Karnataka High Court
Sri. K. Ramachandra Reddy vs State Of Karnataka on 30 March, 2011
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARAWAD
Dated the 3Qth day of March 201 1
:BEFORE:
HON'BLE MR.JUSTICE : V.JAGANNATHAN
CRIMINALPETITIONNo. 10124 / 2011
BETWEEN:
Sri K.Ramachandra Reddv,
Aged about 42 years,
Sb Chinna Thimmappa,
Available at Ennoble House,
Krishnamachari Road, Bellary.
Petitioner
(By Sri C.V.Nagesh, Sr. Advocate,
for Sri V.M.Sheelavant.)
AND:
1. State of Karnataka,
by the Station House Officer,
Toranagal Police Station, Toranagal,
Bellarv District.
2. Sri T.Narayana Reddy,
S/o late Tapal Thimmappa,
Aged about 86 years, "Lakshmi Nivasa",
Opp: Anupama Nursing Home,
Lokareddy Compound. Moka Road,
Gandhinagara, Bellary,
Bellary District.
Respondents
(By Sri Jayakumar S,Patil, Sr. Advocate, for Sri
G.K.Hiregoudar, for R-2.
Sri Vinayak Kulkarni, H.C.G.P, for R 1.)
Criminal Petition filed under Section 482 of the
Cr.P.C. praying to reverse and set aside the order dated
24.6.2008 passed in C.C,No. 569/2008, presently
pending on the file of the Civil Judge (Jr.Dn.) & JMFC,
Sandur, directing registration of a case against the
petitioner and his three other companion accused, etc.
This petition coming on for hearing this day, the
court made the following
ORDER
In this petition under Section 482 of the Cr.P.C., the petitioner calls in question the order of the trial court taking cognizance against him and issuing summons.
2. The factual matrix which has given rise to the order taking cognizance, briefly stated, are that, a complaint was lodged by one Naravana Reddv, who is R-2 herein, with the Sub-Inspector of Police, Toranagal Police Station. alleging that on 31.8.2006, at about 6.00 a,m., Ramachandra Reddv and Janardhan Reddy, their Manager Laxmiprasad and Kumar Reddy, all entered the mining area of the complainant and removed the boundary stones and had put up cement pillars. In this connection, on 31.8.2006 at around 12.00 noon, Ramachandra Reddv, the present petitioner, spoke over the mobile to the complainant and requested him to see that no obstacle is put to the work that was being carried on by the aforementioned manager and other staff and otherwise, the result would be serious. Later on, Janardhan Reddv also spoke over the mobile phone and informed the complainant that the matter could be resolved by talking to each other across the table.
3. Stating all these in the complaint, the complainant requested the Sub-Inspector of Police to give protection to him, his family and staff and ensure that no danger to reputation and life or property takes place. This complaint led to a case being registered in Crime No. 118/2006 in respect of the offences punishable under Sections 143, 447, 434 and 506 read with 149 of the I.P.C.
4
4. On completion of the investigation, the P.S,I., Toranagal. filed charge sheet and the trial court took cognizance and ordered a case to be registered and issued summons to A- 1 to A-4, It is this order of the trial court taking cognizance and issuing summons that is assailed in this petition by A-i.
5. Learned senior counsel Shri C.V.Nagesh for the petitioner prefaced his argument by submitting that the basic attack is in respect of the procedure followed by the trial court in taking cognizance and issuing summons to the petitioner and, therefore, he would confine his arguments only to this basic aspect of the matter and if need be, he would also make submissions on the merits of the case.
6. It is the contention of the learned senior counsel for the petitioner that a plain look at the order sheet of the trial court dated 24.6.2008 will make it clear that, except affixing his signature to the typed portion, the entries are all made by the ministerial staff and even the order indicating taking of cognizance and registering of the case and issuing summons is also typed one and, as such, it is very apparent that the learned trial judge did not apply his mind before taking cognizance and apart from the aforesaid features, in the order sheet dated 24.6.2008, the fact that there is also the short signature of the ministerial staff below the words "JMPC, Sandur." and it indicates that the entire order sheet was put up by the ministerial staff and all that the learned trial judge did was to affix his signature to the said order. Moreover, the order sheet also reveals that, on the left side it is written "No charge sheet copy & sign on C/S". It is, therefore, contended that the trial court did not take cognizance and the procedure laid down in regard to taking cognizance by the Apex Court and also by this court has not been followed.
7. The further defect pointed out is that, there is no indication in the order taking cognizance as to in respect of which of the offence the cognizance is taken and this is also an aspect which would go to indicate total lack of application of mind on the part of the learned trial 6 judge. Therefore, the learned senior counsel argued that the very procedure adopted by the trial court in taking cognizance and issuing summons is contrary to the law laid down by the Apex Court and this court and in this connection, he referred to the decisions reported in ILR 2000 Karnataka 4773, ILR 2001 Karnataka 1984, ILR 1993 Karnataka 651 and ILR 2001 Karnataka 1607, and sought for quashing of the proceedings against this petitioner.
8. Yet another contention put forward is that, though one of the accused had earlier approached this court and filed a criminal petition under Section 482 of the Cr.P.C. and the said petition came to be disposed of by this court after making an observation that no interference is called for against the order of the trial court taking cognizance, yet, the said order was passed under the circumstance of none appearing for the petitioner in the said case and, therefore, it will have to be construed as an ex parte order. As such, the said order will have no implication on the petition filed by the 7 '. 1 w present petitioner, who incidentally was not the petitioner in the said petition. In this regard, it is argued that, even though Section 362 of the Cr.P.C. is a bar to recall the order passed, yet, where the order was passed in the absence of the counsel and the absence of the counsel was due to human mistake, the court cannot refuse to recall the order merely because of the provision contained in Section 362 of the Cr.P.C. The decision referred to in this connection is the one reported in 2011 AIR SCW 1473.
9. The learned senior counsel also pointed out that his contention that the trial court has not applied its mind before taking cognizance and issuing summons is further fortified by the very fact that, even in the complaint, the allegations made were against the Manager and other staff and not against the petitioner and that apart, the words spoken to by the petitioner • and JanardhanReddy also do not corne in ary..way 'n any of the offences alleged in the complaint. This itself shows that the trial court did not look into any of the papers let alone the charge sheet and, as such, the cognizance taken is liable to be interfered with by this court by quashing the said order dated 24.6.2008.
10. On the other hand, learned senior counsel Shri Javakumar S.Patil for R-2 argued that this court, on an earlier occasion, dismissed the criminal petition filed by accused Janardhan aReddy in Crl.P.No. 7073/2010 and the court did not deem it proper to interfere under Section 482 of the Cr.P.C. when charge sheet has been submitted following which the court had taken cognizance and directed issuance of summons. Therefore, the very said order comes in the way of the present petition being entertained even though filed by A- 1. It is then contended that the trial court has taken cognizance and directed issuance of summons and, as such, the very use of the expression "cognizance taken"
itself is indicative of the application of mind on the part of the learned trial judge and, as such, no infirmity can be found in the order taking cognizance. 9
11. It is the further submission of the learned senior counsel that the trial court, which is burdened with heavy load of cases, is not expected to pass a detailed order at each state of the case and, therefore, when the trial court has taken cognizance and directed issuance of summons to the accused, the requirement of law insofar as the procedure contemplated for taking cognizance has been complied with substantially. Therefore, the order of the trial court does not call for any interference.
12. The learned senior counsel, in particular, referred to several decisions of the Apex Court to contend that the order passed in the present case is identical with the order passed by the learned Magistrate in the case which was under consideration before the Apex Court in the decision reported in AIR 2003 SC 1900. The learned senior counsel also referred to the decision of the Apex Court reported in MR 2000 SC 1456 to submit that
-
there is no legal requirement imposed on a Magistrate for passing a detailed order while issuing summons.
k 10
13. A decision reported in 2005 AIR SCW 5162 is also pressed into service by the learned senior counsel for the respondent to contend that, in the said case, there was also a rubber seal order signed by the judge and the Apex Court did not find any fault in the order of the learned Magistrate issuing process.
14. Yet another decision on which reliance reliance is placed by the learned senior counsel for the respondent is the one reported in AIR 1976 SC 1947. Attention was drawn to the observations made in paragraph-2 of the said decision, wherein the Apex Court has held that, at the &€e of issuing process, the Magistrate is mainly concerned with the allegation made in the complaint and it is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.
15. The last of the decisions referred to by the learned senior counsel for the respondent is the one reported in 11 AIR 1976 Sc 1672 and, in the said case, the Apex court dealt with the expression "taking cognizance of an offence" and held that cognizance is said to have been taken when the Magistrate applies his mind for proceeding under Section 200.
16. In the light of the aforesaid decisions referred to, it is contended by the learned senior counsel for the respondent that the order of taking cognizance, therefore, cannot be interfered with by this court and, as such, the petition be dismissed.
17. The learned Government Pleader for R-1 has adopted the arguments of the learned senior counsel for R-2.
18. As both sides have focussed their arguments only on the basic aspect of the procedure followed by the trial court in taking the cognizance, it is not necessary to refer to the merits of the case except a passing reference wherever it is found necessary.
12
19. The entire attack of the petitioner being directed against the order dated 24.6.2008, it is necessary to reproduce the same hereunder to appreciate the contentions put forward by both sides:
"24/6/08 The PSI of Toranagallu PS has submitted the charge sheet against Al to 4 for the offence p/u/s 434-506-R/W 34 IPC in this Cr.No. 118/2006 and the aced 1 to 4 are on Pri. Dist. & Sessions Judge Court, Bellary, and the properties seized under PP No. 118/06 are under the Police custody.
Cognizance taken.
Register the case & issue summons to Accused No. 1 to 4 call On: 18.7.2008.
No charge sheet
Copy & sign on C/S Sd/- 24/6
JMFC, SANDUR.
Id /
20. A plain look at the aforesaid order or proceeding reveals the following. First of all, except the signature of the learned Magistrate which is found affixed above the 13 designation "JMPC, Sandur.", there is no other order being passed which can be said to be in the writing of the learned trial judge. Secondly, after the ink written portion at the top, there is typed portion and after that, apart from the signature of the learned trial judge, there is also a short signature that is seen below the designation "JMFC". This itself indicates that the entire order sheet of the aforesaid date including the typed portion is put up by the concerned ministerial staff, who has put his short signature below the designation "JMFC". No other inference can be drawn than this. Had the learned trial judge passed the order in his own hand writing, there would not have been occasion for the ministerial staff to affix his short signature below the signature of the learned trial judge. 2 1. In fact, the order sheet that is produced by the petitioner, from page-12 onwards shows that, except the signature of the learned Magistrate, there is no other signature found in the order portion in respect of the proceedings dated 18.7.2008 onwards. Therefore, there 14 is every force in the submission put forward by the learned senior counsel for the petitioner that the entire order that is passed on 24.6.2008 is the order that was written partially in ink and typed in respect of the 'cognizance taken and registering the case and issuing summonsU and only the signature of the learned Magistrate can be said to be that of the Magistrate.
22. In other words, there is no indication in the aforesaid proceedings dated 24.6.2008 that the trial court either perused the charge sheet and added to this is the further endorsement in the left side of the said proceedings, which reads as "No charge sheet copy & sign on C/S" also gives rise to draw the inference that, even the charge sheet copy was not placed along with the office note put up. Under these circumstances, can it be said that the order dated 24.6.2008 is a valid order indicating application of mind by the trial court. s q&t4n.
23. The position in law will have to be referred to at this juncture. This court, in the case of M/s Vijciya 15 Bank Vs. State by the Labour Enforcement Officer, reported in ILR 2000 Karnataka 4773, has held that, taking cognizance of an offence being a judicial act after application of mind, the Magistrate should not use "printed proforma" in which even the words "Cognizance is taken" are also printed or typed.
24. In another decision of this court in the case of Prashanth K.Thakur, LP.S. Vs. Raghunath Kodikal, reported in ILR 2001. Karnataka 1984, this court has held that, where the order of the Magistrate does not indicate as to in respect of which of the offences cognizance is taken, the order of Magistrate is liable to be set aside and the matter requires to be remanded.
25. In the case of Porvatogouda Vs. Reuanashiddayya, reported in ILR 2001 Karnataka 1607, this court has reiterated the aforesaid position in law viz., the requirement of specifically indicating as to what offences are made out and in respect of which of the particular offences, the accused needs to be proceeded against and it is only in respect of those offences that a case can be 16
- a .0 registered and process comes to be issued. This court, therefore, held that it would be necessary on the part of the learned Magistrate to mention the sections of the concerned statutes and in the case of I.P.C., the punishable sections in respect of which, according to the learned Magistrate, sufficient ground for proceeding has been made out and if the same are found to be absent, the impugned order is liable to be set aside.
26. In the case of G.A.Purushotham Vs. E.S.L Corporation, reported in ILR 1993 Karnataka 651, this court has taken the view that, without taking cognizance of the offence, the court will not get jurisdiction to proceed further in the matter goes to the root of the case and if the court had not taken cognizance of the offence or there is no indication that it had applied its mind before taking cognizance of the offence, this illegality goes to the root of the matter and cannot be regularized onthe ground that the accused had not challenged the proceedings on the point of cognizance.17
27. If the aforesaid decisions are applied to the case on hand, all the defects which have bee n noted in the aforesaid decisions are present in the cas e on hand. Not only there is no indication in the order of the trial court as to the offences in respect of which cog nizance is taken and as the offences in respect of which the accused are proceeded against and, therefore, the impugned order of the trial court cannot be sustained in law in the face of the aforesaid law laid down by this court. It is also not out of place to mention that the sections of the I.P.C. are mentioned only in the note that is hand written and it is also not clear as to whether the offences punishable are in respect of Sec tions 434 and 506 or 434 to 506 in view of the hyphen being used in between the two sections. This is also an indication of there being total lack of application of min d on the part of the learned Magistrate.
28. Coming to the decisions referred to by the learned senior counsel for R2, the law laid down by the Apex Court in all the decisions referred to by him are well l settled principles of law and the Apex Court has held that, where the order passed by the learned Magistra te reveals that the court has taken cognizance and directed issuance of summons, the order of the Magistrate takin g cognizance of the offence even without recording the statement of the complainant is proper. As far as the need for writing a long order is concerned, as right ly submitted by the learned senior counsel for R-2, the Apex Court has held that, while issuing process, the Magistrate need not pass a detailed order.
29. As far as the decision where the Magistrate has signed a rubber seal order is concerned i.e., 2005 AIR SCW 5162, the facts of the said case reveal that, after putting the signature on the rubber seal order, the Magistrate recorded the statement of the complain ant and thereafter issued process by recording a finding that there was a ground to proceed against the accused for the offence under Section 138 of the N.I. Act. No such order is passed in the instant case and as alrea dy mentioned by me, neither is there any observation that 19 there is ground to proceed against the accused nor is there any indication of the offence or offences in regard to which the accused are proceeded against.
30. In the light of the facts and circumstances of the present case, in my opinion, the decisions referred to by the learned senior counsel for R-2 cannot in any way remedy the defects noticed as above and the decisions, therefore, are inapplicable to the instant case.
31. For the aforesaid reasons, the order taking cognizance being not passed in accordance with law and in the light of the law laid down in this regard by the Apex Court and this court, the said order dated 24.6.2008 is liable to be quashed and the matter will have to be remanded to the trial court to consider afresh the whole issue in accordance with law.
32. Hence. I pass the following order:
The petition is allowed and the impugned order dated 24.6.2008 taking cognizance and directing issue of summons is quashed. The matter is remanded to the C) C) II, Q ) rt C) CD (I) C o c Ci2 CD
-e cc,) Ct, P £ Q--% C)