JUDGMENT
A. Talukdar, J.
1. The petitioner has come up before this court seeking to quash the proceeding of G.R. Case No. 2836 of 1995 (arising out of R.C. case No. 8/S.C.B./93/Calcutta) pending before the learned Metropolitan Magistrate. 12th court, Calcutta on the ground firstly that there has been Infraction of section 173(5) of the Code of Criminal Procedure and further that the learned Chief Metropolitan Magistrate, Calcutta did not have the Jurisdiction to take cognizance In the matter as the learned 12lh Metropolitan Magistrate was only the designated court for trying the CBI cases according to notification No. 18167J dated 30.7.91 issued by the Judicial Department of the Government of West Bengal. The learned lawyer appearing on behalf of the petitioner has invited my attention to the order dated 14-11-95 passed by the learned Chief Metropolitan Magistrate, Calcutta taking cognizance of the case and transferring the same for disposal to the file of the learned Metropolitan Magistrate, 12th court, Calcutta for disposal. He has pointed out that the learned Chief Metropolitan Magistrate simply perused the charge sheet and took cognizance but did not advert to the accompaniments of the charge sheet which was an Infraction of sub-section (5) of section 173(5) of the Code of Criminal Procedure. In support of his contention he has relied on several decisions of this court. Firstly, he has placed reliance on 1996 Criminal Law Journal 1406 Kalpana Ghosh v. State & Others. Then he relied on 1995 CCLR., Calcutta 289 Raghubir Smaran Jain & Another v. The State. Then he also cited the decision of the Supreme Court in the case of Satya Narayan Musadi v. The State of Bihar, and lastly on the decision of this court as reported in 1996(11) CHN page 362 (R. J. Brcalcy v. State of West Bengal) and 1996(II) CHN 147 Pradip Kumar Patra v. State of West Bengal and 96 CWN 606 Satya Ranjan Pal v. State of West Bengal
2. The second branch of the submission of the learned lawyer of the petitioner Is that the cognizance taken by the learned Chief Metropolitan Magistrate Is also bad in law on this score that In view of the notification No. 18167J dated 30th July. 1991 Issued by the Judicial Department of the Government of West Bengal It is only the learned 12th court of the learned Metropolitan Magistrate Is empowered to deal with the cases under the DSPE Act as such the Chief Metropolitan Magistrate was not at all competent to take cognizance and It was only the learned 12th Metropolitan Magistrate which was the proper court where the charge sheet lays at the behest of the Investigating Agency conducted under the DSPE Act (the CB1 Act).
3. Shri Shovan Lal Hazra, the learned public prosecutor of the Central Bureau of Investigation duly assisted by Shri Avijeet Audhya. learned Advocate has very strongly resisted the submissions of the learned lawyer of the petitioner and have submitted that both the grounds taken by the petitioner do not merit any consideration at all since they have no basis to stand upon. Shrl Hazra has also placed reliance on the decision of the Supreme Court In the case reported In 1995 Calcutta Criminal Law Reporter (Supreme Court page 52) In the case of State of West Bengal v. Md. Khalid & others. Shrl Hazra. learned public Prosecutor has buttressed his submlssloln on the basis of Paragraphs 44 and 45 of the said judgment of the Supreme Court (supra) and have argued that cognizance once taken by the learned Magistrate cannot be found to be defective and a proceeding cannot be quashed on the ground of any defect If at all In taking of such cognizance. Shrl Hazra has also referred to the case of Inspector of Police CBI v. Manique Mazumdar reported In 1997 Cal. Crl.LR (Cal.) 128 where Tiwari. J. had negated the point taken by the accused with regard to section 173(5) of the Code. Incidentally the learned counsel of the petitioner also appeared In that matter. Fairness demanded that he ought to have referred to the said decision.
4. I have heard the submissions of the learned lawyer appearing on behalf of the petitioner and as well as that of the learned public prosecutor of the Central Bureau of Investigation and have perused the decisions cited by the parties. I find that the first point with regard to Infraction of section 173(5) of the Code of Criminal Procedure as canvassed by the learned lawyer of the petitioner does not call for any Interference at all, In a recent decision of this court as reported In 1998(II) CHN page 27 in the case of R.V. Venkateshmaran v. The State & Another, Dibyendu Bhusan Dutta, J. had dealt with all the cases cited by the learned lawyer of the petitioner Including also some other cases and held that:
“S.N. Musadt’s case does not appear to have at all been referred to or considered In 1996(II) CHN 147 and 1996(II) CHN 362. Reference to Musadi’s case was, no doubt, made In 96 CWN 606 and 1995(4) Crimes 418. Watson’s law Lexicon 14th Edition at page 754 defines the term ‘per incurlam’ In the following words “through want of care” and *an order of the court obviously made through some mistake or under some misapprehension Is said to be made per Incurlam”- In ; Murari Kumar Saraf v. Jagannath Shaw, two Supreme Court decisions identifying the Judgments which are per Incurlam were referred
to wherefrom it would appear that where by obvious Inadvertence or oversign a Judgment falls to notice a plain statutory authority running counter to the reasoning and the result reached, It may not have the sway of binding precedents. In , it held that per incurlam are those decisions given In Ignorance or forgetfulness of some authority binding on the court concerned so that In such cases some part of the decisions or some step In the reasoning on which It Is based is found on that account to be demonstrably wrong. Going by the term ‘per incurlam’ as given In Watson’s Law Lexicon as referred to above and the decisions , I can unhesitatingly hold that the four single Bench decisions of this court relied upon on behalf of the petitioners and referred to above, are decisions per Incurlam and as such, are of no avail to the petitioners”. His Lordship further held that in view of the decision of Musadt’s case (supra) as reported In 1980 Criminal Law Journal page 227, the judgment In the cases of Pradfp Patra, R.G. Brcaley, Satya Narayan Pal & Another case on similar point were held to be per Incurlam. It Is the contention of the learned lawyer that unless the entire police papers and all other documents are perused by the learned Magistrate at the time of taking cognizance on the basis of the charge sheet, the entire cognizance stands vitiated and such cognizance Is non est In the eye of law.
5. I respectfully agree with Dutta. J. and hold that not only the judgments cited by the petitioner were per Incurlam and they are not good law as long ago far back as In 1951 the Supreme Court in the case of R.R. Chari v. The State of Uttar Pradesh as held that:
“Taking of cognizance does not Involve any formal action or Indeed action of any kind but occurs as soon as Magistrate as such applies his mind to the suspected commission of an offence”. The Supreme Court held in the latter decision of Narayan Das, Bhagavan Das Modhab Das v. State of West Bengal as that: “As to when cognizance is, taken of an offence will depend upon the facts and circumstances of each case and it Is Impossible to attempt to defind what Is meant by taking cognizance”.
6. I am tempted to refer to the decision of the Supreme Court In the case of Ajit Kumar Palit v. The State of West Bengal & Another as where a three-Judge Bench of the apex court dealt with the point of cognizance. Speaking for the three-Judge Bench of S.J. Iman, N. Rajagopala Ayyangar and J.R. Mudholkar, J.J. His Lordship the Hon’ble Mr. Justice, N. Rajagopala Ayyangar hold In paragraph 19 of the said judgment: The word ‘cognizance has no esoteric or mystic significance in Criminal Law or procedure. It merely means–become aware of and when used with reference to a court or Judge, to take notice of judicially”.
7. With regard to the second branch of the submission of the learned lawyer of the petitioner that the 12th Metropolitan Magistrate was only competent to take cognizance Is completely belled by an unreported decision of this court in the case of Shankar Narayan Chakraborty v. State of West Bengal, Criminal Revision No. 2011 of 1994 decided by the Hon’ble Mr.
Justice Surya Kumar Tewari on 02.9.98. A similar point akin to this revlsfonal application arose and the point canvassed by the learned counsel with regard to the want of absence of cognizance taken by the 12lh Metropolitan Magistrate His Lordship held : “The learned counsel for the petitioner then contended that the learned 12th Metropolitan Magistrate did not take cognizance of the offence. Therefore, the entire proceeding in the case deserves to be quashed. It has been laid down by the apex court In case reported in 1964(2) Cr.LJ 468 that once cognizance Is taken by a Magistrate, no second cognizance can be taken of the same offence. If a learned Magistrate has taken cognizance of the offence for the second time, it would not vitiate entire proceeding but the second cognizance would be liable to be quashed. I, therefore, hold that one cognizance had already been taken by CMM no second cognizance was required to be taken”. His Lordship the Hon’ble Mr. Justice S.K. Tewari further held: “The proviso to sub-section (1) of section 11 of the Criminal procedure Code was inserted by amendment Act No. 45 of 1978, Prior to such amendment, sub-sections (1), (2) and (3) existed as they are. The amended portion only empowers the State Government to establish a court of special Magistrate for trial of specified offences arising out of a particular area. It Is common knowledge that the 12th Metropolitan Magistrate’s court was already functioning when State Government notification dated 30th July. 1991 was issued. It only amounted to investing the powers of special Judicial Magistrate on the Presiding officer already working in the court of 12th Metropolitan Magistrate. The Stale Government did not establish a new court. Section 32, Cr.PC provides that powers would be conferred by the High Court or the State Government either by name or by virtue of offence or class of officials generally by their official titles.
“I now come to the question of validity of taking cognizance. Under section 16(3), Cr. PC jurisdicUon of every Metropolitan Magistrate extends through our the Metropolitan area. It, therefore, follows that the learned Chief Metropolitan Magistrate could take cognizance of the offence but could not try the case instituted by CBI in view of provision to subsection (1) of section 11 Cr.PC which forbids any other Magistrate “to try any case or class of cases for the trial of which such special court of Judicial Magistrate has been established”. Hence the learned Chief Metropolitan Magistrate rightly transferred the case to the learned 12lh Metropolitan Magistrate for disposal according to law and he thereby did not commit any illegality”.
8. I agree with the views of his Lordship, the Hon’ble Mr. Justice Surya Kumar Tewari. I further hold that even held even If a cognizance Is taken illegally or has been taken by a Magistrate who is not empowered by law to do so Is a curable irregularity in view of Clause (e) of section 460 of the Code of Criminal Procedure.
9. In that view of the matter both the points taken by the learned lawyer of the petitioner miserably falls and the revlsional application which deserves no merit at all is liable to be dismissed.
10. Before parting with the case, I would like to express my anguish with regard to the fact that knowing fully well that this case was investigated by the Central Bureau of Investigation and the Central Bureau of Investigation
was a very much necessary party yet the petitioner did not choose to make the same as a party in the revislonal application but for curious reasons made the Stale of West Bengal as the only party. This is extremely condemnable and Is against the tenets of the principle of Natural Justice. The Petitioner came to this court against a proceeding initiated by the CBI without making it a party for reasons best known to them.
11. He who seeks justice in a court of law against another party should definitely implead it as a party in the proceeding. Not only it is a question of fairplay but shutting out a necessary party In a proceeding deprives the court from seeing the other side of the coin as the court while coming to a just decision is required to consider the case of both the parties which are necessary in the proceeding and particularly whose right is being affected. Of course the court Is always competent to direct that the necessary party may be impleaded but that does not mean intentionally an important party should be left out.
12. It Is only the Central Bureau of Investigation which was the necessary parly to have been impleaded In the cause title, however, fortunately this court had the assistance of the learned public prosecutor of the CBI and his associate counsel appearing on behalf of Ihe said Bureau.
13. This lapse Is viewed seriously.
14. The charge sheet was submitted way back on 14-11-95 and cognizance was taken by the learned Chief Metropolitan Magistrate, Calcutta on the same day. The petitioner filed the revisional application on 25-9-97 and although there was no stay granted by this court I am told the trial could not proceed. This is a sorry state of affair and a long period of 4 years have elapsed.
15. That apart, I also find that the revisional court should not be approach at the drop of that without any rhyme or reason which has an Impact on the progress of the proceeding. I also find that It is only for delaying the matter that the present revisional application has been taken out by the petitioner and he has been successful in doing so by stalling Ihe process of law from November 1995 till the middle of 1999. 1 wish to quote from the decision of the Supreme Court in the case of Sanlosh Dey & Another v. Archana Guha & Others as reported in 1994 Cal. Cr.LR (SC) 87. The Hon’ble Mr. Justice B.P. Jeevan Reddy the speaking voice of the Hon’ble Division Bench of the Supreme Court held that: “The facts of this case Impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades to greater, if lie has the means to do so. Any and every single interlocutory is challenged in the Superior Courts and the Superior Courts we are pained to say, are falling prey to their stratagems. We expect the Superior Courts to reslstall such attempts. Unless a grave illegality is committed, the Superior Courts should not Interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep In mind the principle behind section 465, Cr.PC. Any and every irregularity or Infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraclion has caused irreparable prejudice to the party and
requires to be corrected at that stage Itself. Such frequent interference by Superior Courts at the interlocutory stages tends to defeat the ends of Justice instead of serving those ends. It should not be that a man with enough means Is able to keep the law at bay. That would mean the failure of the very system”.
16. In the light of what has been discussed by me, I dismiss the re visional application.
17. The learned Metropolitan Magistrate, 12th court, Calcutta should bear in mind that the need of the hour is to proceed expeditiously and no unnecessary adjournments shall be given, unless there are compelling circumstances, which will tend to delay the proceeding.
18. This order will also govern criminal revision No. 3057 of 1997, Chandra Kumar Poddar v. State which was heard analogously.
Let a copy of this order be sent down to the learned trial court immediately.
19. Application dismissed