Karnataka High Court
Dr B K Shivaprasad Rai Mbbs Ms vs Commandant Balasubramanian Mohan on 10 December, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
ADV.) IN T HE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10'?" DAY OF DECEMBER 2010 BEFORE', THE HONBLE MR.JUS'I'ICE JAWAD RA1««1~1Mi O' CRIMINAL PETITION NO.2145_/.2IjQ;9~' 1%]: O BETWEEN 1 DR B K SHIVAPRASAD MB13s,'Ms * s/O. AG-ED ABOUT 46 YEARS ' - GENERAL SURGEON, "-- ._ PRACTICING MEDICAL PROFESSION AT ATHENEHOSE?I_T;'XL --_ . " - FALNIR ROAD . MANGALORE ' 2 RV.S.OVS}VIE2TTIA'N _ 52/0.B.PS?Tin'tTHA1*\IDT A AGED ABOUM8 'YE'.ARf3 MANA(3ING'--DiRECTOR _ATHE1'€A '1-»1OsP1'TAL~~-- " ..§ FALNIR ROAD ' ..... " ' PETITIONERS AND" } OOMMAAJDANT BALASUBRAMANIAN MOHAN A . V " S./O. BALASUBRAMANIAN A AGE!) ABOUT 49 YEARS =R'E-SIADING AT FLAT NO302 MANASA APARTMENTS A ....LOBO LANE, KADRE MAN GALO RE ... RESPONDENT
[BY SR1: R B DESHPANIDE, ADV.) 2 :'~''*\' 2 ,» S/I CRLP FILED U/S482 CR}-'.C BY THE ADVOCATE F OR THE PETITIONER PRAYING '1'?-IA'? TI--HS H.QN'Y_i.LE COURT MAY BE IDLEASED TO QUASH 'E'i--iEiCT*$1'FIRi3i PROCEEDINGS IN C.C.NO.4855/O8 REG-iSTE2R'§:1D"« PURSUANT TO 'I'I~-II; COGNIZANCE TAKEN IN I-'=.§C.NOV.'24]'Q8'R ' S FILED BY THE RESPONDENT BEFORE TI£.E1,_jCoLIRT 014*"
me JMFC II COURT. M'Ai\IGA1,0RE"'FOR'THE O.i+'FEN(;',ES.. P/U/S 120-B,455,469.R/W SECTION 34 ::OF_ I'¥?C'~._AND_A1,_LA' PROCEEDINGS PURSUANT 'mERETo.1._ "
TI-{IS CRL.P. COMING oN"'RoR Ai3IyIISSIioN"{T;II--IS DAY, = "
THE COURT MADE THE FOLLOW_Ii\EG:
onnegir This petition of Cr.P.C is directed agaIrIs't izthe by the Jurisdietiona-ii' No.24 / 2008 taking cognizance of'Iri¢oo£fen¢es 'punishable under Sections 465, 46ée«I.I&II Section 34 of IPC. The ha\?evv--.e.a1'led into question. the order by .V::'J"urisdictiona1 Magistrate has taken cognizance:-__and issued process against them. ..2;g_ 'Heard. The learned counsel for the " «L.» " petitior1e1'S. Relevant "facts are: The respondent. herein presented petition under Section 200 of Cr.P.C. registered P.C.R. "I 41/ _"'T'""\€'a :5 No.24/2008 before the JMFC 11 Court, l\/Iangalore alleging that the 'petitioner No.1 herein, who is the Medical Officer and petitioner No.2, custodian of the records of Athena Mangalore forged and fabricatedM.,certai_-ii 'record's. so as "' to justify that the person by examined and treated in the°'h._ospital_, where'as"'he"lwas"' 0 attending examination on" that ground it was alleged fabricated and forged the §d'ociinier_1ts. in evidence in judicial Jurisdictional Magistrate received the~~..l_conip:'laint on 19.03.2008 and took » c'o»gnizVan(:e%Vl"and directed the case to be registered. 'i7h'ereafte1;f---, the case was adjourned to certain dates and ulti1nat,e1y on 05.07.2008 the learned Magistrate records "Complainant present, sworn statement of complainant recorded. Further sworn staternent by 02.08.2008". On. 02.08.2008, the learned l.\/Eagistrate records "complainant: present further sworn statenient by 18.10.2008". In this manner on O8.l2.20"O§E5';.cl_lt~he case was adjourned on which date the j1gii=isd:ir:tri'oln'alsA Magistrate having completed vI7'C'Cf01.'.(l'i1'1.gMV0vflfu"VV statement, took cognizance of the loffencesp11n.is'h'ab'le._ under Sections 485, 469V andl issued process to surn.rnonttl'1"cs.:'accused to"ar"1swer the charge.
4. had to enter appeararicetfonlli:f13f)."l--2';--i2.0O8','~"t5ut the accused No.3 remained 'abvslctfrtg Arrjapplication under Section 205, Cr.P.C." for filed. The petitioner Nos.1 and _ 2, who" are dactiugsed 1 and 3 in the private conélplaint hlaveilraised question regarding legality of aetiori of the learned Jurisdictional Magistrate. In 1;h§e'ir they contend that the jurisdictional 'rn'a;gistI'a.t€: was not right in taking cognizance under section' of Cr.P.C. The learned counsel contends that... the mode and nlanner in which the sworn 0% statement. has to be recorded is spelled out under Section 200 of Cr.P.C. It is urged that the Very first.
line of the sworn statement. shows exami11at.i_o.n--~in-- chief by APP. On this, it is urged that. the A has been examined in chief bywan a_dvo't':atVe V' APP, which is not perrnissi"oV1e7..'_'di"d substantiate this oont.entiVo11,e:'g:bgIg reijring' "decision i"
in the case of NAGANAG'O*i.?D}XsA__VEERANPiGOUDA PAIL AND ANOTHER' H. KULKARNE AND oTHEi2sle, Vifepoifteeiin '}V_L'i'%';j_V~1VS39"f1' 2091. My attention paragraphs 7', 8 and 9 of the V 'V5; Thegseeond ground urged is that even if it »A ;D€'«Ji)"CfIf}iSSib1€, there is iliegality in the order H order impugned suffers from another infirmity i.e., learned Magistrate has not noticed A nrestrieti<)n impianted by Section i95 of Cr.'P.C. in l}.'c1ki}f1g cognizance.
ES. The records summoned reveal that t.he learned 1\/Iagistrate on receipt. of the private COI1a"pl_aint took cognizance under Section 200 of the case was posted to reeordth'e»-sworn Vsi:'atjerne_n,t of V' the complainant. 'From the Complaint i.e., 19.o3.2oo8.irli1ii o5.o:?.p2oiop8. inotmgir shows only presenee..'_ of _«"eo1*'n-p4lai1i.._ant and" not any advocate representing is highlighted by the respondentw eomp1ainanti:._ltoVp leertified copy of the sworn statehi-'&:n_t"filed,l_by_ the petitioners is misleading. He subijnits th_at.jjthe..A:pri~nted format retained in the eomputerxof» the Court reads "Examination in is in all the criminal cases, the in chief is done by APP. He thus submits "by"'inadvertseiiee the prepared format has not been "eo'1*reetedg-: this has resulted in petitioners construing that the Complainant was subjected to examination in ehief APP. He further submits that the APP means ' \--.
. 5 = "Q9 "
'xx Assistant' Public Prosec,t1ior atizached to the Court: and the petit'.ioners have failed to point out that by the initials 'APP' appeared for the .
7. Keeping in view thc'e""'above. faets§._ I have perused the order sheet of 2 sufficient substance iii'gK"ithe eont.entio:ds of respondents counseiand iriateriai tovnodte that on 05.07.2008, the learned recorded only the sworn pofthe.:cornplaina'nt and even the first note i%;:1'de'rV>'fthe cornpiaint shows it was presented .:cJon1p1aina'nt in person. Had been _ti'1e':-inivtiais of the advocate, that would .. i."ound p1acef"'IE3esides there is note that Sri D.S. time. it is not clearly evident whether stich advocate wanted to represent the it eeorripiainant. Therefore, i am satisfied that the sworn '"V--st'aternent has been recorded only by the Magistrate "and there is no reason to disbeiieve that the sworn statement was recorded by the learned Magistrate :3 E\ E' L;
.1-sear/' x/ himself and complainant was not "examined in chief by APP", as it: appears in the typed format..
8. Section 200 of Cr.P.C., to has been made, envisages the L.eajrri--ed4,_'Magistrate taking cognizance of an<of.f__enee7.on coznplgaint _sha1]_F, examine upon oath and the witnesses present of such exarninationu and shall be signed by Vand«'V_tlie:liitritnesses, and also by 'lit""'we"'jVaccept the petitioners' contention has been examined in chief Vl:1is.d.eouns'el, it will only be irregular and Axiotaiilegal, Ifvvlllthere is irregularity, provisions of 465 of Cr.P.C. are answers to this qu«esti_on-,3 Section 460 of Cr.P.C. refers to irregularities the" b1'oceedi1igs which do not Vitiate proceedings. such irreguiariiiy is taking cognizance referred to "in elause [a) of Section 190 of Cr.P.C. In the instant case, since cognizance has been taken on the basis of "LO accused was sought to be prosecuted for the offences punishabie under Sections 465, 469 and with section 84 of UPC for commission i. as referred to under Section if 195 of Cr.P.C. does not to above has taken note of'-vi:h';.5 circun1sta_nc'e."'I'n'fact, V' the decision spe11s.'::o1,it Bench in similar facts and though an advocate in chief, it irreguiariityjvvhichf" the basis of the there is no material to show was examined in chief by thefigadvocateg" he was examined by the learned ' required under Section 200 of Cr.P.C., "there is no heed to set aside the order or remand for fresh recording of the sworn statement.
9. As the offences are triable by the learned it ___i'nagistrat,e. the accused wiil have to be given a fair J' W Mi' g-.,/ 11 opportunity to resist; the same before franling of cha_rges permissible under Section 245 of
10. All contentions are saved cZa1«'t:.t urge at the stage of seeking petition is disposed off.
DM