24 May 2009
Please clarify the procedure for taking cognizance of the 0ffence by the competent Magistrate in the following circumstances:
1. Summon received from the court.
2. Appeared before the Magistrate obliging the summon on a particular date.
3. Posted on some other day.
4. Appeared. charge sheet was given.
5. Posted for some other day.
6. Appeared, posted for some other day again, without even putting the primary question of "Are you guilty or not".
N.B: The reason for postponing the case further and further till date, is orally that the special powers to conduct the case (PersonalDesignata is yet to be received.
In the above circumstances, Please, clarify whether we have to presume tnat the cognizance of the offence is said to be taken, even before conducting the preliminary examination by putting the first and foremost question of asking "Are you guilty or not".
24 May 2009
taking cognizance of an offence by a judicial magistrate is a judicial act. in your case when the charge-sheet is submitted the magistrate takes cognizance. so, you have to presume that the cognizance of the offence is said to have been taken even before conducting the said preliminary examination.
25 May 2009
There two views. As Tapan said while taking the chrge of the police i.e., the final report u/s 173 Cr.P.C the Magistrate is taking cognizance. But to be more correct while the Magistrate is appying his mind on the charge he is taking cognizance. When he is appying the mind whether at the time of filing or framing court charge. It is more correct to say while framing charge.
What is the purpose of enacting section 19 of the Prevention of Corruption Act, 1988?
In my opinion, in the absence of a valid sanction for prosecution which the magistrate has filed to apply his mind in this case before taking cognizance of offence at the time of filing the final report under section 173 of Cr.PC.,is bad in law and ab-initio void, and this is a fit case to be discharged at the time of preliminary examination itself, before framing charge by the judge, for the following reasons also.
The purpose of section 19 of the Prevention of Corruption Act, 1988, is defeated for 1)the necessity of the sanction for prosecution against a Govt. servant/retired for the offences committed in connection with the official duty, while doing service, is to avoild vindictive and vexatious prosecution for taking revenge against a honest govt. servant after retirement and this is a pre-requisite for taking valid congnizance of the offence against the accused.
In my opinion, this sanction could be issued by the competent authority, only on submission of the entire investigation reports to the competent authority for judicial application of mind, whether,it is a fit case for prosecution.
But, in this case, sanction was obtained in the midway of the investigation, by giving the impression to the competent authority, as if the investigation is completely over.
The real fact of subsequent investigation conducted by the police and obtained 161 statements from two more witnesses have not been brought to the notice of the Competent authority till date, but to be frank, only these two witnesses has revealed the truth which would be favorable to the accused to prove the innocence.(PW-3&4)
The statement of these two witnesses also have been submitted to the court as prosecution witness,(PW 3 & 4), but their entire statement are in favour of the accused, contradicting the statement of PW-1.
If the statement of these two witnesses were placed before the competent authority, it is 100% sure that the competent authority could have refused sanction for prosecution, based on the advice of the Law Department, itself.
Hence, it is a clear case of malicious and vexatious prosecution by the police, since, they have suppressed the statements of the vital witnesses (PW-3 & 4) to the competent authority with ulterior motive for not satisfying their desire.
Please, give your opinion now based on the following factual information, provided you know the correction legal implication of section 19 of the Prevention of Corruption Act, 1988.
25 May 2009
Regaring Thaheer view of setion 19 of the PCA,Cognizance may be taken on differenet angle. For example, if a Government doctor in a Government hospital pick pocket his patients while examining him, does the offence also required sanction for prosecution. These are some of the relavant matters while considering sanction for prosecution.
I have already clarified you that this case of misappropriation is connected with official duties (for which sanction for prosecution is a pre-requisite under the Prevention of Corruption Act, 1988) and not as in the case of pick-packeting of a patient by a doctor for which only IPC will attract which does not require any sanction for prosecution.
26 May 2009
Mr.Taheer, we are not told what is the allegation. however, if sanction is required certainly the cognizance is bad if prior sanction is not accorded before cognizance is taken and sanction will also have to be given only after submission of charge sheet and due application of mind by sanctioning authority.
27 May 2009
The allegation is alleged misappropriation of an amount of Rs.11,255/- while in service, attracting section 13 (1) (c) of the the Prevention of Corruption Act, 1988 read with section 34 of the IPC
The period of allegation was between 30-03-2001 and 12-04-2001.
The FIR filed on 28-09-2004, just 48 hours before retirement on superannuation.
Sanction obtained on 18-07-2007. i.e. Prior to the completion of investigation.
Investigation completed on 07-05-2008
Charge sheet filed in the court on 26-06-2008, by incorporating the INVALID SANCTION obtained prior to the completion of investigation, i.e.07-05-2008.
The final report was not submitted to the competent authority for getting the prior sanction for prosecution for application of mind as required under section 19 of the Prevention of Corruption Act, 1988, which is a pre-requisite to be verified by the competent before taking cognizance of the offence, which is not done in this case.
Please give your comment based on the above explanation of the case, citing case laws of supreme court in favour of the accused.
cognizance taken on 27-07-2008.
No power delegated to the judge in his personal designata as required under the P.C.Act, 1988.till 15th January, 2009.