Karnataka High Court
Venkatesh Narayanappa And Others vs Sri Vittal on 6 August, 1991
Equivalent citations: 1992CRILJ586, ILR1991KAR4061, 1991(3)KARLJ485
ORDER
1. This petition is directed against the order passed by the Additional J.M.F.C., Sagar, in P.C.R. No. 25 of 1988 (C.C. No. 1084 of 1989) dated 20-7-1989 taking cognizance of the offence punishable under Sections 498A and 342 read with Section 34, I.P.C. against Accused 1, 2, 3 and 6 and directing issue of summons to the said accused on the basis of the complaint that was lodged by the respondent herein on 18-2-1988 against the petitioners and others.
2. The main ground of attack of the petitioners herein to the order directing issue of summons to them is as follows :
On the basis of the complaint received on 18-2-1988 the learned Magistrate instead of taking cognizance of the offences, he referred the same to the police under Section 156(3), Cr.P.C. calling for report. Pursuant to the said direction the police made investigation and submitted his report which was received by the Court on 3-11-198. The case was adjourned thereafter to different dates and finally to 20-7-1989 and in the absence of any protest by the complainant the learned Magistrate took cognizance of the offences and recorded sworn statement of one Chandrakala, W/o Venkatesh and ordered issue of summons which procedure, according to Sri Gachchinamath, learned counsel for the petitioner, is quite incorrect. According to him, once the 'B' Report is accepted, it is for the complainant to challenge it by way of protest. As the complainant did not do the same, the learned Magistrate should have dropped the proceedings instead of taking cognizance and then issuing summons to the petitioners herein. In support of his contention, he relied upon a decision of this Court rendered in Basappa v. State of Karnataka, ILR 1987 Kar 994 : (1988 Cri LJ 719) wherein it is held that, when B report is submitted, 3 courses are open to the learned Magistrate, viz., (i) either to accept the B Report and drop all further action; or (ii) on consideration of the B Report direct the police to make further investigation; or (iii) take cognizance of the offence, if any, disclosed on the very report. In the said decision it is further held that where the Magistrate accepts B report the only course left open to the learned Magistrate is to drop all further action. Apart from this legal contention, the learned counsel for the petitioners submits that even on perusal of the complaint and the sworn statements of the complainant and the witness Chandrakala, there is no sufficient ground to order issue of summons. Even the averments made in the complaint are not sufficient to take cognizance. Since cognizance was taken on the basis of the material which are unconvincing in nature, issuing summons itself is quite arbitrary and, therefore, the same deserves to be quashed by this Court in exercise of the power conferred under Section 482, Cr.P.C. For these reasons, Sri Gachchinamath submits that the petition be allowed and the proceedings be quashed.
3. As an answer to the contentions raised by the learned counsel for the petitioners, Sri Jayakumar S. Patil, the learned counsel for the respondent, submits that there is no infirmity in the order passed by the learned Magistrate on 20-7-1989 taking cognizance of the offences and directing issue of summons to the petitioners. According to him, the decision relied upon by the learned counsel for the petitioners has no application to the case on hand, because, after submitting the B Report by the police, the learned Magistrate neither accepted it nor rejected it. Such being the case, the only inference is that the learned Magistrate simply postponed taking cognizance of the offences till 20-7-1989 on which date he took cognizance. According to him, there was no necessity for the respondent to make a protest to the B report as required under Section 156(3), Cr.P.C. The question of making a protest or filing a second complaint by the respondent would arise, if the Magistrate accepts the said B Report. For these reasons Sri Patil submits that the petition be dismissed.
4. In order to appreciate the correctness or otherwise of the rival contentions, it is proper to examine the scope of Sections 200 to 202, 204 and 482, Cr.P.C. Section 200, Cr.P.C. reads as under :
"200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be signed by the complainant and the witnesses, and also by the Magistrate :
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 :
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
Section 201 reads as follows :
"201. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, -
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court."
Section 202 reads thus :
"202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under S. 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction for investigation shall be made, -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under S. 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witness and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer incharge of a police station except the power to arrest without warrant."
Section 204, Cr.P.C. reads as follows :
"204(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be. -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he think fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of S. 87."
Section 482, Cr.P.C. reads as under :
"482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
Section 200, Cr.P.C. speaks about the examination of the complainant. Section 201 deals with the procedure by Magistrate not competent to take cognizance of the case which we are not concerned with. In this case we are concerned with Section 202 which deals with postponement of issue of process. Reading of S. 202 makes it clear that the Magistrate on receipt of a complaint of an offence of which he has to take cognizance, he may postpone issue of process against the accused, and then he can enquire into the case or direct a police officer to investigate into the case in order to arrive at a conclusion that sufficient ground to proceed with is made out or not. If no sufficient ground is made out, under S. 203, Cr.P.C. the learned Magistrate gets jurisdiction to dismiss the said complaint. However, under S. 204, Cr.P.C. the Magistrate gets power to issue process to the accused as is clear from the section extracted above. Thus, once cognizance of the offence is taken after forming an opinion by the learned Magistrate that sufficient ground is made out to proceed with the case, the Magistrate can make use of the procedure contemplated under S. 200, Cr.P.C. to record the sworn statement of the complainant and the witness, etc. and then order issue of process as provided under S. 204, Cr.P.C. which is extracted above. Section 482, Cr.P.C. speaks about the inherent power of the High Court. Reading of Section 482 makes it clear that, whenever it comes to the notice of the High Court that (i) in order to give effect to any order under the Code, (ii) in order to prevent abuse of the process of any Court or (iii) in order to secure ends of justice, High Court gets jurisdiction to exercise its inherent powers.
5. Having gone through the scope of Sections 200 to 204 and 482, Cr.P.C., now we have to see whether the summons issued by the learned Magistrate on the basis of the complaint lodged after recording the sworn statement of the complainant and one witness is in conformity with the provisions of Ss. 200 to 204, Cr.P.C. This Court has also to see whether once a matter is referred to the police for investigation and report and after enquiry and investigation if B report is submitted by the police, is it mandatory on the part of the Court to accept the same or not or can it keep aside the same and proceed further on the basis of the original complaint or not ? Strict scrutiny of Sections 200 and 202, Cr.P.C. makes it clear that before ordering issue of summons the Court can enquire whether sufficient ground has been made out in the complaint to take cognizance. This enquiry can be made either by the court itself or direct the police or any other person as he thinks fit to make investigation and submit a report. Thus it cannot be said that it is mandatory on the part of the learned Magistrate to accept such a report submitted by police. It is for the Court either to accept it or to reject it submitted by any one of the agencies the Court had directed. The purpose behind directing the police or any other person to enquire into the matter and submit his report is a kind of aid for speedy disposal of the case. In the case of hand, as directed by the learned Magistrate the report was submitted by the police on 1-12-1988. But, the learned Magistrate did not choose either to accept it or reject it. If the report had been accepted by the learned Magistrate, the petitioners would have been justified in contending that the learned Magistrate was not right in taking cognizance in the absence of protest by the respondent. If the report had been rejected, the result would have been that the complaint lodged by complainant was to be accepted and cognizance was to be taken and then to be proceeded with the case. The silence on the part of the Magistrate in not passing any order on the B report submitted by the police on 1-12-1988 till 20-7-1989 and then taking cognizance followed by recording sworn statement of the complainant and one witness present and ordering issue of summons for the offences referred above implies that the report submitted by the police was intended to be accepted and acted upon. When that is so, it cannot be said that taking cognizance on the private complaint lodged by the respondent is an incorrect one.
6. Under similar circumstances, in Ramakrishna alias Babu Bangari Bilgikar v. Patil M. K., 1977 (1) Kar LJ 335 : (1978 Cri LJ (NOC) 45), this Court dealing whether acceptance of B report once direction is given to the police is mandatory or otherwise held as follows :
"The Magistrate was not justified in giving too much weight to the report of the S.P. and readily accepting and acting on it, in the face of challenge taken and the circumstances of the case.
Further this Court has held thus :
"It is well settled that the learned Magistrate is not bound to accept the result of the enquiry or investigation and he must apply his judicial mind to the material on which he has to form his judgment and in arriving at his judgment, he is not fettered in any way except by judicial considerations."
In my view that is what the learned Magistrate did in the case on hand in not accepting the report till 20-7-1989 and in taking cognizance by exercising his judicial approach on the material made available.
7. The next point for consideration is whether the order issuing summons against the petitioners for their attendance before the Court is justifiable or an arbitrary one. No doubt, Sri Gachchinamath, learned counsel for the petitioners, argued that perusal of the complaint makes it clear that no prima facie case has been made out to any one of the petitioners to initiate proceedings. In the absence of such a prima facie case, the learned Magistrate was not justified in issuing summons to the petitioners. As explained above, S. 204, Cr.P.C. deals with issuing of process. It starts with the words "In the opinion of a Magistrate .........". Scope of Section 202, Cr.P.C. is interpreted by this Court and also by the Supreme Court in a number of cases that the learned Magistrate is not expected to weigh the entire evidence. But what he has to see when process has been issued has been clearly explained by the Supreme Court in . This Court in Bhoopal Rayappa Patil v. Mradevi, 1978 (1) Kar LJ 432 : (1978 Cri LJ (NOC) 141), held that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and that he is only to prima facie satisfy himself whether there are sufficient grounds for proceeding against the accused and it is not the province of the Magistrate at that stage to enter into a detailed discussion of the merits or demerits of the case. After receipt of the B report the learned Magistrate recorded the sworn statement of the complainant and one witness present. On the basis of the said material he formed an opinion that there is material to make out a prima facie case against Accused 1, 2, 3, and 6 for the offences punishable under Ss. 498A, 342 read with Section 34, I.P.C. The said opinion came to be formed while exercising his judicial power. When such an opinion had been formed on the material made available for issuing summons, it is not proper for this Court to constitute its view exercising the power under S.482, Cr.P.C. and quash the proceedings. It is also not proper for this Court to interfere with the order of the learned Magistrate taking cognizance and ordering issue of summons to the petitioners when it is not shown that there is manifest illegality in the order in question or there is miscarriage of justice. Time and again it is said that the inherent powers of this Court can be used only when there is abuse of the process of the Court or such power can be used to secure the ends of justice or to give effect to any order passed by Court and not otherwise. Hence, in my view, this is not a fit case to interfere with the order of the learned Magistrate by exercising the inherent powers under S. 482, Cr.P.C. and to quash the proceedings in P.C.R. No. 25 of 1988 (C.C. No. 1084 of 1989).
8. Accordingly, this petition is dismissed. All other contentions are left open.
9. However, any observation made in this order shall not be mistaken that it touches the merits of the case which has to be dealt with only after regular evidence is led in.
10. Petition dismissed.