Karnataka High Court
V.S. Joshi And Anr. vs N.G. Bhat Chitrigi And Anr. on 6 December, 2005
Equivalent citations: 2006CRILJ1566, ILR2006KAR735, 2006(1)KARLJ495
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. Petitioners being the accused in Private Complaint No. 31/2003, have sought for quashing the proceedings pending on the file of I Addl. J.M.F.C, Sirsi.
2. The Learned Magistrate has issued process against the petitioners for the offences punishable under Sections 323, 504, 506 r/w. Section 34 of IPC. Respondent No. 1 is the complainant who is advocate by profession. Accused are officials of revenue department. The complaint and the sworn statement of the complainant prima facie disclose that he went to the office of the accused on 20.1.2003 at 5.00 p.m. to enquire about the supply of certified copy of record of rights of the property pertaining to his client. The accused, instead of reasonably and properly responding to the complainant about the supply of the copies of fresh record of rights, started abusing the complainant. It is alleged that the accused has uttered the following words against the complainant.
Thereafter, the complainant was pulled out of the office by the accused. Based on the said complaint and the sworn statement, the Trial Court has issued process against the petitioners for the aforesaid offences.
3. Learned Counsel for the petitioners submits that as the petitioners are public servants, the complainant should have obtained sanction prior to lodging of the complaint, as required under Section 197 of Cr.P.C. Secondly, he submits that as the cognizance is taken after recording the sworn statements, the proceedings vitiate.
4. The aforementioned utterances of the accused in public not only tarnishes the entire class of advocates, but also the Civil Judge concerned. The act of making such utterances will not fall within the purview of the official duty of public servants. It is not possible to accept the contention of Learned Counsel for the petitioners that the aforesaid utterances by the petitioners are connected with the discharge of the petitioners' official duty. Calling the respondent-Advocate as mischievous and causing aspersions on the Judicial Officers cannot even remotely be said to be connected with the discharged of official duty of the petitioners. In this case, there is no reasonable connection between the act in question and the discharge of official duty. Filthy abuses allegedly made by the petitioners, if proved, would amount to offence. Hence, such act of the petitioners can never be an official duty. Hence, the complainant need not obtain sanction by the concerned authority to prosecute the accused, in such cases.
5. The operative portion after order of Court below reads thus:
ORDER "The cognizance is taken against the Accused Nos. 1 and 2 for the offences punishable under Sections. 323, 504, 506 r/w Section 34 of IPC. The officials are hereby directed to register the case as C.C. in Register No. III against the accused for the offences punishable under Sections 323, 504, 506 r/w Section 34 of IPC and to issue process to the accused for the said offences, if P.F. paid and copies furnished."
It is also not in dispute that before passing the said order, the sworn statements were recorded. Based on this material, Sri. CM. Jadhav, Learned Counsel appearing for the petitioners submits that cognizance is taken after recording of sworn statements and that therefore, the order of issuing of process is liable to be quashed, inasmuch as, the procedure adopted by the Learned Magistrate is not in accordance with law.
6. It is by now well settled that sworn statements are to be recorded after taking cognizance.
7. Even though the expression "take cognizance" is not defined, it is well settled by now that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence, decides to initiate the proceedings against the alleged offender, he is said to have taken cognizance f the offences. Mere application of mind does not amount to taking of cognizance, unless the Magistrate does so for proceeding under Sections 200 and 204 of Code of Criminal Procedure.
8. In this case, the Magistrate after taking notice of the accusations made in the complaint, has proceeded to record the sworn statements of the complainant and the witnesses. Thus, it is clear that the Magistrate has taken cognizance of the offences to proceed under Section 200 and 204 of Cr.P.C. even prior to recording the sworn statements.
9. The Magistrate need not specifically state in his order that he has taken cognizance of the offences. Taking of cognizance by the Magistrate can be inferred from the facts and other material on record. The very fact that the Court below has decided to record the sworn statements after perusing the complaint itself would mean that Magistrate has applied his mind and has taken cognizance of the offences at the initial stage itself. Hence, it can be safely said that the Magistrate has applied his mind and thereafter, recorded the sworn statements of the witnesses. Thus, the subsequent observation of the Learned Magistrate at the time of passing the aforesaid order that the cognizance taken becomes redundant and shall have to ignored. Even otherwise, it may amount to taking cognizance or applying mind to the facts of the case for the second time, at the time of passing of impugned order and the same is not barred. Hence the same cannot be said to be illegal. Moreover, the order of issuing process cannot be set aside merely on such hypertechnical ground. Added to it, no prejudice is caused to the petitioners by non mentioning in the order sheet while proceedng to record sworn statements of the witnesses, that the cognizance is taken. It is not a mandate of law that the Magistrate should mention that he has taken cognizance of the offence, before recording sworn statement. In view of the same, I do not find any reason to interfere in the order passed by the Court below.
Criminal petition is accordingly dismissed.
However, petitioners are at liberty to argue for their discharge before the Court below if they so choose. If such arguments are advanced, the trial Court shall consider the same in accordance with law without being influenced by any of the observations made during the course of this order.