Judgment:
Nripendra Kumar Bhattacharyya, J.
1. By this revision the accused petitioners have challenged the proceeding in connection with G.R. Case No. 2973 of 1988 and particularly regarding the order by which the cognizance was taken by the learned Chief Metropolitan Magistrate, Calcutta, being order No. 14 dated 11.1.93 in that proceeding.
2. The short background of the case is that the opposite party No. 1 herein, who is the appropriate officer, made a complaint before the court of the learned Chief Metropolitan Magistrate, Calcutta, and the complaint was forwarded to the police for treating the same as an F.I.R. and to investigate the matter. After completion of the investigation a final report was submitted. Being aggrieved by that final report, the opposite party No. 1 herein, the defacto-complainant, filed a protest petition and there-after the learned Magistrate directed further investigation by the D.D. Depaltment. The matter was further investigated and thereafter the chargesheet was submitted before the court of the learned Magistrate on 9th January, 1993 but no accompanying document was placed before the learned Magistrate on the ground that; those cannot be produced at that stage because copies are prepared thereform for supply as contemplated under Section 173(5) of the Code of Criminal Procdure (hereinafter referred to as the Code). The same will be apparent from order No. 13 dated 9.1.93. In view of the submission of the prosecution the next date was fixed by the learned Magistrate on 11.1.93 for orders. By order No. 14 dated 11.1.93 the learned Magistrate observed that the chargesheet rather the challan was submitted by the Investing Officer for an offence against the accused under Sections 120B/406/420 of the Indian Penal Code on which the learned Magistrate took cognizence of the offence' and transferred the case for disposal to the court of the learned Metropolitan Magistrate, 6th court, Calcutta, under Section 192 of the Code.
3. Mr. Dilip Kumar Dutt, learned senior advocate appearing with the learned Advocate, Miss Kabita Mukherjee, for the petitioners, contended that taking cognizance on the chargesheet alone in the absence of other documents as contemplated under Section 173(5) of the Code is bad in law and cannot be sustained. In support of his submission Mr. Dutt relied on three decisions, to wit, Satya Narayan Musadi v. State of Bihar reported in 1990 Cr LJ 227, Satya Ranjan Pal v. State of West Bengal reported in 96 CWN 604 and Madchunichina Venkata Reddy v. State of Andhra Pradesh reported in 1994 Cr LJ 257. In Satya Narayan's (supra) case the Supreme Court has held that taking cognizance only on the basis of chargesheet in the absence of other documents as contemplated under subjection (5) of Section 173 of the Code is bad in law. The same view has been expressed by this Court in Satya Ranjan Pal's case (supra) and also by the Andhra Pradesh High Court in Madchunichina Venkata Reddy's case (supra). On the basis of the authorities of the said decisions Mr. Dutt submitted that the order of taking cognizance by the learned Magistrate by order No. 14 dated 11.1.93 should be set aside.
4. Appearing for the opposite party No. 1, Hindustan Fertilizer Corporation Ltd., Mr. Shibaji Sen, learned Advocate appearing with the learned Advocates Mr. Basanta Kumar Sen and Mr. Amal Kumar Ghosh, on the other hand, contended that second proviso to Section 207 of the Code will apply in this case and as the documents are voluminous the same cannot be supplied to the accused persons but the accused persons may take inspection of the same.
5. On behalf of the State, Mr. Sk. Kasem Ali Ahmed, learned Advocate, contended that the order No. 14 dated 11.1.93 is not sustainable in law but appropriate direction should be given upon the court below so that an appropriate order according to law can be passed.
6. Having heard the learned Advocates for the parties and considering the materials on record, I find that the stage as contemplated under Section 207 of the Code has not yet arrived inasmuch as by order No. 13 dated 9.1.93 the learned Magistrate observed that upon the submission of the prosecution the case diary could not be supplied, containing all the documents, as contemplated under Section 175(5) of the Code as because copies are to be made therefrom for supply to the accused persons. So the question of inspection on the ground that the documents are voluminous does not arise in this case.
7. Be that as it may, it is the consistent view of the courts and settled law of the land unless all the documents are placed before the learned Magistrate contempleted under Sub-section (5) of Section 173 of the Code, the learned Magistrate is not justified in taking cognizance only on the basis of the chargesheet alone. That being the position in law, in my view, the order No. 14 dated 11.1.93 whereby the learned Magistrate took cognizance of the offence against the accused petitioners under Sections 120B/ 406/420 of the Indian Penal Code cannot be sustained and the same is hereby set aside.
8. The revisional application in accordingly allowed.
9. However, the learned Magistrate is directed to consider the matter of taking cognizance after the documents, as contemplated under sub-section (5) of Section 173 of the Code are placed before him by the prosecution and if he so satisfied from the documents he shall act according to law. He shall consider the matter within a fortnight from the date of receipt of this order.
10. The prosecution is also directed to submit all those documents and/or papers, as contemplated under Section 173(5) of the Code within that time before the learned Magistrate so that he can consider the matter within a fortnight.
11. Let a copy of this order be sent down forthwith to the learned Magistrate concerned by a special messenger at the cost of the oppsite party No. 1. Such cost be put in by Monday next (8.5.95).