Karnataka High Court
Jayarama vs State Of Karnataka on 2 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 2605
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO. 1649 OF 2018
C/W
CRIMINAL PETITION NO. 1650 OF 2018
IN CRIMINAL PETITION NO. 1649 OF 2018
Between:
1. Jayarama,
S/o Ammanegowda,
Aged about 48 years,
R/a No.357, 2nd cross,
Bogadi, 2nd Stage,
Mysuru Taluk and District - 570 026.
2. Shantha Kumar
S/o Ammanegowda,
Aged abut 36 years,
R/a No.131, Dasana Koppal,
Bogadi Post,
Mysuru Taluk and District - 570 026.
3. Shankarappa
S/o Chamundegowda
Aged 50 years,
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R/a No.88, Garadi Bidi,
Bogadi, Mysuru - 570 026.
...Petitioners
(By Sri. M.S.Rajendra Prasad, Senior Counsel
a/w Sri.Manjunatha.N, Advocate)
And:
1. State of Karnataka,
By Saraswathipuram Police Station.
2. Mohammed Israr,
S/o Abdul Wajid,
Aged about 37 years,
R/a No.412,
C extension, Bunny Mantap,
Mysuru.
... Respondents
(By Sri.Rachaiah, HCGP for R-1;
v/o dated 02.04.2018-No notice to R-2)
This criminal petition is filed under Section 482
of Cr.P.C praying to quash the proceedings dated
20.04.2016 in C.C.No.463/2016 on the file of the III
JMFC, Mysuru and consequently allow the petition as
prayed.
IN CRIMINAL PETITION NO. 1650 OF 2018
Between:
1. Jayarama,
S/o Ammanegowda,
Aged about 48 years,
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R/a No.357, 2nd cross,
Bogadi, 2nd Stage,
Mysuru Taluk and District - 570 026.
2. Shantha Kumar
S/o Ammanegowda,
Aged about 36 years,
R/a No.157, 2nd cross,
Bogadi, 2nd Stage,
Mysuru Taluk and District - 570 026.
...Petitioners
(By Sri. M.S.Rajendra Prasad, Senior Counsel
a/w Sri.Pranoy Kumar Pokarna A, Advocate)
And:
1. State of Karnataka,
By Saraswathipuram Police Station.
2. Smt.Shivamma
W/o late Raju,
Aged about 43 years,
R/a No.616, Sy.No.83/2A1,
Bogadi Ring Road,
Bogadi, Mysuru - 570 008.
... Respondents
(By Sri.Rachaiah, HCGP for R-1;
v/o dated 02.04.2018-No notice to R-2)
This criminal petition is filed under Section 482
of Cr.P.C praying to quash the proceedings in
Spl.C.No.357/2017 on the file of VI Additional District
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and Special Judge, Mysuru and consequently allow
the petition as prayed.
These criminal petitions coming on for
Admission this day, the Court made the following:
ORDER
Heard the learned senior counsel Sri.M.S.Rajendra Prasad, appearing for petitioners in both the cases. Learned HCGP has accepted notice for respondent No.1 in both petitions, who is also heard. No notice is issued to respondent No.2 since these petitions are not being admitted for the following reasons.
2. Second respondent complainant lodged a complaint on 04.01.2016 before Saraswathipuram Police Station alleging that he is in possession of a site in Sy.No.82/2B1 in Bhogadi Ring Road, Mysuru by virtue of an agreement and he had obtained an order of temporary injunction by filing a suit in -5- O.S.No.92/2015. It was also arrayed that despite said order of temporary injunction being in force, accused persons had forcibly entered his premises on 04.01.2016 at about 2.15 p.m., abused in foul language and threatened him dire consequence if he refused to vacate the property. It was also alleged by him that petitioner-accused persons has also threatened of eliminating him if he fails to vacate the property. He further alleged that he was also assaulted by the accused persons. Hence, said complaint came to be registered in Crime No.3/2016 against the petitioners for the offences punishable under Sections 447, 341, 323, 504, 506 read with Section 34 of IPC. On completion of investigation charge sheet has been filed in CC No.463/2016. Spl.Case No.357/2017 was registered for the offence punishable Sections 504, 506 read with Section 34 of -6- IPC and Sections 3(1)(r)(s)(z) and 3(2)(5a) of SC/ST POA Act, 1989.
3. Learned jurisdictional Magistrate/District and Sessions Judge by order dated 20.04.2016 and 31.08.2017 respectively, have taken cognizance of offence and issued summons to the petitioners- accused persons. Hence, calling in question the after taking cognizance and issuing summons to the petitioners, is called in question.
4. It is the contention of Sri.M.S.Rajendra Prasad, learned senior counsel appearing for petitioners that both Courts have failed to apply its judicial mind at the time of taking cognizance of offence and as such, proceedings are liable to be quashed. He would also contend that learned Magistrate and learned District and Sessions Judge have in a perfunctory manner issued summons after -7- taking cognizance of offence without examining the material on record. As such, proceedings are liable to be quashed. He would rely upon the judgment of the Hon'ble Supreme Court in the case of S.R.SUKUMAR V.S S.SUNAAD RAGHURAM reported in AIR 2015 SC 2757 in support of his submission.
5. Per contra, learned HCGP would support the initiation of prosecution against petitioners contending that the Investigating Officer, during course of investigation has collected sufficient material to proceed against petitioners and as such, has filed the charge sheet and both learned Magistrate as well as District and Sessions Judge have looked into the charge sheet material and found that cognizance of the offence is to be taken. Hence, there is no infirmity whatsoever in the said orders and as such, he prays for dismissal of the petitions. -8-
6. Having heard the learned counsel for parties and on perusal of materials on record, it is noticed that in the instance case respondent No.2 in both the petitions who is the complainant, has alleged that he was in possession of the property bearing Sy.No.82/2B1, Bhogadi Ring Road, Mysuru and the petitioners-accused persons had forcefully entered his premises, threatened him to vacate said property and had also assaulted him. He also relied upon an order of temporary injunction said to have been passed in O.S.No.92/2015 in his favour by the jurisdictional Civil Court. Thus, it will have to be examined by the jurisdictional Court as to whether said order of temporary injunction was in force when the allayed offence took place on 04.01.2016 at about 3.30 pm. It is needless to state that prosecution will have to establish beyond reasonable doubt that said offence was committed by accused persons.
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7. In so far as infirmity in the order of taking cognizance, it is to be noticed that taking cognizance of an offence is a judicial act which results in issuance of process/summons to the accused persons. In other words, the jurisdictional Magistrate or the learned District and Sessions Judge would call upon the accused persons to appear and as such, right of the accused would be at stake. Hon'ble Apex Court in S.R.SUKUMAR's case referred to supra have held that there should be judicial application of mind at the time of taking cognizance of the offence alleged, and the authoritative pronouncement of the Hon'ble Apex Court in the case of DR. SUBRAMANIAN SWAMY VS DR. MANMOHAN SINGH AND ANR reported in AIR 2012 SC 1185 can be noticed with benefit wherein Hon'ble Apex Court has explained the meaning of the word 'Cognizance' would mean in legal parlance, "taking judicial notice by the court of law,
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possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially". Hon'ble Apex Court in the subsequent judgment in the case of S.R.SUKUMAR's case referred to supra, has also held that Magistrate while taking cognizance of an offence has to apply his judicial mind. Hon'ble Apex Court has held that it would refrained from defining the word 'Cognizance' on the ground it is neither practical nor desirable, since taking cognizance of an offence or not will depend on facts and circumstances of each case.
8. In the light of the aforestated analysis of case law laid down by Hon'ble Apex Court, when facts on hand are examined, and contention of the learned senior counsel appearing for petitioners-accused persons which is to the effect there was no judicial
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application of mind by the learned Magistrate and learned District and Sessions Judge while taking cognizance cannot be accepted, since order taking cognizance of the offence would clearly go to show that learned Magistrate/District and learned Sessions Judge has taking cognizance after, looking into the materials and on being satisfied that a cognizable offence has been committed and thereafter has issued process. It is trite law that no elaborate order would be required to be passed at the stage of taking cognizance of an offence and if in the facts and circumstances of the case, the records would disclose that there is judicial application of mind by the learned Magistrate and learned District and Sessions Judge, as it has happened in the instant case, it would meet the requirement of law.
9. In that view of the matter, this Court finds that it would not be appropriate at this stage, to
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examine as to whether there is truth in the allegation made by complainant or the material produced by prosecution would not result in conviction of accused. Such consideration would be outside the scope of Section 482 proceedings.
10. It is needless to state that the petitioners would be at liberty to seek for discharge, if so advised, by filing appropriate application before the learned Magistrate and learned District and Sessions Judge and in the event of such applications being filed, jurisdictional Courts shall examine the same on merits and in accordance with law without being influenced by its earlier observations or any observations made by the Court in the course of this order. With these observations both petitions stand disposed of.
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In view of the disposal of the main petitions, I.A.No.1/2018 for stay filed in both the petitions do not survive for consideration, and they stand rejected.
SD/-
JUDGE dn/-