Sri B S Gudi vs Sri Anantha Gudi on 2 September, 2009

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Karnataka High Court

Sri B S Gudi vs Sri Anantha Gudi on 2 September, 2009

Bench: Huluvadi G.Ramesh

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IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT DI-IARWAD

DATED THIS THE 2ND DAY OF' SEPTEMBER, 

BEFORE

THE I--ION'BLE MRJUSTICE HULUVADI "

CRIMINAL PETITION   "

BETWEEN

SR1 B S GUDI
AGE:67 YEARS    
S/O LATE sR1N1vAsAcHAR'GU3j1., 

R /AT NO.3'70, 7TH CRoss3_,_ 2ND I»1fA1N  _
SRINIVASANAGAR '-  ' i   _ 
BANGALoRE+5_600:50" " ' V.  I PETITIONER

(BY SR1   ADAVQCAZTE}

SR1 ANAN'1fHA."GU'D1V"""

.. / O'~I.ATE RAMACHARYA GUDI
 V-.E_AG;t3D ABOUT SESYEARS
' v .. ADVQCA'I'~--E

E " _ "KoVNDA\7VAA_I;_:A GALL1

-  -HAVERI.  A
' ._.4REPRES.§r3NTED BY GPA I-IOLDFER
SR1"-EH RGUDI "

...l-RESPONDENT

 A (BYSR1 HEMANTH R CHANDANGOUDAR, ADV. FOR
'  GPA HOLDER)

V



THIS CRIMINAL PETITION Is FILED U/S482 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING THATTHIS
HONBLE COURT MAY BE PLEASED TO QUASH TE1E,'ENTI'I2E

PROCEEDINGS IN C.C.NO.I263/98 PENDING ON 

OF THE JMFC., I-IAVERI.

THIS PETITION COMING ON I90I€fHEAPI.NO:"'fI'IﬁIii'--DAY,

THE COURT MADE THE POLLO'_w_I_NO: '  "

    .

The petitioner has' -"f.o'r:--i.I'V_*giiashing of the proceedings file of the JMFC, Haveri,"

i'1"he'petitioneI*"iiVis said to have filed a Complaint ithe».A.Po1iCe""'at Haveri on 2.10.97 against the brothers and also his mother for the offeI1__Ce I.ir:c::iIi-*:*rii.SeCtions I43, I47, 448, 451, 504, 506 1»/w "SeCtioIL1_'v.1:49 of IPC. The police after investigation is said to I.rh.Vave..Afi1ed 'B' report, against Which, the petitioner is said have filed objection. Thereafter, the respondent ﬁled a W complaint in PCR No.29 / 98 against the petitioner for the offence under Section 211 of IPC and in the said complaint, the Magistrate has taken cognizancetspand issued process against the petitioners.

petition.

3. Heard.

4. The learneig' .;;pun'sei1"ioi'ﬁfih.e petit'i'o1'ier reiying upon the decision reporte-cg in"'hiR_.-i:i969ii__'SC 355 (STATE OF PUNJAB vs.'B:R:I*J IiALgE5i?iL'FA"a;fi--giieti that on the basis of the .i5y-iitfi-e'informant which is based on the sameiifactisaiiiegations on which the FIR is .-v..pregis»tt--:red; it is"-'notvopen for the Magistrate to take "._1cogn'izancei iofdthe offence said to have been committed undeirtiSect;io_n.5'ii21I of IPC, unless there is compliance ittndst ssstsn 195 (1)(b) of CI'.P.C. W, 4

5. Per contra relying upon the decision reported in AIR 1967 SC 528 (M.L. SETHI. vs. R.P.KAPUR AND ANOTHER), the counsel for the respondent submitted that in the said case, 'A' lodged report with police charging him with commission of certain cognizafb'1el'v. offences during pendency of investigationlby'ipQlilcve;',. filing complaint before Magistrat-eiiili agai.nst, «. '}'i:"'~..vifior commission of offence undleru Seictiong21li1,W""o'f'lll IPC,' Magistrate taking cognizance"of'cbrn'plaint o'I"""R", evidence showing that on date of Aooignizzaticelinofjudicial order was made respect of report lodged by 'A,' though isub'sequer'1t,'vto"~..,cognizance R was arrested and chargcsheetliwas'subniitted to Court and in this context, refei'ence to legality of cognizance, the Apex Court be judged in relation to date on which _ cognizan'ce~.vi?as actually taken and as on that date, there yvas,_.noi'proceeding pending in any court in which or in r'ela'tion to which offence under Section 211 was alleged to A have been committed, Magistrate was not barred from J?"

taking cognizance of complaint of 'R', by Section 195 (1)(b) of Cr.P.C and further it is stated that Section 19s,( it}(p) contemplated only the proceeding pending and not one in contemplation. _

6. What is being ini"the. fcase_t> supra, the decision of the Ap.ei{~.Co14rt in AIR 1967 so 528 has beenEfolloxrtiediranddistinguished and it is held that the of Cr.P.C.

can continue, is covered by Sectionaiéll" and a complaint is pendingviiiivghich by the informant on the :-

Sa1'I1€;'1aC_tS and' allega-tioin as were contained in the first V i:nforiri1ation_"'report registered. the case on hand, the petitioner is said to .,haxre' filed a complaint before the Haveri Police on

--' 2--:1'iOIl997' against the respondent, his brothers and his " "Vrniother for the offences mentioned above. The police after W 6 conducting investigation, filed 'B' report, against the said report, the petitioner filed objection. Thereaftegrgothe respondent filed a complaint in PCR No.29 the petitioner under Section 21 1 of PC and. has taken cognizance of the said pﬁencehll_and=.'is_sueci process against the petitioner," Thepetitionerihasjlgnow}. sought for lquashing the compl'ai:nt.uof coﬁgnizance and issue of process. gr;9ur;dl. the petitioner is that the complaint filedhdbyl the before the Trial Court is. lnotfinva17ntainabl_e there is no cause of action to respondent unless the complaint filed b;y'lt.hieil'p.etitioner against the respondent and his relatives isdisposed of in accordance with law and efhereliore, lhe cognizance taken by the illegal and also according to the petitioner in _respe'et of 'B' report filed against the petitioner, the 5.4"---;ieti.tVione:*""has filed protest petition by way of sworn ll_l_pestate'n1ent under Section 200 of Cr.P.C. on 17.2.1999.

--«l..:l*'urther, in his sworn statement the petitioner has stated J-

EY the details of offence committed by the respondent and his relatives. This was brought to the notice of the Trial Court and also that the complaint filed by the petitioner.._ is pending in the same court, but despite Court has observed that the complaint ofthe is Inaintainable, which is under ch'a11e'nge

8. It is noticed in theifirij .VLal'is"C.iase siapra that once a complaint filed in;foirt:ajant~ion which the FIR was registered isa.being.-proc'eeded_ Wi"'r_h,."'i»tiis not open for the Magiistrateiito of any offence alleged to have cornniitted '~..:Sec'tion 211 of the Penal code, unless' » there ..,is*proper compliance of procedure as p'reVsc'ribe'd tinder séiéiion 195 (1)03) of Cr.P.C. l appears that the learned Magistrate has tialfen cognizance against the petitioner on the basis of the filed by the respondent and has proceeded T "i..::iWithout proper compliance with Section 195(1)(b} of W. Cr.P.C. The argument of Efhe learned counsel for the petitioner is that steps ought to have been taken to register on the complaint in writing of that Court by such officer of the Court as that Court may authorise inryv-riting in this behalf, or of some other Court to is subordinate.

10. In the instant cas3'e;._the ilearned failed to follow the procedure ias.i1prescribedi Section 195 for prosecution fc.r'i:y"corlter_npt~--..of'"iayvfu1 authority of public servan*tis,, for.4offe'nces against public justice and for offences relating to dociua:1_fier1'ts given in evidence.

11. In the circumstances, since the procedure as .~-__per b.e.en followed, the impugned order of W,tala:ing_ "co'gni.3ar1ce and issue of process against the petitioner'.'.i'iis:pehding before the JMFC, Haveri in V C.C.No: i2;53/ 1998 is quashed.

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Karnataka High Court