The Deputy Director (Investigation) made a complaint under section 200 of the Code of Criminal Procedure, 1973 against the assessees alleging commission of offences punishable under sections 276C(1), 277 and 278 read with sections 278B and 278E of the Income-tax Act, 1961 and sections 120B, 191, 199, 200 and 204 of the Indian Penal Code, 1860. The gravamen of accusation against the accused persons was that accused No. 1, an I. A. S officer in the State of Chhattisgarh, was engaged in movement of unaccounted cash through different channels with regard to sectors such as agriculture, mining, liquor trade and licensing in the State of Chhattisgarh in connivance with the other accused persons. The magistrate directed the return of the complaint to the extent of those offences, which, according to him had arisen beyond the territorial jurisdiction of Delhi. The Department filed an application seeking stay of that portion of the order whereby the magistrate had returned the complaint in respect of the offences under the 1961 Act and the Indian Penal Code for filing them before the court of competent jurisdiction Court held that  the accused respondents had no locus to either file an application or raise any objections qua territorial jurisdiction, conspiracy or bias at the pre-cognizance stage. Equally, the magistrate had, by entertaining such application and retaining the arguments on such objections and considering them, acted with material irregularity. Till the accused person was summoned by the criminal courts, he had no locus to interject or interfere with the proceedings before a magistrate. Till the cognizance of the offence was taken, the accused was not a person who was identified as such, for him to be vested with any right of audience, apart from the fact that it was possible that even after the preliminary inquiry under section 202 of the 1973 Code, the magistrate might dismiss the complaint, without even calling upon the accused. That the magistrate had committed procedural illegality and irregularity by not only entertaining the application but also hearing detailed arguments on behalf of the proposed accused person, admittedly at a stage when cognizance was yet to be taken violating the law as declared by the constitutional courts. That though the magistrate had applied his mind, he had misdirected himself to reach definitive conclusions on issues such as territorial jurisdiction and conspiracy without there being evidence on such aspects. It would be relevant to consider the provisions of section 178 of the 1973 Code whereby different situations in respect of an offence, where the offence was committed partly in one local area and partly in another, or where an offence was a continuing one and continued to be committed in more local areas than one, or where it consisted of several acts done in different local areas might be inquired into or tried by a court having jurisdiction over any of such local areas. That the definitive conclusion reached by the magistrate regarding the conspiracy was unsustainable. The allegation that the conspiracy had continued at Delhi needed to be tested in trial. He had definitively concluded that the conspiracy had ended in Chattisgarh and no part of it had continued till Delhi. This conclusion could not and ought not to have been reached by him, particularly at the stage where cognizance of the offences was to be taken. If such an order was made to stand, then at the stage of taking cognizance, the accused by mere arguments would get an opportunity to show that no such conspiracy was hatched, that too without any evidence. This would be contrary against all cannons of law and procedure. That the submissions of respondent Nos. 1, 2 and 3, that since there was no territorial jurisdiction to adjudicate upon the offences arising under sections 276C(1) and 278 read with sections 278B and 278E of the 1961 Act and sections 120B, 191, 199, 200 and 204 of the Indian Penal Code and therefore, there was no prejudice caused to the Department since that portion of the complaint in respect of those offences has been returned to be filed at the court of competent jurisdiction in the State of Chattisgarh was erroneous and not only contrary but also destructive of the stand taken by them before the revisional court which granted stay on the basis that the magistrate had no right, authority or jurisdiction to split the complaint or the offences arising from the same transaction. A party could not be permitted to approbate and reprobate in the same breath or take mutually destructive pleas and their taking varying stands according to their own convenience was impermissible in law. That the operation of the order passed by the magistrate to the extent it returned the complaint qua the offences under sections 276C(1) and 278 read with sections 278B and 278E of the 1961 Act and sections 120B, 191, 199, 200 and 204 of the Indian Penal Code was restrained till further orders. The observations were prima facie in nature and were not tantamount to any expression on the merits of the matter at the present stage. Criminal conspiracy is an issue of fact and can be proved or disproved by the parties by leading evidence during trial and cannot be ascertained merely by appreciating either documents or arguments and therefore, no definitive conclusion on such issue can be reached by any court at the stage of taking cognizance. It is trite that conspiracy is an issue of fact which can be proved or disproved only during trial. Relied on

Purushottamdas Dalmia v. State of West Bengal (1962) 2 SCR 101 ; AIR 1961 SC 1589 (AY. 2020-21)