Karnataka High Court
Prakash S/O Siddappa Vardatti vs The State Of Karnataka on 21 March, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 21ST DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.102017 OF 2017
BETWEEN
1. PRAKASH S/O SIDDAPPA VADRATTI
AGE:22 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
2. ALLAPPA S/O SIDDAPPA VADRATTI
AGE:20 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
3. ASHOK S/O SIDDAPPA VADRATTI
AGE:18 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
4. SIDDAPPA S/O VITTAL VADRATTI
AGE:45 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
5. PUNDALIK S/O VITTAL VADRATTI
AGE:44 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
6. BASAPPA S/O PUNDALIK VADRATTI
AGE:20 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
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7. VITTAL S/O BHIMAPPA VADRATTI
AGE:20 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
8. UDDAPPA S/O VITTTAL VADRATTI
AGE:55 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
9. BIRAPPA S/O UDDAPPA VADRATTI
AGE:24 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
10. SHIVANAND S/O BHIMAPPA VADRATTI
AGE:25 YEARS, OCC:COOLIE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
11. BHIMAPPA S/O VITTAL VADRATTI
AGE:45 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
12. KAREPPA S/O UDDAPPA VADRATTI
AGE:21 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
13. MARUTI S/O PUNDALIK VADRATTI
AGE:24 YEARS, OCC:AGRICULTURE
R/O KALATIPPI TQ:JAMKHANDI
DIST:BAGALKOT
... PETITIONERS
(BY SRI. PRASHANT S. KADADEVAR, ADV.)
AND
THE STATE OF KARNATAKA
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
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DHARWAD BENCH, IN TERADAL PS
... RESPONDENT
(BY SRI.PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH
THE IMPUGNED ORDER DATED 12.05.2017 PASSED BY THE
JMFC, BANAHATTI IN C.C. NO.261 OF 2016 AND IMPUGNED
ORDER DATED 25.07.2017 ORDER OF TAKING COGNIZANCE
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 114, 143,
147, 148, 323, 324, 341, 354, 504, 506, 307 READ WITH 149
OF IPC IN C.C. NO.261 OF 2016 AND TO QUASH THE IMPUGNED
ORDER DATED 12.06.2017 PASSED BY THE DISTRICT AND
SESSIONS JUDGE, BAGALKOT, ORDER OF TAKING
COGNIZANCE FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 323, 324, 341, 307, 114, 354, 504,
307 READ WITH 149 OF IPC IN SC NO.67 OF 2017 AND QUASH
THE IMPUGNED ORDER DATED 18.07.2017 PASSED BY THE I
ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOT TO SIT AT
JAMAKHANDI IN SC NO.67 OF 2017.
THIS CRIMINAL PETITION COMING ON FOR HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition is filed under Section 482 of Cr.P.C. seeking to quash the impugned order dated 12.05.2017 passed by the JMFC, Banahatti in C.C. No.261/2016 and the order dated 25.07.2017 of taking cognizance for the offences punishable under Sections 114, 143, 147, 148, 323, 324, 341, 354, 504, 506 read with Section 149 of IPC and also to quash the impugned order dated 12.06.2017 passed by the District and Sessions Judge, Bagalkot taking cognizance of the offences punishable under Sections 143, 147, 148, 323, 324, 341, 307, 114, 354, 504, 506 read with Section 149 of IPC.
2. The grievance of the petitioners is that a charge sheet was filed against the petitioners herein alleging commission of offences punishable under Sections 114, 143, 147, 148, 323, 324, 341, 354, 504, 506 read with Section 149 of IPC and also Sections 307 and of IPC. However, the learned Magistrate by its order dated 18.05.2016 took cognizance of all the above offences except Sections 307 and 114 of IPC. Subsequently, by :5: order dated 12.05.2017, the learned Magistrate committed the case to the Court of Sessions.
3. On receiving the papers, the learned Sessions Judge having found that before committing the case to the Sessions Court, the learned Magistrate had not taken cognizance of the offence under Section 307 of IPC, passed the following order on 18.07.2017:
"Case called, Perused the order sheet of the committal Court on 04.05.2016 the P.O is taken a cognizance only for the offence punishable under Sections 114, 143, 148, 323, 324, 341, 354, 504, 506, 149 of IPC. But as per the charge sheet, the Terdal Police have filed a charge sheet against accused No.1 to 13 punishable under Sections 114, 143, 148, 323, 307, 324, 341, 354, 504, 506, 149 of IPC.
As per charge sheet the Terdal Police have inserted under Section 307 of IPC and deleted the offence under Section 326 of IPC. But the Committal Court have not taken the cognizance against A1 to 13 for offence punishable under Section 307 of IPC. It shows the negligence of the Presiding Officer who is committed the case to Sessions Court.:6:
Any how return the entire file to JMFC, Banahatti to take cognizance under Section 307 of IPC against A1 to 13 along with other offences and order to re-committal to the Sessions Court."
4. The contention of the learned counsel for the petitioners is that the learned Magistrate having taken cognizance once is debarred from taking cognizance for the second time and further, the learned Magistrate having initially not taken cognizance for the offence under Section 307 of IPC, it could not have committed the matter to the Sessions Court.
5. Both the above contentions, in my view, do not affect the cognizance taken by the learned Magistrate. Undisputedly, the charge sheet was filed for all the above offences including Section 307 of IPC. However, the learned Magistrate failed to take cognizance in respect of offence under Section 307 of IPC but while committing the matter to the Court of Sessions, he inserted the said provision in the committal order. The said error having been noticed by the learned Sessions Judge, he sent back :7: the papers to the learned Magistrate to rectify the error so as to take cognizance for the offence punishable under Section 307 of IPC and thereafter, to proceed in the matter. Accordingly, after receiving the papers, by order dated 25.07.2017, the learned Magistrate took cognizance of the said offence. The order reads as under:
"Perused the office notice and letter received from the Hon'ble Ist Addl. District and Sessions Judge, Bagalkot to sit at Jamakhandi. It is noticed that the investigating Officer after completion of investigation filed final report against accused persons for the offence punishable under Sections 114, 143, 147, 148, 323, 324, 341, 354, 504, 506, 307 read with Section 149 of IPC. At the time of taking cognizance my predecessor has taken cognizance for the offence punishable under Sections 114, 143, 147, 148, 323, 324, 341, 354, 504, 506 read with Section 149 of IPC. It appears that due to oversight cognizance of the offence punishable under Section 307 of IPC is not taken.
The material allegation made in the statement of witnesses reveals that there are sufficient material to take cognizance for the :8: offence punishable under Section 307 of IPC. Therefore, in view of return of case file and order of Hon'ble I Addl. District and Sessions Court, cognizance for the offence punishable under Sections 114, 143, 147, 148, 323, 324, 341, 354, 504, 506, 307 read with Section 149 of IPC is taken.
Office is directed to make rectification in register No.III and insert Sec.307 of IPC and resubmit the entire case file to the Hon'bel I Addl. District and Sessions Court, Bagalkot to sit at Jamakhandi."
6. The above order indicates that the learned Magistrate took cognizance of the offence under Section 307 for the first time on 25.07.2017 after the papers were returned by the Sessions Judge. Therefore, the contention of the petitioners that the learned Magistrate has taken cognizance of the offence twice is factually incorrect. This is not a case of taking cognizance for the second time, as argued by the learned counsel for the petitioners.
7. The learned counsel has placed reliance on the decision of this Court in Deena Johnson vs. State of :9: Karnataka, LAWS (KAR) 2015 10 256 with reference to para 7, wherein it is held as under:
"7. The learned District Judge though took note of the statutory requirement for taking cognizance in the matter, appears to have lost sight of the fact that once cognizance taken is held illegal, there cannot be further continuation of the criminal proceedings. There is no provision under the Criminal Procedure Code, 1973, to take cognizance for the second time on the same set of facts. The cognizance taken and the subsequent proceedings are perse illegal and it is abuse of the process of law to allow the proceedings to continue. Liberty is reserved to the prosecution to file fresh charge sheet if they are so advised.
8. In the said case, the cognizance taken by the Magistrate was already held illegal and therefore, it was held that the learned Magistrate had no jurisdiction to take cognizance of the very same offence for the second time.
In the instant case, the factual matrix is totally different.
No doubt it is true that at the first instance, the learned Magistrate committed the case to the Court of Sessions : 10 : without taking cognizance, but the said lapse does not vitiate the cognizance taken by him after the papers were returned for the said purpose.
9. What is taking cognizance is not defined in the Criminal Procedure Code. But it is now well settled that any Magistrate who takes cognizance of any offence must have applied his mind to the facts of the case for the purpose of proceeding in a particular way. Section 209 of the Code provides for committal of the case if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions. The cognizance taken by the Magistrate under Section 209 is different from the cognizance taken by the Magistrate under Section 190(1)(a) of the Code or the cognizance of the offence taken by the Sessions Court before commencing the trial after committal.
10. In R.R.Chari vs. The State of Uttar Pradesh, AIR (38) 1951 SC 207, the Hon'ble Supreme Court relying on the dicta on Gopal Marwari and others : 11 : vs. Emperor, AIR (30) 1943 Pat. 245 has observed that:
"the word 'cognizance' was used in the Code to indicate the point when the Mag. or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings".
11. Taking cognizance is a judicial function and therefore, the duty cast on the Magistrate is required to be performed in a judicial manner. It is held by the Hon'ble Supreme Court in State of Uttara Pradesh vs. Lakshmi Brahman and another, (1983) 2 SCC 372 that:
"the making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment."
12. In the instant case, as already stated above, the learned Magistrate did not take cognizance of the offence under Section 307 of IPC at the first instance. It is only after the papers were sent back to him by the learned District Judge he took cognizance of the said offence. : 12 : Therefore, I do not find any error or infirmity whatsoever either in the order of taking cognizance or in the procedure followed by the Court below. Needless to say that the accused is not affected or prejudiced by the impugned order. The case does not call for any interference by this Court in exercise of jurisdiction under Section 482 of Cr.P.C. Accordingly, the petition is dismissed.
Learned counsel for the petitioners submits that the material produced by the Investigating Agency is not sufficient to make out an offence under Section 307 of IPC. If so, it is open for the petitioners to urge the said plea before the Trial Court at the stage of hearing before charge and seek discharge or for dropping of the charge as the case may be.
Sd/-
JUDGE Rsh