Sonia Gobind Gidwani and another v State of Uttar Pradesh and others
Allahabad High Court
31 May 2013
Application No. 21511 of 2012
The Judgment was delivered by : Naheed Ara Moonis, J.
1. Heard learned counsel for the applicants, Sri S.Shekhar learned counsel for the complainant and AGA and have been taken through the record.
2. By means of the present application u/s. 482 Cr.P.C. the applicants have invoked inherent jurisdiction of this Court with a prayer to quash the entire proceeding in Complaint case no. 392 of 2012 (Asia Exchange Centre Versus Sonia Gobind Gidwani and another) under section 406/420/408/409/477A/120B/34 IPC whereof cognizance has been taken by the learned A.C.J.M.III Gautambudh Nagar vide order dated 5.5.2012.
3. The fact of the case emanating from the prosecution in a short conspectus is that a complaint was filed by the opposite party no.4 holding Power of Attorney on behalf of the opposite party no.3 Ali Omran Salim Alowais who is proprietor of M/s Exchange Centre having its office at 904, 9th Floor ,Twin Tower Building, Abdul Naser Square ,Diera, Dubai U.A.E. The aforesaid firm is a licencee by virtue of licence issued by the Central Bank of U.A.E bearing its Commercial Licence No. 232142 and Registry No. 29076 issued by the Department of Economic Development of Dubai. The complainant is engaged in the business of buying and selling foreign currencies, travellers sheets against foreign currencies, executing transfer transactions of local and foreign currencies etc. in U.A.E. and other parts of the world. Ms. Sonia Gobind Gidwani (applicant no.1) is an Indian national approached the complainant in the year 2001 representing herself as one of the reputed finance and currency trader in India namely Centrum Goup and projected herself as most distinguished and eminent person in Indian Business Circle. It was divulged by the applicant no.1 that Centrum Group was consisting of so many companies including that of Centrum Investment Ltd. Centrum Capital Ltd. Centrum Direct Ltd. and is engaged in diversified financial services including foreign exchange traveller’s sheets, foreign currency, stocks, debentures and various other financial activities. The applicant no.1 impressed the complainant portraying her vast experience & knowledge in the field of market planning ,business development ,marketing project & operation, management in the Money Exchange Industry. The applicant no.1 tried to convince that on account of her vast experience of planning & strategies she would augment and accelerate his business in Dubai and other parts of the word which will yield high return and immense profit. On the persuasion of the applicant no.1, the complainant appointed her as consultant/business development associate at the fixed remuneration. The applicant no.1 assured that she will make her best efforts towards overall growth and will carry out her fiduciary responsibilities with full devotion and dedication. The applicant no.1 won over the confidence of the complainant for putting more working capital so as to flourish business expansion. The complainant was fully assured by the applicant no.1 that in the event of putting more working capital , she will explore profitable business by virtue of extensive contracts, net work and good nexus in the business world.
4. The applicant no.2 being an Indian national was working with the said Centrum Group since long time. It was delineated that the applicant no.2 was a Senior Management Executive having vast experience & knowledge in Money Exchange Industry including framing of policy & accounting procedure, marketing, planning, operations & management. The applicant no.2 represented himself as a core team member of Centrum Group to which the applicant no.1 was associated. In the guise of displaying good description and assurance, the applicants succeeded in instilling congenial atmosphere in the eyes of the complainant. The accused applicants won trust of the complainant with respect of the management and control of the company therefore, the accused applicants were entrusted the properties and assets of the complainant company and were having dominion over the accounts, records, finance of complainant and hence were in the position of trustees as well as shareholders. After some time it was found through audit report that the applicant no.1 in collusion with the applicant no.2 manipulated the accounts and deposited a sum of 11744752 (eleven million seven hundred forty four thousand seven hundred fifty two) Dhirams with complainant company as loan amount for interregnum period 31st March 2005 to 22nd April 2005 and started receiving interest at the rate of 9% per annum in her name. The applicant no.2 was signatory with the bank. A total sum of Rs. 4,98,66,219/- of which there was no agreement with the company. The applicant no.1 has withdrawn four cheques from the account of the corporation amounting to Rs.30,53,63,552/- in the form of interest which was never deposited in the company’s account. The applicants have dishonestly and fraudulently for unlawful gain committed loss to the complainant company and misappropriated company’s property and after playing fraud on the company of the complainant ,they left Dubai in very shrouding way in October/November 2010 without furnishing the accounts. The complainant, who had reposed his faith upon the accused applicants was swindled by their mischievous act as they misplaced the entire record of the company which were in their possession. The applicants have committed breach of trust and swindled huge amount by misusing their power of management and control. In such circumstances complaint was filed by the opposite party no.3 on 10.4.2012 before the Chief Judicial Magistrate u/s. 188 Cr.P.C. To take cognizance of offences committed by the applicants under section 420/406/408/409/497A read with sections 120B & 34 IPC & to issue process . In support of the complaint, the statement of Anees Aravindakshan (opposite party no.4) was recorded u/s. 200 Cr.P.C .
5. In support of the complaint,the licence of the company, power of attorney in favour of the complainant, audit report ,distribution of account , notice and the reply of the notice filed by the applicants were adduced and an application was moved by the complainant on 18.4.2012 that the documents may be taken on record as evidence u/s. 202 Cr.P.C. The learned Chief Judicial Magistrate Gautam Buddha Nagar took cognizance of the matter, following the principles laid down in a catena of decisions of Apex Court, finding that prima facie accused applicants while doing service in the company of the complainant had opened forged accounts, submitted forged deposit receipts and surreptitiously received the interest at the rate of 9% on the amount and also usurped hefty amount by playing fraud and committing forgery. The accused applicants came back in India surrendering their services hence offence under section 420/406/408/409/477/120B/34IPC is prima facie made out against the applicants, the learned Magistrate summoned the accused persons to face the trial in respect of the aforesaid offences vide order dated 5.5.2012.
6. Learned counsel for the applicants raised serious objection that the cognizance taken by the Magistrate is palpably without jurisdiction on the ground that by virtue of proviso of s. 188 Cr.P.C. no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. The complaint shows that no part of the alleged offence has taken place within the territory of India . As per allegations made in the complaint, entire offence was committed in Dubai . S. 188 Cr.P.C. clearly provides procedure in respect of an offence committed outside India . In view of proviso to s. 188 Cr.P.C. complaint cannot be entertained without sanction of the Central Government for the initiation of the proceedings. S. 188 Cr.P.C. runs as under ; Offence committed outside India-When an offence is committed outside India ;
(a) by a citizen of India whether on the high seas or elsewhere or
(b) by a person not being such citizen, on any ship or aircraft registered in India. he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found;
7. Provided that notwithstanding anything in any of the proceeding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
8. The complainant has filed the complaint suppressing material fact to deprive the applicants to lodge their dues which were agreed between them under the memorandum of understanding. The entire allegations made against the applicant no.2 that he conspired with the applicant no.1 who had approved the payment vouchers @ 9% per annum absolutely false as the interest calculation on the loan was approved & signed by the sole proprietor of the complainant himself. In respect of the alleged cheques, the complainant had already filed a criminal complaint against the authorized signatory of the said cheques in Dubai. After investigation charges were dropped by the prosecution. Neither applicants had deposited any cheque as security for repayment of loan or in cash therefore, prima facie no offence is made out against the applicants involving in the aforesaid case. The complainant had lodged civil and criminal proceedings against the applicant no.1 which is pending before the competent court in Dubai. The Complaint Case No. 12075 of 2011 filed against the applicant no.1 was found baseless . The proceedings were dropped and on the same set of facts after loosing criminal case at Dubai filed the complaint in India. Merely on the documentary evidence and the statement of the complainant u/s. 200 Cr.P.C. the court below has proceeded against the applicants even otherwise complainant had taken no permission from the court concern for filing the complaint by the holder of power of attorney therefore, the proceedings initiated thereon is absolutely baseless and illegal. The complainant after loosing the criminal case against the applicant no.1 filed a civil case no.1821 of 2011 on the same set of facts on 27.10.2010 and the said case is still pending. The complainant has given colour of a criminal proceeding to the dispute of civil nature . The applicants are maliciously being prosecuted in the present case on account of false allegations made against them, hence the entire proceeding is an abuse of process of law..
9. Learned counsel for the applicants has referred to plethora of decisions of Apex Court which are being delineated :-
1. Om Hemrajani Vs. State of U.P. & another (2005) 1 S.C.C. 617 2004 Indlaw SC 1015
2. Tula Ram & others Vs. Kishore Singh 1977 S.C.C. (Cri) 621 1977 Indlaw SC 397
3. Mohd. Yousuf Vs. Afaq Jahan (Smt.) and another (2006) 1 S.C.C (Cri) 460 2006 Indlaw SC 1360.
4. Kunhayammed & others Vs. State of Kerala & another (2000) 6, S.C.C.359 2000 Indlaw SC 804
5. Thota Venkateswarlu Vs. State of Andhra Pradesh through Principal Secretary & another (2011) 3, S.C.C. (Cri) 772 2011 Indlaw SC 548.
6. Ajay Aggarwal Vs. Union of India (1993,3 SCC 609 1993 Indlaw SC 1142,
10. It is further contended that in National Bank of Oman Vs. Barakara Abdul Aziz & another (2013(80) ACC 663 2012 Indlaw SCO 1777, the Apex Court held that the learned Magistrate had not carried out any investigation as contemplated under amended s. 202 Cr.P.C. before issuing process hence the learned Magistrate was directed to pass fresh orders after complying with the procedure laid down in s. 202 Cr.P.C.S. 202 Cr.P.C. was amended by Criminal Procedure Code Amendment Act 2005 and came into force w.e.f. 23.6.2006 and the following words were inserted :
and shall in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction:
11. In the present case also the applicants are resident of State of Maharastra and the cognizance has been taken by the Chief Judicial Magistrate-III Gautambudh Nagar . The learned Magistrate ought to have carried out inquiry or investigation as contemplated under amended s. 202 Cr.P.C before issuing the process so as to find out whether or not there was sufficient ground for proceeding against the applicants who are resident of different State and do not come within the jurisdiction of Gautambudh Nagar . Thus the entire proceeding against the applicants is vitiated in law due to non-compliance of mandatory requirement of procedure laid down u/s. 188 viz-a-viz 202 of the Code of Criminal Procedure.
12. Per contra learned for the complainant has vehemently argued that the complainant was constrained to file a complaint in India against the applicants on account of misuse of trust reposed upon them as the applicants have illegally usurped the assets of the opposite party no.2 by causing wrongful loss to him. The applicant no.1 had persuaded the complainant for being appointed as consultant in the trade of buying and selling the foreign currencies in U.A.E. The audit report itself reveals that the applicant no.1 being hands in gloves with the applicant no.2 had shown the deposit of Rs. 15,26,81,776/- with the company of the opposite party no.2 as a loan against which the applicant no.1 received interest at the rate of 9% per annum in her name but the audit report shows that no amount was ever deposited by the applicants in the account of the complainant. There was no documentary proof of the alleged loan given by the applicant no.1 to the complainant. The applicants no.1 & 2 in connivance with each other withdrew the amount of interest for the alleged loan amount which was never deposited, thus they cheated the complainant’s company and misappropriated hefty amount . The Power of Attorney holder, opposite party no.4 is having valid power of attorney and as such he is competent to file complaint even otherwise no permission is required for any person to set criminal law in motion. So far as the objection with regard to taking cognizance u/s. 188 Cr.P.C. is concerned , at the stage of taking cognizance . S. 188 Cr.P.C. provides that an Indian citizen who commits an offence at any place outside India or on the high seas may be dealt with in respect of such offence as if it has been committed in India . Where offence is committed outside India, sanction of the Central government at pre- enquiry stage is not required .Where offence is committed outside India, case can be registered/investigated in India . It is not necessary that the sanction of the Central Government may be obtained before taking cognizance. There are a gamut of decisions to this effect specially Om Hemarajan 2004 Indlaw SC 1015 (Supra) is identical with the facts of the case wherein it has been held that sanction u/s. 188 Cr.P.C. is not a condition precedent to take cognizance of the offence which was committed outside the territory of India . The objection of the applicant against filing of the complaint is subject matter of trial. S. 188 Cr.P.C. does not require that the victim shall state in the complaint as to which place the accused may be found. The gravity of the offence can only be judged by the trial court after evaluating the evidence. The act of the applicants constitutes an offence under the law in force in India therefore, the applicants can very well be prosecuted in India. Even if the applicants have been tried by the court at Dubai ,the Court in India cannot be precluded from prosecuting the applicants within the territory in India. The cognizance has been taken long back and the applicants are not appearing before the court below ,therefore, non-bailable warrants have been issued against them. The applicants are free to raise objection at the appropriate stage. Para 6 of the judgment enunciated in the case of National Bank of Oman 2012 Indlaw SCO 1777 (Supra) is relevant which is delineated as under :-
“The duty of a Magistrate receiving a complaint is set out in s. 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a Criminal Court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation u/s. 202 of the Cr.P.C. is different from the investigation contemplated in s. 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry u/s. 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint (i) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. “
13. Learned counsel for the complainant strenuously argued that a criminal complaint cannot be quashed for simple plea that the transaction involved is commercial or civil in nature. Prima facie it cannot be said that the commission of offence is not made out of from misappropriation of property which was entrusted by the complainant with intent to defraud and to cause damage , betraying trust showing their dishonest intention from beginning. This is all question of fact to be determined in the light of offences, they have been charged. At the inception of criminal prosecution , this court has to be circumspect in evaluating the pros & cons of the case.
14. To prop up his submission learned counsel for the complainant has referred to a gamut of decisions delineated here under :-
1. Ajay Agarwal Vs. Union of India & others 1993, S.C.C.609 para 27 1993 Indlaw SC 1142.
2. Om Hemrajani Vs. State of U.P. & others 2004 (48) A.C.C.151 2004 Indlaw SC 1015 para 9
3. Thota Venkatesh Warlu Vs. State of A.P. (2011) 9, S.C.C.527 2011 Indlaw SC 548 , para 14 & 16
4. Vishwa Mitter of M/s Vijay Bharat Cigarette Stores,Dalhousie Road Pathankot Vs. Poddar & others (1983) 4 S.C.C.701 1983 Indlaw SC 150
5. Subramanian Swamy Vs. Manmohan Singh & another (2012) 3, S.C.C. 64 2012 Indlaw SC 509
6. Mohinder Singh Vs. Gulwant Singh & others (1992) 2, S.C.C.213 1991 Indlaw SC 425,
7. Chief Enforcement Officer Vs. Videocon International Ltd.& others (2008) 2, S.C.C.492 2008 Indlaw SC 111
8. Shivjee Singh Vs. Nagendra Tiwary & others (2010) 7. S.C.C.578. 2010 Indlaw SC 488
9. Narayandas Bhagwandas Vs. State of West Bengal AIR 1959 S.C.1118 (V 46 C 150 1959 Indlaw SC 1)
10. Kishun Singh & others Vs. State of Bihar (1993) 2 S.C.C.16 1993 Indlaw SC 197
11. Rosy & another Vs. State of Kerala & others 2000 (2) S.C.C.230 2000 Indlaw SC 557.
12. Abdul Salam Vs. State of Kerala 2003 (1) Crimes 471 2002 Indlaw KER 454.
15. In view of above facts & legal position, this petition sans any merits hence deserves to be dismissed.
16. I have considered the aforesaid submission of the learned counsel at the bar.
17. So far as the jurisdiction of Courts in India to entertain the complaint against a person who has committed an offence in another country is concerned, the identical issue was decided by this Court in Om Hemarajani Vs. State of U.P. & another 2004 Indlaw SC 1015 (Supra) which has been upheld by the Apex Court in SLP No. 99 of 2004 and has dealt with in extenso keeping in view of the proviso u/s. 188 Cr.P.C. requiring prior sanction of the central government. The word ‘inquiry’ used in proviso to s. 188 Cr.P.C. is confined to proceedings before the Magistrate prior to trial alone but cannot be extended to investigation by the police. A police officer investigates a case by himself or under the order of the Magistrate u/s. 202 Cr.P.C. In view of the same the bar if any, will operate to inquiry before the Magistrate after the police laid the charge sheet for the offence. The requirement of sanction is necessary at the stage of trial and is not a precondition to taking cognizance. Similar view has been laid down by the Apex Court in Ajai Agarwal Vs. Union of India 2005(1993) (3) SCC 609 1993 Indlaw SC 1142, and Thota Narain Vs. State of A.P. (2011) (9) S.C.C.527 2011 Indlaw SC 548,. The aforesaid decisions clearly cull out that sanction u/s. 188 Cr. P. C is only necessary before the commencement of trial and it is not a condition precedent for taking cognizance for issuing of process. The applicants cannot derive any benefit as there are sufficient materials showing complicity of the applicants in the commission of said offences.
18. So far the objection raised with regard to the maintainability of the complaint by the holder of Power of Attorney on behalf of the respondent no.2, there is no restriction prescribed by the code regarding the requirement of maintainability of complaint as anyone can set the criminal law into motion . The respondent no.4 was duly authorised to file a complaint against the applicants. In the recent decision in re Subramaniam Swamy Vs. Manmohan Singh 2012 (3) S.C.C. 64 2012 Indlaw SC 509, the Hon’ble Apex Court has diluted the decision rendered in the case of A.R.Antulay vs. R. S.Nayak 1984, S.C.C.(Cri) 277 1984 Indlaw SC 337. In para 6 of the aforesaid decision of the Constitution Bench, it has been observed that ;
“It is a well recognized principle of criminal jurisprudence that any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save & except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision”.
19. Similarly the non-examination of witnesses when the case has been filed u/s. 200 Cr.P.C. will not vitiate the entire proceedings. Learned Magistrate on the basis of material on record filed along with complaint may take cognizance therefore, in the case in hand, learned court below has committed no illegality or absurdity in issuing the process against the applicants. Consequence of non-examination of the witnesses would be considered at the stage of trial and not at the stage of issuing the process. Learned Magistrate considered the statement of the complainant in support of the complaint and after sifting the material found that prima facie offence is made out against the applicants . At that stage, detailed discussions on merit is not required to record finding that the allegations would end in conviction of the accused persons.
20. The Apex court in the National Bank of Oman Vs. Barakara Abdul Aziz & another2012 Indlaw SCO 1777 (Supra) has no doubt referred to s. 202 of the Code of Criminal Procedure qua amendment made by Act of 2005 which refers to “and shall, in a case where the accused is residing at a place beyond the area in which he excesses jurisdiction;” to make it obligatory upon the Magistrate before summoning the accused residing beyond his jurisdiction, to enquire into the case himself or to direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out as to whether offence is made out against the accused. At the same time it is relevant to quote para 6 of National Bank of Oman 2012 Indlaw SCO 1777 (Supra) which is portrayed herein under :-
“The duty of a Magistrate after receiving a complaint is set out in s. 202 Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. The scope of enquiry u/s. 202 Cr.P.C. is limited to the ascertainment of truth or falsehood of the allegations made in the complaint (i) on the material placed by the complainant before the court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have “
Thus it is quite evident that the learned Magistrate in the case in hand has primarily satisfied with the allegations made in the complaint for issuing the process on the basis of the allegations made in the complaint. At this stage, role of the applicants cannot be weighed . Quintessentially when cognizance is taken of an offence, it depends upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking “cognizance”.
21. In order to know the definition of “Cognizance” I have gone through the different dictionaries which defines the term “as under :-
“In Black’s Law Dictionary the word “cognizance has been defined as under :-
“Cognizance/ ko(g) nezens/ Jurisdiction or the exercise of jurisdiction or power to try and determine causes ; judicial examination of a matter, or power and authority to make it. Judicial notice or knowledge; the judicial hearing of a cause; acknowledgement; confession; recognition.
In Oxford Dictionary the word “cognizance/ ko (g)niz (e)ns/ (also cognisance)* n.1. Formal knowledge or awareness- Law the action of taking judicial notice . 2. Heraldry a distinctive device or mark, especially as formerly worn by retainers of a noble house . PHRAZES take cognizance of formal attend to; take account of .”
22. In the New Lexicon Webster’s Dictionary of the English Language the word “cognizance” has been defined as under :-
“cog-ni-zance (kgnizens, konizens) n. the range of mental observation or awareness/ the fact of being aware, knowledge/ (law) the power given to a Court to deal with a given matter, jurisdiction/ (heraldry) a distinguishing device beyond one’s cognizance not one’s concern,outside one’s terms of reference to have cognizance of to take into one’s reckoning cognizant adj,cognize (kbgnaiz) pres. Part. Co gniz.ing past and past part, cog.nized v.t. To make (something) an objection of cognition (O.F.connoissance, knowledge)” .
23. The Hon’ble Apex Court has elaborately dealt with the expression “taking cognizance” in re Chief Enforcement Officer Vs. Videocon International Ltd. & others (2008) (2) S.C.C. 492 2008 Indlaw SC 111In para 19, and 20 the Hon’ble Apex Court deals with the expression cognizance which are being quoted here-in-under :-
Para 19 : The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of’ and when used with reference to a Court or a judge, it connotes ” to take notice of judicially”. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by anyone.
24. Para 20. “Taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.
25. In view of the legal position, it is crystal clear that cognizance of an offence is taken depending on the facts and circumstances of the case and it is not possible at this stage to record any finding that no offence is made out against the accused persons . The summons or warrants are issued for the purpose of bringing the accused persons before the Magistrate concern. S. 3 of I.P.C. lays down with respect of punishment of offences committed beyond, but which by law may be tried within India .S. 3 I.P.C clearly contemplates that any person liable , by any Indian Law to be tried for an offence committed beyond India ‘ shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.
26. S. 4 of I.P.C. deals with extension of Code to extra territorial offences which reads thus ;
“The provision of this Code apply also to any offence committed by i. any citizen of India in any place without and beyond India.
ii. any person on any ship or aircraft registered in India wherever it may be ;
iii. any person in any place without and beyond India committing offence targeting a computer resource located in India.”
Explanation : In this section
(a) the word ‘ offence’ includes every act committed outside India which ,if committed in India would be punishable under this Code.
(b) the expression “computer resource” shall have the meaning assigned to it in cl. (k) of sub-s. (1) of s. 2 of the Information Technology Act 2000).
27. This issue has further been dealt with in Abdul Salam Vs. State of Kerala 2003 (1) Crime 471 2002 Indlaw KER 454 holding that a person who has been prosecuted and punished in a foreign country for an offence under the law in force in that country, is prosecuted in India for the commission of an offence,he is being prosecuted under the law in force in India. The prosecution in India is not for the act which was made an offence under the law in force in foreign country, but for the act which is an offence as per the law in India .Identity of the offence is requisite for the application of Art. 20 (2) of the Constitution of India. The previous prosecution and conviction or acquittal does not bar a subsequent prosecution and trial for a separate and distinct offence even though the two offences arise out of the same fact.
28. Thus I am of the view that once the Magistrate takes cognizance of an offence either without discussing what are the reasons behind it, it shall be presumed that on the basis of material available before him he is satisfied that there is sufficient material for taking cognizance and if he is satisfied with those materials for taking cognizance, the detail discussion of those materials by the learned Magistrate is not required.
Further once he issues process, even without writing word ‘cognizance’ it is presumed that he has taken cognizance, the writing of word “cognizance is taken’ is not necessary. The reason is that by issuance of process he proceeds with the case and the accused who has been summoned for trial have sufficient opportunity to defend himself at the appropriate stage provided in the code. In response of issuance of process/summons it is not open for the accused to challenge the summoning order on the ground that no cognizance has been taken or no satisfaction has been shown or there is no detail discussion of the material available rather he has to follow the next step of the process.
29. From the perusal of the materials on record and looking into the facts and after considering the extensive arguments of the learned at the bar, it cannot be said that no offence has been made out against the applicants. Cognizance taken by the trial court, whereby the applicants have been summoned to face the trial suffers from no illegality and as such the prayer for quashing the proceedings is refused.
30. At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record. Only this has to be seen whether prima facie cognizable offence is made out or not. The Apex Court has also laid down the guidelines in the case State of Harya na Vs. Bhajanlal, 1999 SCC(Crl) 426 1990 Indlaw SC 91, and State of Bihar Vs. P. P. Sharma, 1992 SCC(Crl) 192 1991 Indlaw SC 1053.where the criminal proceedings could be interfered and quashed in exercise of its power envisaged u/s. 482 Cr.P.C.
31. It is apt to quote from Jonathan Swift’s “an essay on the Faculties of the Mind:’
“The laws are cobwebs which may catch small flies but let wasps and hornets break through.” Salman has described “Laws are like spiders webs; If some light or powerless things falls into them, it is caught ,but a bigger one can break through and get away”.
32. In the light of prolix discussion, this Court does not find any justifiable ground to exercise its inherent powers to quash the proceedings of aforesaid case. This application is bereft of merits and is accordingly dismissed.
33. However, considering the facts and the circumstances of the case , it is directed that in case applicants appear before the court concerned in the aforesaid case within 30 days from today and apply for bail, the same shall be heard and disposed of in view of decision rendered in the case Smt. Amrawati and another Vs. State of U.P. reported in 2005 Cr.L.J. 755 2004 Indlaw ALL 424 which was approved by the Hon’ble Apex Court in Lal Kamlendra Pratap Singh Versus State of U.P. (2009) 4 SCC 437 2009 Indlaw SC 446 No coercive steps shall be taken against the applicants within the stipulated period of 30 days.
34. In case the applicants do not appear before the court below within stipulated time the court below shall be at liberty to take appropriate action against the applicants in accordance with law.
Application dismissed
