Karnataka High Court
Sri.M.Veerappa Moily vs State Of Karnataka on 13 July, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.2237/2015
BETWEEN:
SRI M. VEERAPPA MOILY
S/O. LATE THAMMAIAH MOILY
AGED ABOUT 74 YEARS
R/AT KAUS THUBHA, R.T. NAGAR
BENGALURU - 560 032
... PETITIONER
(BY SRI B.V. ACHARYA SENIOR ADV. FOR
SRI S. KALYAN BASAVARAJ, ADV.)
AND:
1. STATE OF KARNATAKA
BY CHIKKABALLAPURA TOWN POLICE
CHIKKABALLAPURA DISTRICT - 562 101.
2. SRI S.S. ABID
TEAM LEADER
OFFICE OF THE DEPUTY DIRECTOR
CHIKKABALLAPURA DISTRICT
CHIKKABALLAPURA - 562 101.
... RESPONDENTS
(BY SRI B. VISWESWARAIAH, HCGP FOR R1;
R2 SERVED BUT UNREPRESENTED)
THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO
QUASH THE FINAL REPORT DATED 26.04.2014 SUBMITTED IN
C.C.NO.731/2014 PENDING DISPOSAL ON THE FILE OF THE
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PRL. CIVIL JUDGE (JR.DN.), JMFC AT CHIKKABALLAPURA FOR
THE OFFENCE PUNISHABLE UNDER S.188 OF IPC.
THIS CRL.P. HAVING BEEN RESERVED, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
Based on a complaint dated 11.04.2014 of the respondent No.2, FIR in Crime No.107/2014, for an offence under S.188 of IPC, was registered by the respondent No.1, against the petitioner. It was alleged that the petitioner being a candidate from Congress Party, on 11.04.2014, violated the election code of conduct. After conducting investigation, respondent No.1 filed the charge sheet on 26.04.2014. The JMFC., Chikkaballapur, by an order dated 14.08.2014, acting under S.190(1) of Cr.P.C., having taken cognizance of the offence under S.188 of IPC and registered C.C.No.731/2014 and issued summons to the petitioner, this petition was filed, to quash the said proceedings.
2. Sri B.V.Acharya, learned Senior Advocate, contended that in order to take cognizance for the offence, 3 under S.188 of IPC, the complaint ought to have been filed, either in writing or orally, by a public servant, before the jurisdictional Magistrate. In the present case, complaint dated 11.04.2014 vide Annexure-C having been filed before the respondent No.1, FIR in crime No.107/2014 was registered, investigation was conducted and the charge sheet having been filed, cognizance of the offence was taken. He contended that in view of the bar under S.195(1)(a)(i) of Cr.P.C., the Magistrate has committed illegality in taking the cognizance. He contended that the impugned order being illegal, the entire proceedings are liable to be quashed.
3. Sri B. Visweswaraiah, learned HCGP, fairly submitted that, in so far as the order taking cognizance for the offence under S.188 of IPC by the learned Magistrate cannot be sustained, as bar under S.195(1)(a)(i) is attracted. Learned HCGP submitted in the factual scenario and the record of the case and the settled position of law, the action of the respondents is indefensible. 4
4. Considered the contentions and perused the petition.
5. S.195 Cr.P.C., to the extent the same is relevant to the present case, reads as under:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance -
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or ***** ***** ***** Except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
6. S.195(1)(a)(i) of Cr.P.C., bars from taking of cognizance for the offence under Ss.172 to 188 (both inclusive), unless there is in writing, a complaint by the public servant concerned. The object of the provision is to provide for a particular procedure in the case of violation of lawful authority of the public servant. The Court cannot take cognizance in certain types of offences, as enumerated in S.195 Cr.P.C.
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7. In M.S.AHLAWAT Vs. STATE OF HARYANA AND ANOTHER, (2000) 1 SCC 278, Apex Court has held that the provisions of S.195 of Cr.P.C., are mandatory and no Court has jurisdiction to take cognizance of the offences mentioned therein, unless there is a complaint in writing, as required under that Section.
8. In SACHIDA NAND SINGH AND ANOTHER Vs. STATE OF BIHAR AND ANOTHER, 1998(2) SCC 493, Apex Court has held as follows:
"7......S.190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. S. 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint is to that extent curtailed. It is a well- recognized canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise (Abdul Waheed Khan Vs. Bhawani, AIR 1966 SC 1718)."
(emphasis supplied)
9. In DAULAT RAM Vs. STATE OF PUNJAB, AIR 1962 SC 1206, cognizance of the offence had been taken on police report by the Magistrate and the appellant therein, had been tried and convicted, though the public servant 6 concerned, the Tahsildar, had not filed any complaint. Considering the factual background and while allowing and setting aside the judgment of conviction and order of sentence passed on the appellant, it has been held as follows:
"4.....The cognizance of the case was therefore wrongly assumed by the Court without the complaint in writing of the public servant, namely, the Tehsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained."
(emphasis supplied)
10. S.2(d) of Cr.P.C., defines 'Complaint'. The said definition being relevant, is extracted herein below:
"2(d). "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
11. In the present case, the second respondent/public servant, having not lodged the complaint before the learned Magistrate and S.195 Cr.P.C., being mandatory and there being non compliance, the Magistrate has committed illegality in taking cognizance of the offence i.e., without the complaint being made to him 7 by the public servant concerned. The impugned order being without jurisdiction and the first part of the illustration No.6, in para 102, of the decision in STATE OF HARYANA Vs. BHAJAN LAL, 1992 SUPP (1) SCC 335, being applicable, the entire proceedings are liable to be quashed.
In the result, petition is allowed and the entire proceedings in C.C.No.731/2014 on the file of the Prl. Civil Judge and JMFC., Chikkaballapur is quashed.
Sd/-
JUDGE sac*