STATE OF GUJARAT versus AFROZ MOHAMMED HASANFATTA

Citation: [2019] 1 S.C.R. 1104 · Decided: 05-02-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 1 S.C.R.
STATE OF GUJARAT
v.
AFROZ MOHAMMED HASANFATTA
(Criminal Appeal No. 224 of 2019)
FEBRUARY 05, 2019
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973 – s.190(1)(b) – Allegation
of cheating/ siphoning of huge amounts of money through Hawala
– A complaint was filed by the ICICI Bank against a company
alleging that they hatched a conspiracy and as a part of this
conspiracy submitted false and bogus bill of entry in the Bank and
forwarded huge sum through Hawala to Dubai and Hong Kong to
different companies and thereby cheated  Government of India  –
FIR registered against the said company – Respondent’s name did
not appear in the FIR – During course of investigation, statements
of various persons were recorded and as per the prosecution, these
statements, implicated the respondent and other accused persons –
Charge-sheet was filed wherein the respondent was referred to as a
suspect – In the first supplementary charge sheet, the respondent
was not added as an accused – Based on further investigation,
second supplementary charge sheet was filed and relying on it, the
Magistrate took cognizance of offence against accused including
respondent  – Issuance of process – High Court granted bail to
respondent – Respondent filed revision challenging the order taking
cognizance of offence – High Court allowed the revision holding
that there was no material either direct or circumstantial to point
out any connection of respondent with alleged offences of forgery,
cheating, conspiracy etc. – State challenged the order of High Court
by filing instant appeal – Held: The offence alleged to have been
committed was a complex economic offence of sending foreign
exchange to Dubai and Hong Kong through Hawala by setting up
a web of companies  and was not a simple case of forged Bills of
Entry – High Court erred in proceeding to examine the case as if it
was a simple case of submission of forged Bills of Entry by observing
that the case was not related to any import or export of diamonds –
When the satisfaction of the Magistrate was based on the charge
[2019] 1 S.C.R. 1104
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sheet and the materials placed before him, the satisfaction cannot
be said to be erroneous or perverse and the satisfaction ought not
to have been interfered with – While taking cognizance of an
offence based upon a police report, it is the satisfaction of the
Magistrate that there is sufficient ground to proceed against the
accused – Along with the second supplementary charge sheet,
number of materials like statement of witnesses, Bank statement of
the respondent-accused and his company and other Bank Statement,
Call Detail Records and other materials were placed and the
Magistrate satisfied himself that there was sufficient ground to
proceed against the respondent and issued summons – When the
prosecution relied upon the materials, strict standard of proof was
not to be applied at the stage of issuance of summons nor to examine
the probable defence which the accused may take – All that the
court was required to do is to satisfy itself as to whether there are
sufficient grounds for proceeding – High Court ought not to have
gone into the merits of the matter when the matter was at nascent
stage – Impugned order is liable to be set aside – The order of the
Magistrate taking cognizance of the second supplementary charge
sheet for the offences and issue of process to the respondent-accused
restored – Penal Code, 1860 – ss.420, 465, 467, 468, 471, 477A
and 120-B – Economic Offence.
Code of Criminal Procedure, 1973 – s.190(1)(b) – Cognizance
of offence and issue of summons based on police report – Whether
the Magistrate has to record reasons for its satisfaction of sufficient
grounds for issuance of summons – Held: In so far as taking
cognizance based on the police report, the Magistrate has the
advantage of the charge sheet, statement of witnesses and other
evidence collected by the police during the investigation – Evidence
and materials so collected are sifted at the level of the Investigating
Officer and thereafter, charge sheet is filed – In appropriate cases,
opinion of the Public Prosecutor is also obtained before filing the
charge sheet – Thereafter, Magistrate is only required to pass an
order issuing summons to the accused – Such an order of issuing
summons to the accused is based upon subject to satisfaction of the
Magistrate considering the police report and oth

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