In the High Court at Calcutta Circuit Bench at Jalpaiguri Criminal Revisional Jurisdiction Present: The Hon’ble Justice Rai Chattopadhyay CRR 86 of 2024 Lalan Prasad @ Lalan Prasad Kanu versus The State of West Bengal & Anr. For the petitioner : Mr. Sourav Ganguly : Mr. Gopal Roy : Ms. Deblina Roy : Ms. Rishita Chakraborty For the State : Mr. Gobinda Ghosh : Mr. Debabrata Rai Heard On : 03.07.2026 Judgment On : 08.07.2026 Rai Chattopadhyay, J. (1) In the instant revision, the petitioner has challenged the proceeding in connection with C.R. case No. 515 of 2001, in the Court of Chief Judicial Magistrate at Alipurduar, arising out of Kalchini Circle Excise Seizure List No. 126/2001-2002 dated December 05, 2001, in which an offence against the petitioner under section 46A(c) of the Bengal Excise Act, 1909 has been alleged. The order of the Magistrate taking cognizance of the offence dated July 03, 2018 has also been challenged in the instant revision. Page 2 of 9 (2) As per the complaint, the raiding party recovered illicit liquor from the house of the petitioner, on December 05, 2001, at about 17.00 hours. The accused person/petitioner had escaped. Immediately thereafter, the complaint was lodged alleging commission of offence by the petitioner under section 46A(c) of the Bengal Excise Act, 1909 and loss of Government revenue to the tune of Rs. 20,000/-. (3) Mr. Sourav Ganguly, learned advocate for the petitioner has submitted that P.O.R. has been submitted in the instant case after an inordinate prolonged delay of 15 years, on July 03, 2018. He further states that the prosecution has not been able to submit the original P.O.R. in Court. Instead, a photocopy of the same has been submitted. According to him no justifiable reason for the delayed submission of P.O.R. is forthcoming on record. (4) His further submission is that the Court has acted mechanically and without application of mind while taking cognizance of offence, vide order dated July 03, 2018, in so far as firstly it has overlooked the inordinate period of unexplained delay in submission of P.O.R. by the prosecution. Also, that the Court has erroneously accepted photocopy of the P.O.R. without any justifiable reason. Further, it is submitted that the place of season as shown in the P.O.R. is not the house of the present petitioner but common public place. And lastly and most importantly, it has been submitted that the impugned order of the Magistrate taking cognizance of the offence is not only mechanical but stands in contravention of the Rules in so far as the said order has been written with the help of some other person whereas the portion cognizance “taken” is possibly endorsed by the Magistrate himself, without going to the rest portion of the order, which stands in violation of Rule 183 of Calcutta High Court Criminal (Subordinate Courts) Rules, 1985 and also in contravention of the Court’s judgements in this regard. (5) In support of his argument, Mr. Ganguly, learned advocate has relied on the following judgments: a. Mehmood Ul Rahman versus Khazir Mohammad Tunda and Others reported at (2015) 12 SCC 420; b. Abhijit Kavade versus State of West Bengal and Others reported at (2022) SCC Online Cal 1570; c. Sharmistha Chowdhury and Another versus State of West Bengal and Others reported at 2017 SCC Online Cal 9902. (6) Mr. Gobinda Ghosh has appeared or the State and raised objection as to the contentions and prayer of the petitioner in the instant criminal revision case. According to him there is no illegality or infirmity in the order of the Magistrate dated July 03, 2018, taking cognizance of the offence alleged against the petitioner on the basis of P.O.R. submitted in the case. It is submitted that a duly authenticated and certified to be true copy of the P.O.R. was submitted in Court by the prosecution, on the basis of which the Magistrate has duly taken cognizance of offence against the petitioner. (7) Mr. Ghosh, learned advocate for the State has relied on the judgment of Supreme Court in Pradeep S. Wodeyar versus State of Karnataka reported at (2021) 19 SCC 62, to submit that the petitioner has not been able to demonstrate any failure of justice, caused to him due to alleged error/omission or irregularity in taking cognizance of offence by the learned Magistrate. Unless any such failure of justice is manifest, this Court may not be interfered with the proceeding before the learned trial Court and cognizance of offence taken by the said Court. On the basis of the finding of the Supreme Court in the judgment, it has been submitted on behalf of the state that in general principle embodied in section 465 of CRPC is that the finding order is not reversible due to the irregularities if any, unless a “failure of justice” is proved. (8) Mr. Ghosh learned advocate for the State has further submitted that the officer-in-charge of Excise vide his report dated July 21, 2025 has stated that search and seizure has been made in the case duly in accordance with the law and the Preliminary Offence Report (P.O.R.) was submitted before the Magistrate on May 28, 2002. (9) At the outset, it deserves to be noticed that the prosecution case rests upon an occurrence allegedly dated December 05, 2001. However, cognizance of the alleged offence came to be taken only on July 03, 2018, almost seventeen years after the alleged occurrence and approximately fifteen to sixteen years after the prosecution claims that the Preliminary Offence Report (P.O.R.) had been submitted before the learned Magistrate. Such an extraordinary delay strikes at the very foundation of a fair criminal process and therefore cannot be treated as merely an insignificant procedural irregularity. (10) The principal defence of the State is that the original P.O.R. was, in fact, submitted before the Court on May 28, 2002 and that only because the original could not subsequently be traced, a certified photocopy thereof was produced in the year 2018. Significantly, however, except a report of the Officer-in-Charge, Excise, dated July 21, 2025, there is absolutely no contemporaneous judicial or official record evidencing such alleged submission in the year 2002. Neither any filing register, receipt register, institution register, order-sheet, endorsement of the receiving section, nor any contemporaneous acknowledgment of the Court has been produced. The report dated July 21, 2025 is merely a self-serving administrative assertion made long after the controversy arose and cannot, by itself, establish the fact of filing of the P.O.R. in the year 2002. A foundational jurisdictional fact, namely institution of the prosecution before the competent Court, cannot be proved merely by a subsequent departmental report unsupported by contemporaneous records. Once the petitioner specifically disputed the alleged filing in 2002, the burden lay upon the prosecution to produce the best available evidence in support of such assertion. Its failure to do so necessarily invites an adverse inference.Consequently, this Court is unable to accept the contention that the prosecution had validly instituted the proceeding before the learned Magistrate in the year 2002. The record before this Court rather discloses that cognizance ultimately came to be taken only on the basis of a photocopy of the P.O.R. produced in the year 2018 without any satisfactory explanation as to why the original record was unavailable or how the proceeding remained dormant for nearly one and a half decades. Page 6 of 9 (11) The Supreme Court in Mehmood Ul Rahman (supra) has authoritatively held that taking cognizance is not an idle or mechanical formality. The order must disclose that the Magistrate has applied his judicial mind to the material placed before him and has satisfied himself that the statutory requirements for proceeding further are fulfilled. A cryptic or mechanical order, bereft of any indication of application of mind, cannot satisfy the mandate of law. The decision reiterates that the Magistrate performs a judicial function at the stage of cognizance and cannot act merely as a post office for the prosecuting agency. (12) The same principle has consistently been reiterated by this Court in Abhijit Kavade (supra) and Sharmistha Chowdhury (supra), wherein it has been held that the order taking cognizance must reflect conscious judicial scrutiny of the materials placed before the Court and not a routine endorsement of the prosecution papers. The High Court has repeatedly emphasised that observance of procedural safeguards at the stage of cognizance is not an empty ritual but constitutes an important guarantee against arbitrary prosecution. Where the order itself demonstrates non- application of mind or departure from the mandatory procedure governing judicial orders, the High Court would be justified in exercising its revisional jurisdiction to prevent abuse of the process of Court. (13) Tested on the touchstone of the aforesaid principles, the impugned order does not inspire confidence. The learned Magistrate neither adverted to the extraordinary lapse of almost sixteen years in bringing the matter before the Court nor recorded any satisfaction regarding the acceptability of a photocopy in place of the original P.O.R. The order is completely silent as to the circumstances necessitating acceptance of secondary material and equally silent regarding the prolonged dormancy of the proceeding. Such silence assumes significance because these were not peripheral facts but matters directly bearing upon the jurisdiction to proceed further. The omission, therefore, reflects absence of the judicial scrutiny contemplated in Mehmood Ul Rahman (supra) and the decisions of this Court. (14) The reliance placed by the learned State Counsel upon Pradeep S. Wodeyar (supra), in fact advances the petitioner's case rather than defeating it. The Supreme Court undoubtedly held that by virtue of the principle embodied in Section 465 of the Code of Criminal Procedure, every procedural irregularity does not ipso facto vitiate criminal proceedings unless it has occasioned a "failure of justice". However, the expression "failure of justice" is neither narrow nor illusory. It encompasses situations where procedural lapses have substantially prejudiced the accused or have deprived the Court of the opportunity of exercising its jurisdiction in accordance with law. (15) In the present case, the unexplained disappearance of the original P.O.R., the complete absence of any contemporaneous proof of its alleged filing in 2002, the extraordinary delay of nearly one and a half decades before cognizance was ultimately taken, and the absence of any judicial examination of these glaring circumstances have unmistakably caused serious prejudice to the petitioner. Passage of such an enormous period inevitably affects availability of evidence, memory of witnesses, possibility of securing defence materials and the overall fairness of the criminal process. More importantly, had the P.O.R. in fact remained unfiled till 2018, the learned Magistrate ought to have examined the legality and propriety of entertaining such prosecution after such extraordinary lapse. By mechanically taking cognizance without addressing these issues, the Court effectively deprived the petitioner of the protection which judicial scrutiny at the threshold is intended to provide. Such prejudice squarely answers the test of "failure of justice" propounded in Pradeep S. Wodeyar (supra).The Court cannot overlook that criminal law is not merely concerned with the ultimate determination of guilt or innocence but equally with fairness of the process by which an accused is brought to trial. Procedural safeguards are integral components of the guarantee of fair procedure under Article 21 of the Constitution. Where the prosecution fails to establish the very institution of the proceeding through reliable contemporaneous records and seeks to revive a criminal prosecution after nearly seventeen years on the basis of a photocopy unsupported by satisfactory explanation, permitting such prosecution to continue would amount to sanctioning an abuse of the process of Court rather than advancing the cause of justice. (16) Viewed from any angle, therefore, the prosecution has failed to satisfactorily explain the extraordinary delay in submission of the P.O.R. before the Court or to establish by credible contemporaneous material that the P.O.R. had in fact been filed in the year 2002. The learned Magistrate, without examining these foundational infirmities, mechanically proceeded to take cognizance. The cumulative effect of these circumstances leaves this Court with no hesitation in holding that continuation of the criminal proceeding would itself result in manifest injustice. (17) Accordingly, the criminal revision succeeds. The order dated 3rd July, 2018 taking cognizance in C.R. Case No. 515 of 2001 arising out of Kalchini Circle Excise Seizure List No. 126/2001-2002 and all consequential proceedings pending before the learned Chief Judicial Magistrate, Alipurduar, are hereby quashed and set aside. The revisional application is, accordingly, allowed. (18) Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. (Rai Chattopadhyay, J.)