SATYABRATA SINHA, J. - (1.) ALTHOUGH the matter is listed under the heading 'To be Mentioned', as the learned Counsel for the parties have argued the case on merits, the matter is being treated on day's list and is being disposed of.
(2.) A First Information Report was lodged as against the petitioner, inter alia on the, allegation that some girls have been kept confined in their house and would be sent to Kerala. The said First Information Report was lodged as far back as on 25.8.96. The police authorities in discharge of the statutory duties instituted a case under sections 363 and 366 of the Indian Penal Code as against the petitioner. Investigation is now complete and admittedly, charge -sheets have been filed in the Court of the Sub -Divisional Judicial Magistrate, Barrackpore, being Nos. 54 dated 25.9.96 and 62 dated 1.10.96. Despite the fact that the said chargesheets have been filed long back, it is asserted by the learned Counsel for the petitioners that no cognizance has yet been taken.
(3.) LEARNED Counsel for the petitioners submits that the very basis of the allegations against the petitioners are false, inasmuch as, the girls in question have made statements before the police as also have filed applications before the Sub -Divisional Judicial Magistrate, Barrackpore, inter alia stating that the petitioners are not guilty of the offences alleged against them. The said purported applications are contained at pages 51 and 53 of the brief. Keeping in view the fact that the police has submitted chargesheets, in my opinion, this Court should not exercise its discretion under Article 226 of the Constitution of India, inasmuch as, in the event, the Sub -Divisional Judicial Magistrate takes cognizance of the offence as against the petitioners, the petitioners may file an application for quashing the said order before this Court by filing an application under section 482 of the Code of Criminal Procedure. Filing of charge -sheet by itself does not infringe any right of the petitioner. A legal proceeding against an accused commences only when the Court takes cognizance of the offence and summon the accused persons to stand trial. It is, thus, not the proper stage where this Court can evaluate the evidences produced before the police authorities and/or Court, as has been argued by learned Counsel for the petitioners. This Court can exercise its jurisdiction under Article 226 of the Constitution of India. inter alia, in a case where the First Information Report even if given face value and taken to be correct in its entirety do not disclose any cognizable offence or the investigation is mala fide. The petitioners have allowed the investigation to be carried out and when the charge -sheet have been filed, this application under Article 226 of the Constitution of India has been filed presumably to stall the criminal proceedings. Apart from any other ground, this Court, in my opinion, should not entertain this writ application on the ground of delay and laches on the part of the petitioners, apart from the reasons stated hereinbefore. Furthermore, in the event assertion of the petitioners is correct that no cognizance of the offences as against the petitioners has yet been taken, it is expected that before doing so, the Sub - Divisional Judicial Magistrate shall consider the materials on record and see as to whether a case for taking cognizance as against the petitioners has been made out or not. Such an order has to be passed upon application of judicial mind. This application has evidently been filed with a view to see that the Sub -Divisional Judicial Magistrate may not be able to exercise his jurisdiction under the Code of Criminal Procedure for passing an order on the aforementioned charge -sheets. Furthermore, if the order taking cognizance is passed, it would be open to the petitioner to file,a revision application or an application under section 482 of the Code of Criminal Procedure. Reference in this connection may be made to State of Himachal Pradesh v. Shri Pirthi Chand and Anr. reported in (1997) 1 Cal. LT (SC) 12: [1996(2) All India Criminal Law Reporter 285 (SC)].;