1. The petitioner before me is Saradindu Chanda who served as a clerk in the Sales Tax Directorate, West Bengal. On or about January 23, 1957 two persons were produced before the Chief Presidency Magistrate, Calcutta in connection with the theft of sales tax declaration book in the name of one Ramswarup Mamchand. They were released on bail. On January 24, 1957 two other persons were produced under arrest before the Chief Presidency Magistrate in connection with the same case on the charge that they were in possession of certain sales tax declaration forms, both used and unused. These persons were also granted bail. On April 5, 1957 one Mahal Chand Sethia was arrested in connection with the said case on a charge of theft of 100 pages of sales tax declaration forms. There were further charges that upon a search of his residence and guddi various other forms, chemicals, forged seals of the Commercial Tax Directorate etc., were found and seized. On or about February 26, 1959 a charge sheet was submitted against 77 persons with charges under sections of the Indian Penal Code as mentioned in paragraph 5 of the petition. On September 25, 1959 another charge sheet was issued in connection with the said case and it is in this charge sheet that the petitioner's name was included. Copy of the charge sheet is Annexure B to the petition. It is stated there that the accused persons entered into conspiracy to cheat the State of West Bengal of sales tax, by using stolen, forged and fabricated sales tax declaration forms which were forged by the accused persons in pursuance of the conspiracy and that some of them committed the offence of criminal breach of trust. The opposite party No. 2, viz., the Inspector, Enforcement Branch, prayed for process to be issued against the petitioner and others by a petition dated September 25, 1959, On September 26, 1959 the Chief Presidency Magistrate issued summons against the petitioner and four others. It is against this order that this application is directed.
2. The ground made out is that it is only the Special Court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 which could take cognisance of the offences alleged against the petitioner, and try the same. It is, therefore, argued that the respondent No. 1, the Chief Presidency Magistrate, has no power to take cognisance of the matter and issue summons. The learned Advocate General appearing on behalf of the respondents concedes that the offence or offences charged against the petitioner is triable by the Special Court constituted under Act XXI of 1949. He argues however that the issue of summons is not necessarily taking cognisance and, therefore, the learned Chief Presidency Magistrate was quite within the law in issuing the summons. After the accused appears before the learned Chief Presidency Magistrate he will have to decide whether he has jurisdiction or not and in this particular case will have to send it to the Special Court. He has cited before me a decision of the Supreme Court in R. R. Chari v. State of Uttar Pradesh, : 1951CriLJ775 . That was a case in which a warrant of arrest was issued for the purpose of investigation. It was held that this was not taking cognisance of the offence. It was laid down that although taking cognisance had not been defined in the Code of Criminal Procedure, it must be found that the Magistrate must have not only 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 provisions of Chapter XIV -- proceedings under Section 200 and thereafter, sending it for enquiry and report under Section 202. When the Magistrate applied his mind, not for the purpose of proceedings under these subsequent sections but for taking some action 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 cognisance of the offence. In my view, the learned Chief Presidency Magistrate in this case did take cognisance of the offence. The issue of a summons would, it is conceded, be under Section 204 of the Code of Criminal Procedure. The section itself shows that such a process could be issued if, in the opinion of a Magistrate taking cognisance of an offence, there is sufficient ground for proceeding. It is in such circumstances alone that summons may be issued for attendance of the accused. The issue of a summons is not comparable to the issue of a warrant of arrest or the doing of something else during investigation and for the purpose of assisting or completing the same. In this case, the investigation is complete and the charge sheet has been submitted by the police, and the learned Chief Presidency Magistrate thereafter, has applied his mind and thought it fit to issue process by way of a summons under Section 204 of the Code of Criminal Procedure. In my opinion, he could only do so after taking cognisance. It is conceded that the learned Chief Presidency Magistrate could not take cognisance of the offence in this case and that the proper person to take cognisance would be the Special Court constituted under Act XXI of 1949. Therefore, this Rule must be made absolute and a writ in the nature of certiorari is issued quashing the order of the learned Chief Presidency Magistrate issuing the summons.
3. There will be no order as to costs.