the accused, then it can be said that there is a prima facie case to proceed against him. The principle for the scrutiny of the evidence which are applicable for arriving at a final decision is not made applicable at the initial stage and, therefore there are sufficient grounds in the facts and circumstances of this case to proceed against the present petitioner who apparently surfaces to have involved himself in a very serious crime as described by the prosecution. The request of the discharge of the petitioner on this ground must be turned down and the learned Sessions Judge rightly did so. No interference therefore is required in the order impugned on this ground. 9. So far as the next contention is concerned which covers the legal aspect, it will have to be seen that whether the learned Metropolitan Magistrate had taken the cognizance of the offence and, if so, then what is the effect of the same on committal proceedings. Undoubtedly, the required sanction is obtained before the court of Sessions frames the charge against the accused and trial is initiated. Needless it is to say that taking of the cognizance by the Magistrate, it is meant to that the Magistrate has applied his mind to the contents of the case which constitutes the offence. The act of taking the cognizance by the Magistrate has not been defined in Criminal Procedure Code and, therefore, whether the Magistrate has taken the cognizance or not solely depends upon the facts and circumstances of the case. Even then, it is certain that the Magistrate takes the cognizance when he applies his mind to the contents of the case. This is not enough, but the Magistrate for taking the cognizance not only to apply his mind to the contents of the case but he must do so for the purpose of proceeding in particular way as indicated in the subsequent provisions of Chapter i.e. proceeding under Section 200 and thereafter. It therefore necessary follows that when Magistrate even if he applies his mind but not intends to proceed in particular manner as indicated in the subsequent provision towards the trial, then, by no stretch of reasoning, it could be said that the Magistrate is taking the cognizance. The High Court of Kerala in the matter of STATE OF KERALA vs. NEDIYIRUPPA PANCHAYAT, COMPLAINANT, reported in AIR 1969 Kerala 111 after referring to a decision of the Supreme court in the matter of R.R. CHARI vs. STATE OF U.P., reported in AIR 1951 SC 207 observed in para 10 as under: "10. We now come to the question whether the Sub-Divisional Magistrate has power to take cognizance of a Panchayat offence under Section 190(1)(c) of the Code, though he has no power to try it. To a large extent, the answer to this question depends on the meaning of taking cognizance of an offence under the Criminal Procedure code. There are a number of decisions of the Indian High Courts and the Supreme Court on this question. We shall refer only to a few decisions of the Supreme Court. In R.R.Chari v. State of U.P., AIR 1951 SC 207, the question arose whether cognizance of an offence under Section 165 of the Indian Penal Code was taken by the Magistrate, when he issued a warrant for the arrest of the accused on the application of the police, or only when he issued a notice to the accused under Section 190 of the Criminal Procedure Code for his appearance. The Court quoted the following passage from the judgment of Das Gupta, J. Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Abani Kumar Banerjee, AIR 1950 Cal. 437 as stating the correct approach to the question : " What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire 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), Criminal Procedure Code, 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 provision of the Chapter, proceedings under Section 200 and thereafter sending it for an inquiry and report under Section 202. When the Magistrate applies his mind, nor for the purpose of proceeding under the subsequent sections of this Chapter but for taking the action of some other kind e.g. ordering investigation ...... under Section 156(3), or issuing a search warrant for the purpose of investigation, he cannot be said to have taken the cognizance of the offence." Then the Court said :- " In the present case, on 25.3.1949, the Magistrate issued a notice under Section 190 Criminal Procedure Code against the appellant and made it returnable on 2.5.1949. That clearly shows that the Magistrate took the cognizance of the offence only on that day and acted under Section 190, Criminal Procedure Code." In Narayandas Bhagwandas vs. State of West Bengal, AIR 1959 SC 1118 and in Gopaldas vs. State of Assam, AIR 1961 SC 986, the Supreme Court again quoted the above passage from the judgment of Justice Das Gupta as stating the correct law. In the latter case, it adds:- " It would be clear from the observation of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI, 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 investigation, he cannot be said to have taken cognizance of any offence. " 11. This clearly indicates that while committing the case to the Court of Sessions, it cannot be said that the Magistrate is taking a cognizance of an offence. In Para 11, the High Court of Kerala in the above said decision observed clearly as under : " It appears to us on the authority of the statements of law contained in the above decisions, that taking cognizance of an offence can only be for the purpose of initiating legal proceedings under any of the provisions of the Code. If a Magistrate has no power to take any proceedings in respect of an offence brought to his notice, he is not competent to take cognizance of that offence. Taking notice of the commission of an offence and keeping the matter to himself without being able to take any action thereon for want of power, would not amount to taking cognizance. In other words, the power to initiate proceedings, against a person accused of an offence, is a condition precedent for taking cognizance of the offence. A Magistrate, who has no power to try a person charge with an offence or to commit him for trial is not competent to take cognizance of that offence." 12. The above said two decisions on which the heavy reliance is placed by learned Advocate Mr. Dave i.e. decision of the Supreme Court in the matter of STATE OF U.P. vs. LAKSHMI BRAHMAN, as reported in AIR 1985 SC 439 and a decision of this Court in the matter of STATE vs. ALAMZEBKHAN JANGREZKHAN ALI, reported in 1985 (1) GLR 492, cannot be construed to have laid down a law that Magistrate has to take invariably cognizance of an offence while committing the case to the Court of Sessions. The ratio of the above two decisions is, the committal proceedings before the Magistrate is an enquiry as envisaged by the Code of Criminal Procedure and, therefore, Magistrate has power to remand the accused to the custody subject to the provisions of the bail because in both the above said decisions, it has been held that the Court of Sessions takes cognizance only when the case is committed to it and not before that. At the initial stage if any cognizance be taken by any Court, then, the same will be by the Court of Magistrate and not by the Court of Sessions, but however, in these decisions it has been never laid down as contended that the Magistrate has to take the cognizance while committing the case to the Court of Sessions. On the contrary, these two decisions supports the view taken by the High Court of Kerala in the matter of STATE OF KERALA vs. EXECUTIVE OFFICER, NEDIYIRUPPU PANCHAYAT, reported in AIR 1969 Kerala 111. In both the decisions relied upon on behalf of the petitioner, it has been laid down that the committal proceedings is an enquiry before the Magistrate. It is not necessary therefore that during enquiry Magistrate is obliged to take the cognizance of the offence. The glaring example is Section 200 of the Criminal Procedure Code when Magistrate conducts enquiry before issuing process under Section 204 of the Criminal Procedure Code. When the Magistrate resorts to this provision under an enquiry, the established law is the Magistrate is not taking the cognizance unless the Magistrate issues process under Section 204 and, therefore, the committal proceedings before the Magistrate is an enquiry and it is not necessary that while committing the case to the Court of Sessions invariably the Magistrate has to take cognizance. It cannot be laid down that unless Magistrate takes cognizance, he cannot commit the case to the Court of Sessions. In this case it is urged that the cognizance is taken by the Magistrate because he has committed the case to the Court of Sessions and that the Magistrate cannot commit the case to the Court of Sessions