Shreemajjagadguru Shankaracharya vs The State Of Karnataka By on 7 March, 2025

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Karnataka High Court

Shreemajjagadguru Shankaracharya vs The State Of Karnataka By on 7 March, 2025

Bench: M.Nagaprasanna

1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 07TH DAY OF MARCH, 2025

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.24266 OF 2021 (GM - RES)

BETWEEN:

SHREEMAJJAGADGURU SHANKARACHARYA
SHREE SHREE RAGHAVESHWARA BHARATI SWAMIJI
(FORMERLY KNOWN AS SRI HARISH SHARMA)
AGED ABOUT 46 YEARS,
PEETADHIPATHI OF SHREE SAMSTHANA
GOKARNA SHREE RAMACHANDRAPURA MTH,
RAMACHANDRAPURA VILLAGE,
HANIYA POST,
HOSANAGARA TALUK,
SHIVAMOGGA DISTRICT - 577 418.
... PETITIONER

(BY SRI MANMOHAN P.N., ADVOCATE)

AND:

1. THE STATE OF KARNATAKA BY
GIRINAGARA POLICE STATION AND
CID SPECIAL INVESTIGATING AGENCY,
BENGALURU, THROUGH
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BENGALURU - 560 001.
2

2. SMT.XXXX
W/O SRI XXXX,
XXXXXXX
... RESPONDENTS

(BY SRI THEJESH P., HCGP FOR R-1;
SRI ARAVIND M.NEGLUR, ADVOCATE FOR R-2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.26533/2018 PENDING BEFORE THE I ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU INCLUDING THE
COMPLAINT DATED 29.08.2015 FIR IN CRIME NO.257/2015 DATED
29.08.2015 AND THE CHARGE SHEET NO.06/2018 DATED
07.09.2018 REGISTERED AGAINST THE PETITIONER (ACCUSED
NO.1) BY THE R1 POLICE AND ALL FURTHER PROCEEDINGS
PURSUANT THERETO (PRODUCED AS ANNEXURE-D, A, B AND C).

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
3

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner/Pontiff of Shree Samsthana Gokarna Shree

Ramachandrapura Math ('Math' for short) is knocking at the doors

of this Court calling in question proceedings in C.C.No.26533 of

2018 registered for offences punishable under Sections 376(2)(f),

363, 342, 323, 506 and 149 of the IPC.

2. Heard Sri P.N. Manmohan, learned counsel appearing for

the petitioner, Sri P. Thejesh, learned High Court Government

Pleader appearing for respondent no.1 and Sri Aravind M. Neglur,

learned counsel appearing for respondent No.2.

3. Facts, in brief, germane are as follows:-

The petitioner is said to be the Pontiff of the Math and is the

36th Pontiff in the unbroken lineage of Adi Sankara Parampara. It is

the averment in the petition that Shri Samsthana Gokarna Shri

Mahabaleshwara Devaru and Parivara Devaru has historically,

traditionally and customarily always attached to Math. The

administration and management of the Math has some problems in
4

it and it is averred that there exist continuous disputes between two

factions in the Math. In the year 2010, a crime comes to be

registered in Crime No.27 of 2010 against certain persons for the

offence of morphing and making a fake compact disc with an

intention to tarnish and destroy the reputation of the Math and the

petitioner. The Police, after detailed investigation, filed a charge

sheet against the perpetrators of crime for offences punishable

under Sections 120B, 153(a), 295(a), 298, 500, 511 and 149 of the

IPC and Section 67 of the Information Technology Act, 2000.

Thereafter, certain other cases against office bearers of the Math

also spring for the allegation of sexual harassment. In all these

cases, the Police after investigation file a 'B' report and those

proceedings are closed on account of acceptance of 'B' report.

4. When all the efforts failed, again the averment in the

petition is, during the end of 2013 or early 2014 an Association by

name Gokarna Hitharakshana Samithi and an NGO by name ASTRA

filed public interest litigation in Writ Petition No.36998 of 2013

before this Court on several grounds which the petitioner claims to

be frivolous. After filing of the aforesaid petition, it is alleged that
5

the petitioners therein have taken to threaten the Math by

demanding ransom for withdrawal of PIL. The Pontiff or the Math

did not yield. The extortionists then were caught red-handed by

recording of extortion and a complaint comes to be registered on

21-03-2014 against those perpetrators. A crime then comes to be

registered in Crime No.47 of 2014 and charge sheet is filed by the

Police after investigation for extortion. This is the second

proceeding instituted by the Math against repeated attempts to de-

stabilize the Math. The public interest litigation that was filed in Writ

Petition No.36998 of 2013 comes to be dismissed pursuant to a

detailed affidavit filed by the Math with imposition of costs of ₹1/-

lakh on the petitioners therein for abusing the process of the Court

by registering a frivolous case.

5. Between 12-07-2014 and 18-09-2014 on the eve of

Jayanama Chaturmasya and Sharannavaratri the petitioner had

been camping at Shri Raghuttama Math, Kekkar, Honnavar, a

branch of the Math. The petitioner/Pontiff amongst others were

undertaking certain rituals and conducted Ramakatha in different

parts, the last of which was conducted on 25-08-2014. During the
6

period between 12-07-2014 and 15-07-2014 certain disputes arose

in the Math which resulted in a complaint being lodged in Crime

No.342 of 2014 on 17-08-2014 for the offences punishable under

Sections 120B, 153A & B, 384, 389, 420, 504, 506, 511 and 34 of

the IPC and Section 66A of the Information Technology Act, 2000.

The complaint comes to be closed on filing of 'B' report. The 'B'

report was protested and the concerned Court took cognizance of

the offence.

6. When things stood thus, one Ms. Amshumathi Shastry,

daughter of accused No.1 in Crime No.342 of 2014 registers a

complaint on 26-08-2014 before the Banashankari Police alleging

sexual harassment against her mother by the petitioner/Pontiff

which becomes a crime in Crime No.219 of 2014 for offences

punishable under Sections 354A and 506 of the IPC. The Police

conduct investigation and file a charge sheet against the petitioner

which comes to be challenged in Criminal Revision Petition No. 550

of 2016 which is pending consideration, is the averment in the

petition. Later the 2nd respondent registers a complaint on

29-08-2015 which becomes a crime in Crime No.257 of 2015 and
7

the Police after investigation filed a charge sheet in the matter and

the matter is pending consideration as C.C.No.26533 of 2018. It is

this that has driven the petitioner to this Court in the subject

petition.

7. The learned counsel, Sri P.N. Manmohan representing the

petitioner, would vehemently contend that the complaint having

been registered 9 years after the alleged incident would

undoubtedly be vitiated, as also the entire proceedings, as the

delay in registering the complaint is not explained satisfactorily, let

alone satisfactorily, it is not even explained. He would further

contend that all other issues that are projected in the case at hand

are all answered by this very Court concerning a case in Writ

Petition 56754 of 2018 qua accused No.2. It is his submission that

the facts obtaining in the case at hand are stronger than what was

projected in the case concerning accused No.2.

8. Per contra, learned counsel Sri Aravind M. Neglur

representing the 2nd respondent/complainant would submit that the

issue of delay would not vitiate the proceedings. Those proceedings
8

were against accused No.2. The petitioner is accused No.1.

Therefore, delay cannot be projected as a vitiating factor. In the

case at hand, it is a matter of trial where the petitioner is required

to come out clean. Insofar as the other submissions made, which

are all considered in the aforesaid W.P.No.56754 of 2018, he would

contend that this Court, in its operative portion has held that the

findings therein would not become applicable to any accused. He

would submit that therefore it should not be made applicable to this

accused. He would submit that this Court should independently

consider this petition and not toe the lines of accused No.2.

9. The learned High Court Government Pleader would also toe

the lines of the learned counsel for the 2nd respondent/complainant.

10. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record. In furtherance whereof, the following issues

would arise for my consideration:

(i) Whether there is delay in filing the
complaint/registration of the FIR and the said
delay would vitiate the entire proceedings?
9

(ii) Whether the learned Magistrate taking cognizance
of the offence on the basis of a final report filed
by the policeman who was in fact not an officer
in-charge of the police station, has vitiated the
entire proceedings?

(iii) Whether cognizance taken by the learned
Magistrate on the final report and issuance of
process suffers from non-application of mind and
would be contrary to Section 204 of the Cr.P.C.?

Issue No.1:

Whether there is delay in filing the

complaint/registration of the FIR and the said delay would

vitiate the entire proceedings?

11. Since the entire issue has now sprang from a registration

of the complaint, I deem it appropriate to notice the complaint so

registered by the 2nd respondent, it reads as follows:

"²æÃªÀÄw xxxx
xxxx
xxxx.

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QgÀÄPÀÄ¼À ¤ÃqÀ®Ä DgÀA©ü¹zÀgÀÄ. 2012gÀ ¸ÀªÀÄAiÀÄzÀ°è £ÁªÀÅ Vj£ÀUÀgÀzÀ ªÀÄ£ÉAiÀÄ°è
ªÁ¹¸ÀÄwÛzÉÝªÀÅ. D ¸ÀAzÀ¨sÀð £ÀªÀÄä zÁA¥ÀvÀå wÃgÁ ºÀzÀUÉqÀ®Ä ¥ÁægÀA¨sÀªÁ¬ÄvÀÄ. F
«ZÁgÀªÁV ªÀÄoÀzÀ®Æè ¸ÉÃjzÀAvÉ PÉ®ªÀÅ PÀqÉ £ÀªÀÄä£ÀÄß PÀÆj¹ »jAiÀÄgÀÄ ªÀiÁvÀÄPÀvÉ £ÀqÉ¹zÀgÀÄ.

2012gÀ DUÀ¸ïÖ£À°è Vj£ÀUÀgÀzÀ°è ZÁvÀÄªÀiÁð¸À £ÀqÉAiÀÄÄwÛzÁÝUÀ £À£Àß£ÀÄß UÀÄgÀÄUÀ¼ÀÄ
vÀAVgÀÄªÀ CªÀgÀ PÉÆoÀrUÉ PÀgÉ¹PÉÆArzÀÝgÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è £À£ÀUÉ ªÀÄ£À¢ZÉÒ PÉÃ¼ÀzÉ
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C¦àPÉÆAqÀÄ ªÀÄÄzÁÝqÀÄªÀ ¥ÀæAiÀÄvÀß ªÀiÁrzÁUÀ £Á£ÀÄ UÁ§jUÉÆAqÀÄ CzÀPÉÌ «gÉÆÃ¢ü¹zÉ.
DUÀ CªÀgÀÄ ¹lÄÖUÉÆÃAqÀÄ £À£Àß PÁ°UÉ UÀnÖAiÀiÁV MzÁÝUÀ £Á£ÀÄ £É®zÀ°è ©zÉÝ. DUÀ £À£Àß
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£Àr¹zÀgÀÄ.

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J®èªÀÇ ¸À» ºÉÆÃUÀÄvÀÛzÉ. £ÁªÀÅ PÀgÉzÁUÀ¯É®è §gÀÄvÁÛ EgÀ¨ÉÃPÀÄ" JAzÀÄ ºÉÃ½zÀgÀÄ. F
WÀl£É¬ÄAzÀ ªÀÄvÉÛ wÃªÀæ ªÀiÁ£À¹PÀ MvÀÛqÀPÉÆÌ¼ÀUÁzÉ. UÀÄgÀÄUÀ¼ÀÄ ¸Àj¬Ä®è JAzÀÄ £À£Àß UÀAqÀ£À°è
£Á£ÀÄ ºÉÃ½zÀgÀÆ CªÀgÀÄ CzÀ£ÀÄß Q«UÉ ºÁQPÉÆ¼ÀÄîwÛgÀ°®è. C®èzÉ UÀÄgÀÄUÀ¼ÀÄ PÀgÉzÁUÀ ¤Ã£ÀÄ
CªÀgÀ°èUÉ ºÉÆÃUÀ¨ÉÃPÀÄ, CªÀgÀÄ K£ÀÄ ªÀiÁrzÀgÀÆ ¸ÀºÀPÀj¸À¨ÉÃPÀÄ JAzÀÄ £À£Àß UÀAqÀ£ÉÃ F jÃw
ºÉÃ½zÁUÀ £À£ÀUÉ DWÁvÀªÁ¬ÄvÀÄ.
12

F WÀl£ÉUÀ¼À £ÀAvÀgÀ ¥ÉæÃªÀÄ®vÁ ¥ÀæPÀgÀt ºÉÆgÀ§AzÀ ªÉÄÃ¯É £À£Àß fÃªÀ£ÀzÀ°è
ªÀÄvÉÛ C¯ÉÆèÃ® PÀ¯ÉÆèÃ® DgÀA¨sÀªÁ¬ÄvÀÄ. ¥ÀæPÀgÀtzÀ §UÉÎ ¹LrUÀ¼ÀÄ ºÀ®ªÀgÀ£ÀÄß «ZÁgÀuÉ
£ÀqÉ¸ÀÄwÛzÀÝ ¸ÀAzÀ¨sÀðzÀ°è ¸É¥ÉÖA§gï 13£ÉÃ vÁjÃQ£ÀAzÀÄ £Á£ÀÄ vÀAzÉAiÀÄ ªÀÄ£ÉAiÀÄ°èzÁÝUÀ
C°èUÉ §AzÀ CgÀÄt±ÁåªÀÄ, C£ÀAvÀtÚ, gÀªÉÄÃ±ÀtÚ, ¸ÀÄzsÁPÀgÀ, ªÀÄzsÀÄPÀgÀ CªÀgÀÄ "UÀÄgÀÄUÀ¼ÀÄ
¤£Àß£ÀÄß ªÀÄoÀPÉÌ PÀgÉzÀÄPÉÆAqÀÄ §gÀ®Ä £ÀªÀÄä£ÀÄß PÀ½¹zÁÝgÉ. PÀÆqÀ¯ÉÃ ºÉÆgÀqÀÄ JAzÁUÀ
£Á£ÀÄ UÁ§jUÉÆAqÀÄ §gÀÄªÀÅ¢®è JAzÉ. DUÀ EªÀgÉ®è ¸ÉÃj £À£Àß£ÀÄß J¼ÉzÀÄ £À£Àß£ÀÄß
§¯ÁvÁÌgÀ¢AzÀ CªÀgÀÄ §A¢zÀÝ mÉÆAiÉÆÃmÁ E£ÉÆÃªÁ PÁjUÉ ºÁQ PÀÄªÀÄmÁ ¸À«ÄÃ¥ÀzÀ
PÉPÁÌgÀÄ ªÀÄoÀPÉÌ C¥ÀºÀj¹ PÀgÉzÉÆAiÀÄÝgÀÄ. C°è gÁWÀªÉÃ±ÀégÀ ¨sÁgÀw UÀÄgÀÄUÀ¼ÀÄ "¤Ã£ÀÄ £ÀªÀÄä
¥ÀgÀªÁV ¹Lr ¥ÉÆÃ°Ã¸ÀgÀ JzÀÄgÀÄ ¸ÁQë ºÉÃ½zÀgÉ CxÀªÁ F »AzÉ £ÀqÉzÀ WÀl£É §UÉÎ
K£ÁzÀgÀÆ ºÉÃ½zÀgÉ ¤£Àß£ÀÄß, ¤£Àß vÀAzÉvÁ¬ÄAiÀÄªÀgÀ£ÀÄß ªÀÄÄV¹ ©qÀÄvÉÛÃªÉ" JAzÀÄ £À£ÀUÉ
PÉÆ®ÄèªÀ ¨ÉzÀjPÉ ¤ÃrzÀgÀÄ. CzÉÃ jÃw £À£Àß£ÀÄß C°èUÉ §®ªÀAvÀ¢AzÀ PÀgÉzÉÆAiÀÄÝ ªÉÄÃ¯É
w½¹zÀ ªÀÄA¢ "UÀÄgÀÄUÀ¼ÀÄ ºÉÃ½zÀAvÉ ¤Ã£ÀÄ ªÀÄvÀÄÛ ¤£Àß vÀAzÉAiÀÄ£ÀÄß ªÀÄÄV¹©qÀÄvÉÛÃªÉ"
JAzÀÄ ºÉÃ½zÀgÀÄ. dvÉVzÀÝ vÀAzÉAiÀÄªÀjUÀÆ ¨ÉzÀjPÉ ºÁQzÀgÀÄ. EzÀgÀ £ÀAvÀgÀ £Á£ÀÄ
gÀPÀëuÉ ¤ÃqÀ®Ä ¥ÉÆ°Ã¸ÀgÀ®Æè «£ÀAw ªÀiÁrzÉÝ.

vÀzÀ£ÀAvÀgÀ gÁWÀªÉÃ±ÀégÀ ¨sÁgÀwÃ ¥ÀæPÀgÀtzÀ §UÉÎ ¹Lr PÀbÉÃjUÉ £Á£ÀÄ «ZÁgÀuÉUÉ
ºÁdgÁUÀÄªÀ PÉ® ºÉÆwÛUÉ ªÀÄÄ£Àß dUÀ¢Ã±À ±ÀªÀÄð CªÀgÀ ¥sÉÆÃ¤¤AzÀ (9449595222,
9448356785, 9632598506 - F ªÀÄÆgÀÄ £ÀA§gÀÄUÀ¼À°è MAzÀjAzÀ) PÀgÉ ªÀiÁrzÀ
UÀÄgÀÄUÀ¼ÀÄ "ºÀ¼ÉAiÀÄzÀÄ AiÀiÁªÀÅzÀ£ÀÆß ºÉÃ¼À¨ÉÃqÀ. ¤£Àß «ZÁgÀPÀÆÌ F ¥ÀæPÀgÀtPÀÆÌ ¸ÀA§AzsÀ
E®è. £ÀªÀÄä «gÀÄzÀÞ ªÀiÁvÀ£ÁrzÀgÉ §zÀÄPÀÄ ¸ÀªÀð£Á±ÀªÁUÀÄvÀÛzÉ, ¤£ÀUÉ M¼ÉîAiÀÄzÁUÀÄªÀÅ¢®è"
JAzÀÄ ªÀÄvÉÛ ºÉzÀj¹zÀgÀÄ. C®èzÉ ¹Lr JzÀÄgÀÄ «ZÁgÀuÉ JzÀÄj¸ÀÄwÛzÁÝUÀ¯ÉÃ dUÀ¢Ã±À
±ÀªÀÄð £À£ÀUÉ ªÁmïì D¥ï£À°è ªÉÄ¸ÉÃeï PÀ½¹zÀgÀÄ.

F ªÉÄ¸ÉÃd£ÀÄß £Á£ÀÄ ¹Lr C¢üPÁjAiÀiÁzÀ ²æÃªÀÄw ¹jUËj ºÁUÀÆ
¥ÀÄgÀÄ±ÉÆÃvÀÛªÀÄ CªÀjUÉ vÉÆÃj¹zÉ. CªÀgÀÄ F ªÉÄ¸ÉÃdÄUÀ¼À£ÀÄß CªÀgÀ ¥sÉÆÃ£ï £ÀA§jUÉ
¥sÁªÀðqïð ªÀiÁrPÉÆAqÀgÀÄ. ¹Lr C¢üPÁjUÀ¼ÀÄ £À£Àß£ÀÄß D ¥ÀæPÀgÀtzÀ°è «ZÁj¹zÁUÀ
£À£Àß ªÉÄÃ¯É UÀÄgÀÄUÀ¼ÀÄ ªÀiÁrgÀÄªÀ CvÁåZÁgÀzÀ §UÉÎ w½¸À®Ä F J¯Áè ¨ÉzÀjPÉUÀ¼À PÁgÀt
zsÉÊAiÀÄð §A¢gÀ°®è.

²æÃ gÁWÀªÉÃ±ÀégÀ ¨sÁgÀwÃ, CªÀgÀ ¨ÉA§°UÀgÀÄ £À£Àß£ÀÄß §¯ÁvÁÌgÀªÁV
Vj£ÀUÀgÀ¢AzÀ C¥ÀºÀj¹ PÉPÁÌgÀÄ ªÀÄoÀzÀ°è ¢UÀâAzsÀ£À ªÀiÁr fÃªÀ ¨ÉzÀjPÉ ªÀiÁrzÀÝ®èzÉ
UÀÄgÀÄUÀ¼ÀÄ £À£ÀUÉ JgÀqÀÄ ¨Áj, CAzÀgÉ MªÉÄä 15 ªÀµÀð ªÀAiÀÄ¹ì£ÀªÀ½zÁÝUÀ ªÀÄvÀÄÛ ªÀÄvÉÆÛªÉÄä
ªÀÄzÀÄªÉAiÀiÁzÀ £ÀAvÀgÀ ªÉÄÃ¯É ºÉÃ½zÀAvÉ CvÁåZÁgÀ ªÀiÁrgÀÄvÁÛgÉ. F §UÉÎ PÀÆqÀ¯ÉÃ
vÀ¤SÉ £ÀqÉ¹ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆAqÀÄ £À£ÀUÉ £ÁåAiÀÄ MzÀV¸À¨ÉÃPÁV PÉÃ½PÉÆ¼ÀÄîvÉÛÃ£É.`

Ew vÀªÀÄä «±Áé¹,
¸À»/-
xxxx."

(Emphasis added)
13

The complaint alleges certain offences against several persons.

Insofar as the present petitioner is concerned, it begins and stops in

2006. The allegation is in the year 2006 that the Pontiff used to

touch her inappropriately and make her sit on his lap and she gets

married in 2009 to accused No.2. The story between the husband

and the wife would begin later. Vague references are made to the

act of the petitioner. Therefore, it is a case where the incident of

2006 or even 2009 is sought to be complained of by registering a

complaint on 29-08-2015, 9 or 6 years thereafter.

12. The police, after investigation, have filed a charge sheet.

The summary of the charge sheet as obtaining in column No.7

reads as follows:

"¨ÉAUÀ¼ÀÆgÀÄ£ÀUÀgÀ Vj£ÀUÀgÀ ¥ÉÆ°Ã¸ï oÁuÉ ªÉÆ.¸ÀA.257/15 PÀ®A: PÀ®A:323, 376,
376(2)(J¥sï)(L)(J£ï), 498(J), 109 L¦¹ ¥ÀæPÀgÀtzÀ PÁ®A £ÀA:17

2004-05 ೇ ಾ ನ ಚದುರವ ಯ ರುವ ಾರ ಾ ೇತನ ಾ ೆ ೆ ರ
vÁ®ÆèPÀÄ, ಮ ಘಟ! ಾ"ಮದ xxxx (#$ಾ%&) 8 ೇ ತರಗ ಯ (ಾ ಸಂಗ ೆ+ ಾಖ ಾ-ದು.,
DgÉÆÃ¦ ²æÃ gÁWÀªÉÃ±ÀégÀ ¨sÁgÀw ¸Áé«ÄÃfAiÀÄªÀgÀÄ xxxx AiÀÄ£ÀÄß M¼ÉîAiÀÄ jÃw¬ÄAzÀ
ªÀiÁvÀ£Ár¸ÀÄwÛzÀÄÝzÁÝV, DPÉAiÀÄ §UÉÎ ºÉaÑ£À PÁ¼Àf ªÀ»¸ÀÄwÛzÀÄÝ, EzÀjAzÀ xxxx
¸Áé«ÄÃfAiÀÄ£ÀÄß ೇವರ ಅವ0ಾರ ಎಂದು ನಂ2ದ.ರು.

2006 ೇ ಾ ನ 15 ವಷ% ವಯ 4ನ (ಹು6!ದ & ಾಂಕ: 26.03.1991) ¦AiÀiÁðzÀÄ ಾರರು
10 ೇ ತರಗ ಯ ಾ.ಗ ಆ9ೋಗ ದ ಷಯದ ಏರು-<ೇ9ಾ-ದ.=ಂದ ಅzÀ£ÀÄß ಸಲು ?ೊಸನಗರದ
@"ೕ 9ಾಮಚಂದ"ಪBರ ಮಠ ೆ+ ಬಂ&ದ.ರು. ಮಠದ ಏ ಾಂತ(ಾ- Eಾ0ಾಡುವ ವ ವ ೆG ಇದು.. ಆ ಾ ೆI
14

ಾJKೕLಯವರು xxxx ತ£Àß ಏ ಾಂತ ೊಠN ೆ PÀgÉಯ Eಾತ ಾಡು0ಾ ತನO 0ೊPೆಯ Qೕ ೆ
ಕೂ= ೊಂಡು ಆ ೆಯ Qೖ- ೈಗಳನುO ಮು6! ¦æÃ ಾJಸ&ಂದ Eಾತ ಾN ಈಗ ಾವB
UಾತುEಾ%ಸ ಆಚರVೆಯ ೆ.ೕ(ೆ. ಾವB ಎಲವನುO @"ೕ9ಾಮನ <ೆ"ೕರVೆWಂದ ೇ Eಾಡು0ೇ(ೆ.
@"ೕ9ಾಮನ ಅವ0ಾರ(ೆ ಾನು ಅವರ <ೆ"ೕರVೆಯಂ0ೆ ನOನುO ಇ ೆ ಕ9ೆW ೆ.ೕ ೆ. ನO Xಾತಕದ
ೆಲವB ೋಷಗ (ೆ ಅದನುO ಪ=ಹ=ಸು0ೇ(ೆಂದು £ÀA© , ಆ ೆಯ ಮುಗY0ೆಯನುO ಬಳ ೊಂಡು ಆ ೆಯ
Qೕ ೆ ಎರ- Zರುಚದಂ0ೆ [ಾW Qೕ ೆ ೈ ಇಟು! [ಾWಯನುO ಮು\] ಅ<ಾ"ಪ [ಾಲZ$ಾ-ದ.ರೂ ಸಹ
ಬಲವಂತ(ಾ- ಆ9ೋ# ಾJKೕL ºÀoÀಸಂ ೋಗ EಾNರು0ಾ9ೆ. ಆ ಸಮಯದ xxxx
ಪ" ಭ6 ದರೂ ಸಹ ಅವ=ಂದ 2N ೊಳ ಲು ಾಧ (ಾಗ ೆ ?ಾಗೂ ಈ ಷಯವನುO $ಾ= ಾದರೂ
?ೇ ದ9ೆ ಗುರು ಾಪ ತಟು!ತ ೆ ಇನುO ಮುಂ ೆ 9ಾಮನ ಅನುಗ"ಹ ಆ- ನ ೆ ಒaೆಯ ಾಗುತ ೆಂದು
ನಂ2 ದು. ತ bೆWಂದ ದೃಡಪಟ! Qೕ9ೆ ೆ ಆ9ೋ#-1 @"ೕ 9ಾಘ(ೇಶJರ ಾರ ಾJKೕLಯವರ
ರುದY PÀ®A: 376, 376(2) (J¥sï) (L) L¦¹ jÃvÁå ¸À°è¹PÉÆArgÀÄªÀ zÉÆÃµÁgÉÆÃ¥Àt¥ÀnÖ.

ನಂತರ ಾJKೕLಯವರು ಮಠದ ಪ=(ಾರದ ಸದಸ ?ಾಗೂ ಾJKೕLಯ @ಷ ಾದ
ಮಂಜು ಾf ?ೆ[ಾgh ಎಂಬುವರ Xೊ0ೆ xxxx ಯನುO ಮದು(ೆ EಾN ದು.. ಮದು(ೆ$ಾದ-ನಂತರ
xxxx ಮತು ಮಂಜು ಾf ?ೆ[ಾgh ನಡು(ೆ ಸಂ ಾ=ಕ Uಾರದ ಮನ ಾಪಗaಾ-ದ. ಾರಣ
xxxx (ಾಹ Uೆ]ೕಧ ೆ EಾN ೊಳj ವ ಸಲು(ಾ- £Áå$ಾಲಯದ Q6! ೇ=ದು. ಈ UಾರವB
ಾJKೕLಯವರ ಗಮನ ೆ+ ಬಂ&ದ.=ಂದ ¸Áé«ÄÃLಯವರು ಸಮಯ ೋN 2012£ÉÃ ಾ°ನ
[ೆಂಗಳkರು ನಗರದ -=ನಗರ ಮಠದ xxxx ಯನುO ಮಠ ೆ+ ಕ9ೆW ಮಠದ ನ ತನO ಏ ಾಂತ
ೊಠNಯ ಮಂಜು ಾf ?ೆ[ಾgh ೊಂ& ೆ ಸಂ ಾರವನುO ನPೆ ೊಂಡು ?ೋಗುವಂ0ೆ ಬು&.(ಾದ
?ೇ ದು.. ಆಗ xxxx ಆತ ೊಂ& ೆ ಸಂ ಾರ ನPೆಸಲು ಾಧ (ಾಗು ಲ. ತನ ೆ Uೆ]ೕಧ ೆ ೊN
ಎಂದು ೇ ದ. ೆ+ ೋಪ ೊಂಡ ಾJKೕL xxxx ಯ [ಾWಯನುO ಮು6! Xೋ9ಾ- ಒದು. ೆಳ ೆ+
ತ , ಾ ಂದ ತು ದು ಾJKೕL ಒ0ಾಯ ಪlವ%ಕ(ಾ- ಹಠಸಂ ೋಗ EಾNರುವBದು ತ bೆWಂದ
ದೃಡಪಟ! Qೕ9ೆ ೆ ಆ9ೋ#-1 @"ೕ 9ಾಘ(ೇಶJರ ಾರ ಾJKೕLಯವರ ರುದY ಕಲಂ:323, 376,
376(2)(ಎm) ಐ# =ೕ0ಾ ೋoಾ9ೋಪಣಪ6!.

ಈ ಪ"ಕರಣದ ಎ2 ಆ9ೋ# ಮಂಜು ಾf ?ೆ[ಾgh ಈತನು ಎ1 @"ೕ 9ಾಘ(ೇಶJರ ಾರ
ಾJKೕL ರವರ ಪ=(ಾರದ ಸದಸ ಾ-ದು., ಾJKೕLಯವರ @ಷ ಾ-ರು0ಾ ೆ. ೊಂದ ಮpaೆ
xxxx ಎ2 ಆ9ೋ#qಂ& ೆ 2009 ೇ ಾ ನ ಮದು(ೆ$ಾ-ದು.. ಮದು(ೆ$ಾದ ನಂತರ ಎ2
ಆ9ೋ# ರವರು ೊಂದ ಮpaೆ xxxx ೆ Eಾನ ಕ(ಾ- ಮತು ೈpಕ(ಾ- Zರುಕುಳ ೕN, D ಾ ೆI
ಮಠ ೆ+ ?ೋ- ಹಣ ಪPೆದು ೊಂಡು ಬರುವಂ0ೆ ಮತು ಾJKೕL ಕ9ೆ ಾಗ ೕನು ಅ ೆ ?ೋ- ಅವರು
ಏನು EಾNದರೂ ಸಹಕ=ಸ[ೇ ೆಂದು ಒ0ಾಯ EಾN 0ೊಂದ9ೆ ೊ6!ರುವBದು ತ bೆWಂದ
ದೃಡಪ6!ರುವBದ=ಂದ ಎ2 ರವರ ರುದY ಕಲಂ: 498(ಎ), 109 R/w 376, 376(2)(ಎr) ಐ#
=ೕ0ಾ ೋoಾ9ೋಪಣಪ6!."
15

The summary of the charge sheet also stops at 2006 or 2009.

Ostensibly so, as from 2009 the problems between the husband

and the wife are narrated in the complaint. Therefore, there is

delay in registering the complaint. There is no satisfactory

explanation for the delay of 9 years in registering the complaint.

Whether the delay in cases of offences punishable under Section

376 of the IPC would cut at the root of the matter and vitiate the

entire proceedings is necessary to be noticed.

13. The issue whether unexplained delay would vitiate the

registration of the complaint even in cases of the offence punishable

under Section 376 of the IPC need not detain this Court for long or

delve deep into the matter. The Apex Court in the case of KISHAN

SINGH v. GURPAL SINGH1 holds as follows:

"22. In cases where there is a delay in lodging
an FIR, the court has to look for a plausible
explanation for such delay. In the absence of such an
explanation, the delay may be fatal. The reason for
quashing such proceedings may not be merely that the
allegations were an afterthought or had given a coloured
version of events. In such cases the court should carefully
examine the facts before it for the reason that a frustrated
litigant who failed to succeed before the civil court may

1
(2010) 8 SCC 775
16

initiate criminal proceedings just to harass the other side
with mala fide intentions or the ulterior motive of wreaking
vengeance on the other party. Chagrined and frustrated
litigants should not be permitted to give vent to their
frustrations by cheaply invoking the jurisdiction of the
criminal court. The court proceedings ought not to be
permitted to degenerate into a weapon of harassment
and persecution. In such a case, where an FIR is
lodged clearly with a view to spite the other party
because of a private and personal grudge and to
enmesh the other party in long and arduous criminal
proceedings, the court may take a view that it
amounts to an abuse of the process of law in the facts
and circumstances of the case. (Vide Chandrapal
Singh v. Maharaj Singh [(1982) 1 SCC 466 : 1982 SCC (Cri)
249 : (1982) 1 SCC 466 : AIR 1982 SC 1238]; State of
Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC
(Cri) 426 : 1992 Supp (1) SCC 335 : AIR 1992 SC 604]; G.
Sagar Suri v. State of U.P. (2000) 2 SCC 636 : 2000 SCC
(Cri) 513 : (2000) 2 SCC 636 : AIR 2000 SC 754];
and GorigePentaiah v. State of A.P[(2008) 12 SCC
531 : (2009) 1 SCC (Cri) 446])"

(Emphasis supplied)

The Apex Court, on the aforesaid issue, in the case of PARKASH

CHAND v. STATE OF HIMACHAL PRADESH2 has held as follows:

"20. There is admittedly a delay of 7 months in
lodging the FIR in the case of alleged rape. If the case
is reported immediately apart from the inherent
strength of the case flowing from genuineness
attributable to such promptitude, the perceptible
advantage would be the medical examination to which
the prosecutrix can be subjected and the result of such
examination in a case where there is a resistance. It is
the case of the prosecution that she raised hue and cry
and therefore apparently she would have resisted.
Possibly, a medical examination may have revealed

2
(2019) 5 SCC 628
17

signs of any resistance or injuries. In this case the High
Court has proceeded on the basis of testimony of the
prosecutrix and sought to fortify it by the extra-judicial
confession made before PW4 and PW5."

The Apex Court in the case of RAJESH PATEL v. STATE OF

JHARKHAND3, has held as follows:

".... .... ....

16. Further, there is an inordinate delay of nearly
11 days in lodging the FIR with the jurisdictional police.
The explanation given by the prosecutrix in not lodging the
complaint within the reasonable period after the alleged offence
committed by the appellant is that she went to her house and
narrated the offence committed by the appellant to her mother
and on the assurance of Purnendu Babu, PW 3, the mother
remained silent for two to four days on the assurance that he
will take action in the matter. Further, the explanation given
by the prosecutrix regarding the delay is that at the time
of commission of offence the appellant had threatened
her that in case she lodges any complaint against him,
she would be killed. The said explanation is once again
not a tenable explanation. Further, in the reason assigned
by the High Court regarding not lodging the complaint
immediately or within a reasonable period, it has
observed that in case of rape, the victim girl hardly dares
to go to the police station and make the matter open to
all out of fear of stigma which will be attached with the
girls who are ravished. Also, the reason assigned by the trial
court which justifies the explanation offered by the prosecution
regarding the delay in lodging the complaint against the
appellant has been erroneously accepted by the High Court in
the impugned judgment [ Criminal Appeal No. 58 of 1999,
decided on 14-11-2006 (Jhar)] . In addition to that, further
observation made by the High Court regarding the delay is that
the prosecutrix as well as her mother tried to get justice by
interference of PW 3, who is a common friend of both of them

3
(2013) 3 SCC 791
18

and PW 4, the doctor with whom the prosecutrix was working as
a nurse. When the same did not materialise, after a lapse
of 11 days, the FIR was lodged with the jurisdictional
police for the offence said to have been committed by the
appellant. Further, the High Court has also proceeded to
record the reason that the prosecutrix had every
opportunity to give different date of occurrence instead
of 14-2-1993 but she did not do it which reason is not
tenable in law. Further, the High Court accepted the
observation made by the learned trial Judge wherein the
explanation given by the prosecutrix in her evidence
about being terrorised to be killed by the appellant in
case of reporting the matter to the police, is wholly
untenable in law. The same is not only unnatural but also
improbable. Therefore, the inordinate delay of 11 days in
lodging the FIR against the appellant is fatal to the
prosecution case. This vital aspect regarding inordinate delay
in lodging the FIR not only makes the prosecution case
improbable to accept but the reasons and observations made by
the trial court as well as the High Court in the impugned
judgments are wholly untenable in law and the same cannot be
accepted. Therefore, the findings and observations made by the
courts below in accepting delay in lodging the FIR by assigning
unsatisfactory reasons cannot be accepted by this Court as the
findings and reasons are erroneous in law.

17. Further in the case in hand, PW 3, who is a common
friend of the appellant and the prosecutrix, according to the
prosecution case, has categorically stated that he does not know
anything about the case for which he had received the notice
from the court to depose in the case. PW 4 has stated in his
evidence that the prosecutrix was getting nursing training
privately in his chamber for the last three years as on the date
of his examination, namely, on 16-11-1995. He has stated in his
examination-in-chief that on 14-2-1993 when he opened his
chamber the prosecutrix came to his chamber and further stated
that her mother did not tell him anything. He has been treated
as hostile by the prosecution, he was cross-examined by the
prosecutor, in his cross-examination he has categorically stated
that he has told the police that he does not know anything
about the incident. He has further stated that neither the
prosecutrix nor her mother told him about the incident and
further stated that he does not know anything about the case.
19

18. Further, neither the doctor nor the IO has been
examined before the trial court to prove the prosecution case.
The appellant was right in bringing to the notice of the trial
court as well as the High Court that the non-examination of the
aforesaid two important witnesses in the case has prejudiced
the case of the appellant for the reason that if the doctor would
have been examined he could have elicited evidence about any
injury sustained by the prosecutrix on her private part or any
other part of her body and also the nature of hymen layer, etc.
so as to corroborate the story of the prosecution that the
prosecutrix suffered unbearable pain while the appellant
committed rape on her. The non-examination of the doctor who
had examined her after 12 days of the occurrence has not
prejudiced the case of the defence for the reason that the
prosecutrix was examined after 12 days of the offence alleged
to have been committed by the appellant because by that time
the sign of rape must have disappeared. Even if it was
presumed that the hymen of the victim was found ruptured and
no injury was found on her private part or any other part of her
body, finding of such rupture of hymen may be for several
reasons in the present age when the prosecutrix was a working
girl and that she was not leading an idle life inside the four walls
of her home. The said reasoning assigned by the High Court is
totally erroneous in law.

19. In view of the above statement of evidence of PW 3
and PW 4 whose evidence is important for the prosecution to
prove the chain of events as per its case, the statement of
evidence of the aforesaid witnesses has seriously affected the
prosecution case. Therefore, the courts below could not have,
by any stretch of imagination, on the basis of the evidence on
record held that the appellant is guilty of committing the offence
under Section 376 IPC. Further, according to the prosecutrix,
PW 3 who is alleged to have rescued her from the place of
occurrence of offence, has clearly stated in his evidence that he
does not know anything about the incident in his statement
thereby he does not support the version of the prosecution. The
High Court has erroneously accepted the finding of the trial
court that the appellant has not been prejudiced for non-
examination of the doctor for the reason that she was working
as a nurse in the private hospital of PW 4 and being a nurse she
knew that the information on commission of rape is grave in
nature and she would not have hesitated in giving the
20

information to the police if the occurrence was true. Further, the
finding of the courts below that non-examination of the IO by
the prosecution who has conducted the investigation in this case
has not caused prejudice to the case of the appellant, since the
prosecution witnesses were unfavourable to the prosecution who
were either examined or declared hostile by the prosecution,
which reasoning is wholly untenable in law. Therefore, the
finding and reasons recorded by both the trial court as well as
the High Court regarding non-examination of the abovesaid two
witnesses in the case has not prejudiced the case of the
appellant is totally an erroneous approach of the courts below.
For this reason also, we have to hold that the findings and
reasons recorded in the impugned judgment [ Criminal Appeal
No. 58 of 1999, decided on 14-11-2006 (Jhar)] that the trial
court was justified in holding that the prosecution has proved
the charge against the appellant and that he has committed the
offence on the prosecutrix, is totally erroneous and the same is
wholly unsustainable in law.

20. The finding with regard to the sentence of the
appellant recorded by the trial court which is accepted by the
High Court on the basis of the solitary testimony of the
prosecutrix which is supported by the evidence of her mother,
PW 2 is once again an erroneous approach on the part of the
High Court. The offence of rape alleged to have been committed
by the appellant is established without any evidence as the
prosecution failed to prove the chain of events as stated by the
prosecutrix. Since the evidence of PW 3 and PW 4 did not
support the prosecution case, but on the other hand, their
evidence has seriously affected the story of the prosecution.
Therefore, the courts below could not have found the appellant
as guilty of the charge and convicted and sentenced him for the
offence of rape.

21. Further, one more strong circumstance which has
weighed in our mind is that they had good acquaintance with
each other as they were classmates and they were in terms of
meeting with each other. The defence counsel had alternatively
argued that the appellant had sex with her consent. The High
Court proceeded not to accept the said argument by giving
reasons that the appellant failed to explain as to under what
circumstance he had sex with the consent of the prosecutrix
21

when she was confined in his house. The contention urged on
behalf the appellant that it was consensual sex with the
prosecutrix is to be believed for the reason that she herself had
gone to the house of the appellant though her version is that
she went there at the request of the appellant to take back her
book which she had given to him. This is a strong circumstance
to arrive at the conclusion that the defence case of the appellant
is of consensual sex. Further, the prosecution case is that after
the offence was committed by the appellant he had locked the
room from outside and left. After half an hour Purnendu Babu,
PW 3 arrived and unlocked the room. This story is improbable to
believe and the prosecutrix has not lodged the complaint either
immediately or within reasonable period from the date of
occurrence. The complaint was indisputably lodged after a lapse
of 11 days by the prosecutrix. In this regard, it is pertinent to
mention the judgment of this Court in Raju v. State of M.P.
[(2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751] , the relevant
paragraph of which is extracted hereunder for better
appreciation in support of our conclusion: (SCC p. 141, para 12)

"12. Reference has been made in Gurmit Singh case
[State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996
SCC (Cri) 316] to the amendments in 1983 to Sections 375
and 376 of the Penal Code making the penal provisions
relating to rape more stringent, and also to Section 114-A
of the Evidence Act with respect to a presumption to be
raised with regard to allegations of consensual sex in a case
of alleged rape. It is however significant that Sections 113-A
and 113-B too were inserted in the Evidence Act by the
same amendment by which certain presumptions in cases of
abetment of suicide and dowry death have been raised
against the accused. These two sections, thus, raise a clear
presumption in favour of the prosecution but no similar
presumption with respect to rape is visualised as the
presumption under Section 114-A is extremely restricted in
its applicability. This clearly shows that insofar as
allegations of rape are concerned, the evidence of a
prosecutrix must be examined as that of an injured witness
whose presence at the spot is probable but it can never be
presumed that her statement should, without exception, be
taken as the gospel truth. Additionally, her statement can,
at best, be adjudged on the principle that ordinarily no
injured witness would tell a lie or implicate a person falsely.
We believe that it is under these principles that this case,
and others such as this one, need to be examined."
22

22. For the aforesaid reasons the prosecution case is not
natural, consistent and probable to believe to sustain the
conviction and sentence of the appellant for the alleged offence
said to have been committed by him.

23. The trial court as well as the High Court should
have appreciated the evidence on record with regard to
delay and not giving proper explanation regarding delay
of 11 days in filing FIR by the prosecutrix and non-
examination of the complainant witnesses viz. the doctor
and the IO which has not only caused prejudice to the
case of the appellant but also the case of prosecution has
created reasonable doubt in the mind of this Court.
Therefore, the benefit of doubt must enure to the
appellant. As we have stated above, the testimony of the
prosecutrix is most unnatural and improbable to believe
and therefore it does not inspire confidence for
acceptance of the same for sustaining the conviction and
sentence. Therefore, we are of the view that the impugned
judgment [ Criminal Appeal No. 58 of 1999, decided on 14-11-
2006 (Jhar)] requires to be interfered with by this Court in
exercise of its jurisdiction. Accordingly, we allow the appeal and
set aside the impugned judgment [ Criminal Appeal No. 58 of
1999, decided on 14-11-2006 (Jhar)] . If the appellant has
executed bail bonds, the same may be discharged."

(Emphasis supplied)

4
In the case of MOHD. ALI v. STATE OF UTTAR PRADESH , the

Apex Court holds as follows:

".... .... ....

26. The obtaining factual matrix has to be appreciated on
the touchstone of the aforesaid parameters.

27. Be it clearly stated here that delay in lodging
FIR in cases under Section 376 IPC would depend upon
facts of each case and this Court has given immense

4
(2015) 7 SCC 272
23

allowance to such delay, regard being had to the trauma
suffered by the prosecutrix and various other factors, but
a significant one, in the present case, it has to be
appreciated from a different perspective. The prosecutrix
was missing from home. In such a situation, it was a
normal expectation that either the mother or the brother
would have lodged a missing report at the police station.
The same was not done. This action of PW 2 really throws
a great challenge to common sense. No explanation has
been offered for such delay. The learned trial Judge has
adverted to this facet on an unacceptable backdrop by
referring to the principle that prosecutrix suffered from
trauma and the constraint of the social stigma. The
prosecutrix at that time was nowhere on the scene. It is
the mother who was required to inform the police about
missing of her grown-up daughter. In the absence of any
explanation, it gives rise to a sense of doubt.

28. That apart, the factum that the appellant informed
the mother of the victim that he had left the prosecutrix at the
door of her house also does not command acceptance. The
recovery of the prosecutrix by the brother and his friends also
creates a cloud of suspicion. We are not inclined to believe the
prosecution version as has been projected that one Arif had
informed the brother of the prosecutrix that his sister was at his
place but for reasons best known to the prosecution, Arif has
not been examined. That apart, the persons who were
accompanying the brother have also not been examined by the
prosecution. Thus, the manner of recovery of the prosecutrix
from the house of Arif remains a mystery.

29. Be it noted, there can be no iota of doubt that on the
basis of the sole testimony of the prosecutrix, if it is
unimpeachable and beyond reproach, a conviction can be based.
In the case at hand, the learned trial Judge as well as the High
Court have persuaded themselves away with this principle
without appreciating the acceptability and reliability of the
testimony of the witness. In fact, it would not be inappropriate
to say that whatever the analysis in the impugned judgment [
Criminal Appeal No. 602 of 2006, decided on 25-3-2009 (All)] ,
it would only indicate an impropriety of approach. The
prosecutrix has deposed that she was taken from one place to
24

the other and remained at various houses for almost two
months. The only explanation given by her is that she was
threatened by the accused persons. It is not in her testimony
that she was confined to one place. In fact, it has been borne
out from the material on record that she had travelled from
place to place and she was ravished a number of times. Under
these circumstances, the medical evidence gains significance,
for the examining doctor has categorically deposed that there
are no injuries on the private parts. The delay in FIR, the
non-examination of the witnesses, the testimony of the
prosecutrix, the associated circumstances and the
medical evidence, leave a mark of doubt to treat the
testimony of the prosecutrix as so natural and truthful to
inspire confidence. It can be stated with certitude that
the evidence of the prosecutrix is not of such quality
which can be placed reliance upon."

(Emphasis supplied)

On a blend of law as enunciated by the Apex Court in the afore-

extracted judgments and if such enunciation is pitted to the facts

obtaining in the case at hand, what would unequivocally emerge is

that delay in lodging the FIR would vitiate the proceedings, unless

delay is satisfactorily explained. The delay that the Apex Court

considers in the aforementioned cases were all considering

the offence of rape and the delay in those cases ranged from

8 days to 7 months. The delay in the case at hand is 9 years,

if considered an event of 2006 and 6 years, if considered an

event after the marriage of the prosecutrix. The perusal at the
25

complaint or the summary of the charge sheet quote supra, would

clearly indicate that the delay is not explained satisfactorily even to

its semblance. Therefore, the delay in registering the crime has

vitiated the registration and the proceedings in the aftermath. Thus,

the point that arose for consideration is answered in favour of the

petitioner and this would be enough circumstance to hold that the

entire proceedings are vitiated.

Issue No.2:

Whether the learned Magistrate taking cognizance of

the offence on the basis of a final report filed by the

policeman who was in fact not an officer in-charge of the

police station, has vitiated the entire proceedings?

14. It is germane to notice certain provisions of the

Criminal Procedure Code to consider this point. Notification is

defined under Section 2(m); Section 2(o) defines officer in

charge of a police station; Police report is defined under Section

2(r); Police Station is defined under Section 2(s). These

provisions read as follows:
26

"2. Definitions.- In this Code, unless the context
otherwise requires, -
............

(m) "notification" means a notification published in
the official gazetted.
............

(o) "officer in charge of a police station"
includes, when the officer in charge of the
police station is absent from the station-
house or unable from illness or other cause
to perform his duties, the police officer
present at the station-house who is next in
rank to such officer and is above the rank
of constable or, when the State
Government so directs, any other police
officer so present;

............

(r) "police report" means a report forwarded by a
police officer to a Magistrate under sub-section
(2) of Section 173;

(s) "Police station" means any post or place
declared generally or specialty by the State
Government to be a police station, and includes
any local area specified by the State
Government in this behalf."

(Emphasis supplied)

Section 36 of the Cr.P.C. which deals with powers of superior

officers of police reads as follows:

"36. Powers of superior officers of police.- Police
officers superior in rank to officer in charge of a police station
may exercise the same powers, throughout the local area to
27

which they are appointed, as may be exercised by such officer
within the limits of his station."

The afore-quoted provisions are germane for consideration of this

point. Investigation was handed over to an officer of CID. The

officer of CID after collection of evidence frames a report and files

the same before the Magistrate. The final report is the charge

sheet. The issue whether the officer of CID is an officer in-charge of

the police station or not is required to be considered.

15. The basic requirement of declaration of an officer of CID

to be an officer in-charge of the police station, is, the office of CID

should be declared to be a police station. Admittedly, there is no

notification issued under Section 2(m) (supra) declaring office of

CID to be a police station. Therefore, the officer in-charge in the

office of the CID cannot be an officer in-charge of a police station,

without at the outset the office of the CID being declared as a

police station.

16. It is now necessary to consider the purport of Section 36.

Section 36 of the Cr.P.C. depicts powers of superior officers of

police. The Police Officers who are superior in rank of the officer-in-
28

charge of a police station may exercise the same power throughout

the local area to which they are appointed as may be exercised by

such officer within the limits of the station. What unmistakably

emerges is that the police officer superior in rank to an officer in-

charge of the police station will have to be a superior officer in-

charge of a police station. The officer of the CID cannot mean to be

a superior officer in-charge of a police station as the office of CID is

not a police station.

17. The learned counsel for the 2nd respondent/ complainant

would contend that a notification is issued by Government

empowering CID to conduct investigation in terms of a general

order/standing order which empowers CID to investigate and file a

report. Therefore, it becomes germane to notice the said

notification issued by Government of Mysore under the Mysore

Police Act on 18.02.1970. The said notification reads as follows:

"HOME SECRETARIAT
NOTIFICATION
Bangalore, dated 18th February 1979.
29

S.O.424, - In exercise of the powers conferred by
Sections 4, 5 and 6 of the Mysore Police Act, 1963 (Mysore
Act 4 of 1964), the Government of Mysore hereby directs
that whenever a Sub-Inspector of Police of the State
Criminal Investigation Department, investigates at any
place in the State an offence, he shall be deemed to be
an officer in charge of the Police Station within the limits
of which such place is situate.
[No.HD 83 PEG 69]"

(Emphasis added)

A perusal at the Notification would indicate that investigation

department is empowered to investigate at any place in the State

an offence and for such investigation he shall be deemed to be an

officer in-charge of the police station within the limits of which such

place is situated.

18. On the strength of the said notification the contention

advanced by the learned counsel for the complainant or the State is

unacceptable for the reason that the investigation department

which is now the CID, is directed to investigate under the

Notification and not file a charge sheet. Filing of a charge sheet is

only by an officer in-charge of a police station. Section 173 (2) of

the Cr.P.C. deals with report of a police officer on completion of

investigation and reads as follows:
30

"173. Report of police officer on completion of
investigation.-(1) Every investigation under this Chapter shall
be completed without unnecessary delay.

(1A) The investigation in relation to an offence
under sections 376, 376A, 376 AB, 376B, 376C, 376D,
376DA, 376DB or 376E of the Penal Code, 1860 shall
be completed within two months from the date on
which the information was recorded by the
officer in charge of the police station.

(2)(i) As soon as it is completed, the
officer in charge of the police station shall
forward to a Magistrate empowered to take
cognizance of the offence on a police report, a
report in the form prescribed by the State
Government, stating-

(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear
to be acquainted with the
circumstances of the case;
(d) whether any offence appears to have
been committed and, if so, by whom;
(e) whether the accused has been
arrested;
(f) whether he has been released on his
bond and, if so, weather with or
without sureties;
(g) whether he has been forwarded in
custody under section 170;
(h) whether the report of medical
examination of the woman has been
attached where investigation relates
to an offence under sections 376,
376A, 376AB, 376C, 376D, 376DA,
376DB or section 376E of the Penal
Code, 1860

(ii) The officer shall also communicate, in
such manner as may be prescribed by the
31

State Government, the action taken by him,
to the person, if any, by whom the
information relating to the commission of the
offence was first given.

(3) Where a superior officer of police has been appointed
under section 158, the report shall, in any case in which the
State Government by general or special order so directs, be
submitted through that officer, and he may, pending the orders
of the Magistrate, direct the officer in charge of the police
station to make further investigation.

(4) Whenever it appears from a report forwarded under
this section that the accused has been released on his bond, the
Magistrate shall make such order-for the discharge of such bond
or otherwise as he thinks fit.

(5) When such report is in respect of a case to which
section 170 applies, the police officer shall forward to the
Magistrate alongwith the report-

(a) all documents or relevant extracts thereof
on which the prosecution proposes to rely
other than those already sent to the
Magistrate during investigation;

(b) the statements-recorded under section 161
of all the persons whom the prosecution
proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any
such statement is not relevant to the subject-matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and append
a note requesting the Magistrate to exclude that part from the
copies to be granted to the accused and stating his reasons for
making such request.

(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies of all
or any of the documents referred to in sub-section (5).
32

(8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary, he
shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2)."

(Emphasis supplied)

Section 173 of the Cr.P.C. mandates that a final report/charge

sheet shall be filed by an officer in-charge of a police station. It is

now germane to notice the law, as laid down by the Apex Court, on

the subject issue. The Apex Court in the case of STATE OF

BIHAR v. LALU SINGH5 has held as under:

"11. The State Government, in exercise of the powers
under Sections 7 and 12 of the Police Act, 1861, has framed the
Bihar Police Manual Chapter 15 thereof deals with the
Constitution and functions of the Criminal Investigation
Department Rule 431, with which we are concerned in the
present appeal, reads as follows:

"431. (a) Sub-Inspectors of the department
deputed to districts have not the powers of an officer in
charge of a police station nor of the subordinate of such an
officer, unless they are posted to a police station for the
purpose of exercising such powers. It follows that unless so
posted they have not the powers of investigation conferred
by Chapter XII CrPC and their functions are confined to
supervising or advising the local officers concerned. If for
any reason it be deemed advisable that a Sub-Inspector of
the department should conduct an investigation in person,

5
(2014) 1 SCC 663
33

the orders of the Inspector General shall be taken to post
him to a district where he shall be appointed by the
Superintendent to the police station concerned. Such a
necessity will not arise in case of Inspectors of CID as given
in sub-rule (b) below.

Sub-Inspectors of the department shall not be
employed to conduct investigations in person unless such
orders have been obtained.

(b) Under Section 36 CrPC Inspectors and
superior officers of CID are superior in rank to an
officer in charge of a police station and as such may
exercise the some powers throughout the State as
may be exercised by an officer in charge of a police
station within the limits of his station."

Rule 431(b) makes the Inspectors and supetior
officers of CID superior in rank to an officer in charge
of a police station and they have been conferred with
the same powers as may be exercised by an officer in
charge of a police station. This Rule, therefore,
envisages that an Inspector of CID can exercise the
power of an officer in charge of a police station.

12. Here, in the present case, as stated earlier, the
investigation was conducted by the Inspector of CID and it
is he who had submitted the report in terms of Section 173
of the Code. In view of what we have observed above, the
Inspector of CID can exercise the power of an officer in
charge of a police station and once it is held so, its natural
corollary is that the Inspector of CID is competent to submit
the report as contemplated under Section 173 of the Code.
The case in hand is not one of those cases where the officer
in charge of the police station had deputed the Inspector of
CID to conduct some steps necessary during the course of
investigation. Rather, in the present case, the investigation
itself was entrusted to the Inspector of CID by the order of
the Director General of Police. In such circumstances, in
our opinion, it shall not be necessary for the officer in
charge of the police station to submit the report
under Section 173(2) of the Code. The formation of
an opinion as to whether or not there is a case to
forward the accused for trial shall always be with the
officer in charge of the police station or the officers
superior in rank to him, but in a case investigated by
the Inspector of CID, all these powers have to be
34

performed by the Inspector himself or the officer
superior to him. In view of what we have discussed
above, the observations made by the High Court in
the impugned judgment [Lulu Singh v. State of Bihar, Cri
WJC No. 996 of 2007, order dated 23-3-2009 (Pat)]
are erroneous and deserve to be set aside.

(Emphasis supplied)

The Apex Court, in the afore-extracted judgment, held that it was

permissible for a superior officer to conduct investigation and file a

final report since the Rules i.e., Rule 43(1)(b) empowered such an

act. The corollary of the said finding would be that if the Rules

permit such an investigation and filing of a final report would

become sustainable.

19. Later, the Apex Court in the case of TOFAN

SINGH v. STATE OF TAMIL NADU6 while considering Section

173 has held as follows:

"77. The Court in Mukesh Singh [Mukesh Singh v. State
(NCT of Delhi), (2020) 10 SCC 120] then set out the provisions
of the NDPS Act and concluded : (SCC p. 160 para 10)

"10.3.6. Section 52 of the NDPS Act mandates that
any officer, arresting a person under Sections 41, 42, 43 or
44 to inform the person arrested of the grounds for such
arrest. Sub-Section (2) of Section 52 further provides that
every person arrested and article seized under warrant
issued under sub-section (1) of Section 41 shall be

6
(2021) 4 SCC 1
35

forwarded without unnecessary delay to the Magistrate by
whom the warrant was issued. As per sub-section (3) of
Section 52, every person arrested and article seized under
sub-section (2) of Sections 41, 42, 43, or 44 shall be
forwarded without unnecessary delay to the officer in
charge of the nearest police station, or the officer
empowered under Section 53. That thereafter the
investigation is to be conducted by the officer in charge of a
police station."
(emphasis supplied)

78. The Court in Mukesh Singh [Mukesh Singh v. State
(NCT of Delhi), (2020) 10 SCC 120] then went on to state :
(SCC p. 161, para 10)

"10.3.8. ... Section 53 does not speak that all those
officers to be authorised to exercise the powers of an officer
in charge of a police station for the investigation of the
offences under the NDPS Act shall be other than those
officers authorised under Sections 41, 42, 43, and 44 of the
NDPS Act. It appears that the legislature in its wisdom has
never thought that the officers authorised to exercise the
powers under Sections 41, 42, 43 and 44 can not be the
officer in charge of a police station for the investigation of
the offences under the NDPS Act.

10.4. Investigation includes even search and seizure.
As the investigation is to be carried out by the officer in
charge of a police station and none other and therefore
purposely Section 53 authorises the Central Government or
the State Government, as the case may be, invest any
officer of the Department of Drugs Control, Revenue or
Excise or any other department or any class of such officers
with the powers of an officer in charge of a police station for
the investigation of offences under the NDPS Act. Section
42 confers power of entry, search, seizure and arrest
without warrant or authorisation to any such officer as
mentioned in Section 42 including any such officer of the
Revenue, Drugs Control, Excise, Police or any other
department of a State Government or the Central
Government, as the case may be, and as observed
hereinabove, Section 53 authorises the Central Government
to invest any officer of the Department of Central Excise,
Narcotics, Customs, Revenue Intelligence or any other
Department of the Central Government....or any class of
such officers with the powers of an officer in charge of a
36

police station for the investigation. Similar powers are with
the State Government. The only change in Sections 42 and
53 is that in Section 42 the word "police" is there, however
in Section 53 the word "police" is not there. There is an
obvious reason as for police such requirement is not
warranted as he always can be the officer in charge of a
police station as per the definition of an "officer in charge of
a police station" as defined under Cr.P. C."

79. On the basis of this judgment, Shri Lekhi argued that
"investigation." under the NDPS Act includes search and seizure
which is to be done by a Section 42 officer and would, therefore,
begin from that stage.

80. In this connection, it is important to advert first to
the decision of this Court in H.N. Rishbud v. State of Delhi [H.N.
Rishbud v. State of Delhi, (1955) 1 SCR 1150 : AIR 1955 SC
196 : 1955 Cri LJ 526]. This judgment explains in great detail as
to what exactly the scope of "investigation" is under the CrPC. It
states : (SCR pp. 1156-58 : AIR pp. 200-202, para 5)

"5. ... In order to ascertain the scope of and the
reason for requiring such investigation to be conducted by
an officer of high rank (except when othervise permitted by
a Magistrate), it is useful to consider what "investigation"
under the Code comprises.

Investigation usually starts on information relating to
the commission of an offence given to an officer in charge of
a police station and recorded under Section 154 of the
Code. If from information so received or otherwise, the
officer in charge of the police station has reason to suspect
the commission of an offence, he or some other subordinate
officer deputed by him, has to proceed to the spot to
investigate the facts and circumstances of the case and if
necessary to take measures for the discovery and arrest of
the offender.

Thus investigation primarily consists in the
ascertainment of the facts and circumstances of the case.
By definition, it includes 'all the proceedings under the Code
for the collection of evidence conducted by a police officer'.
For the above purposes, the investigating officer is given
the power to require before himself the attendance of any
person appearing to be acquainted with the circumstances
of the case. He has also the authority to examine such
37

person orally either by himself or by a duly authorised
deputy. The officer examining any person in the course of
investigation may reduce his statement into writing and
such writing is available, in the trial that may follow, for use
in the manner provided in this behalf in Section 162.

Under Section 155 the officer in charge of a
police station has the power of making a search in
any place for the seizure of anything believed to be
necessary for the purpose of the investigation. The
search has to be conducted by such officer in person.
A subordinate officer may be deputed by him for the
purpose only for reasons to be recorded in writing if
he is unable to conduct the search in person and
there is no other competent officer available. The
investigating officer has also the power to arrest the
person or persons suspected of the commission of the
offence under Section 54 of the Code. A police officer
making an investigation is enjoined to enter his
proceedings in a diary from day-to-day. Where such
investigation cannot be completed within the period
of 24 hours and the accused is in custody he is
enjoined also to send a copy of the entries in the
diary to the Magistrate concerned.

It is important to notice that where the
investigation is conducted not by the officer in charge
of the police station but by a subordinate officer (by
virtue of one or other of the provisions enabling him
to depute such subordinate officer for any of the
steps in the investigation) such subordinate officer is
to report the result of the investigation to the officer
in charge of the police station. If upon the completion
of the investigation it appears to the officer in charge
of the police station that there is no sufficient
evidence or reasonable ground, he may decide to
release the suspected accused, if in custody, on his
executing a bond. If, however, it appears to him that
there is sufficient evidence or reasonable ground, to
place the accused on trial, he is to take the necessary
steps therefor under Section 170 of the Code. In
either case, on the completion of the investigation he
has to submit a report to the Magistrate under
Section 173 of the Code in the prescribed form
furnishing various details.
38

Thus, under the Code investigation consists generally
of the following steps : (1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender, (4)
Collection of evidence relating to the commission of the
offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their
statements into writing, if the officer thinks fit, (b) the
search of places or seizure of things considered necessary
for the investigation and to be produced at the trial, and (5)
Formation of the opinion as to whether on the material
collected there is a case to place the accused before a
Magistrate for trial and if so taking the necessary steps for
the same by the filing of a charge-sheet under Section 173.

The scheme of the Code also shows that while
it is permissible for an officer in charge of a police
station to depute some subordinate officer to conduct
some of these steps in the investigation, the
responsibility for every one of these steps is that of
the person in the situation of the officer in charge of
the police station, it having been clearly provided in
Section 168 that when a subordinate officer makes an
investigation he should report the result to the officer
in charge of the police station. It is also clear that the
final step in the investigation viz. the formation of the
opinion as to whether or not there is a case to place
the accused on trial is to be that of the officer in
charge of the police station. There is no provision
permitting delegation thereof but only a provision
entitling superior officers to supervise or participate
under Section 551."

This statement of the law was reiterated
in State of M.P. v. Mubarak Ali [State of M.P. v. Mubarak
Ali, 1959 Supp (2) SCR 201; AIR 1959 SC 707; 1959
Cri LJ 920], SCR at pp. 211 &212 : AIR p. 711."

(Emphasis supplied)

In the aforesaid judgment the Apex Court considered a

subordinate officer conducting investigation, but held that the filing
39

of the final report should be only from the hands of an officer in-

charge of the police station. It is now the State Government on

12-01-2024 has declared the CID to be a police station. I deem it

appropriate to notice the Notification. It reads as follows:

"GOVERNMENT OF KARNATAKA

No.HD/94/POP/2023 Karnataka Government Secretariat
Vidhana Soudha,
Bangalore, dated 12-01-2024.

NOTIFICATION

In exercise of the powers conferred by clause (s) of
Section 2 of the Code of Criminal Procedure, 1973 (Central Act-
2 of 1974), and in supersession of earlier order or notification
issued in this regard, the Criminal Investigation Department
(CID) an unit of Karnataka Police Department is declared and
notified as police station for the entire territory of the State of
Karnataka.

The Police Inspector rank officer of the Criminal
Investigation Department (CID) will be the Station House
Officer and Officer in-charge of Police Station for the
purpose of provisions of the Code of Criminal Procedure
1973 (Central Act-2 of 1974) relating to the criminal
cases referred by the Government of Karnataka, the
Supreme Court or the High Court or the Director General
and Inspector general of Police, Karnataka State for the
purpose of investigation and to register criminal cases in
cognizable offences made out of enquiries to the Criminal
Investigation Department (CID) by the Government of
Karnataka, the Supreme Court of India or the High Court
or the Director General and Inspector General of Police,
Karnataka State.
By order and in the name of the
Governor of Karnataka,
Sd/-
(K.N.VANAJA), 12/1/24
40

Under Secretary to Government,
Home Department (Police Expenditure)."

20. Therefore, the unmistakable conclusion on a coalesce of

the aforesaid direction, the notification, the investigation conducted

by the officer of the CID and the law laid down by the Apex Court

interpreting Section 173 of the Cr.P.C. would be that the

chargesheet that is filed by the officer of the CID who is not the

officer in-charge of a police station would stand vitiated.

Accordingly, this point as well, is answered against the prosecution.

Issue No.3:

Whether cognizance taken by the learned Magistrate on

the final report and issuance of process suffers from non-

application of mind and would be contrary to Section 204 of

the Cr.P.C.?

21. Section 204 of Cr.P.C. mandates that before ordering

process against the accused, the Magistrate shall find out existence

of sufficient grounds. Section 204 of the Cr.P.C. reads as follows:

"204. Issue of process.-
41

(1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient
ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his
summons for the attendance of the accused,
or

(b) a warrant-case, he may issue a warrant, or,
if he thinks fit, a summons, for causing the
accused to be brought or to appear at a
certain time before such Magistrate or (if he
has no jurisdiction himself) some other
Magistrate having jurisdiction.

(2) No summons or warrant shall be issued
against the accused under sub-section (1) until a list
of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a
complaint made in writing every summons or
warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.

(4) When by any law for the time being in
force any process-fees or other fees are payable, no
process shall be issued until the fees are paid and, if
such fees are not paid within a reasonable time, the
Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to
affect the provisions of section 87."

(Emphasis supplied)

The mandate of the afore-extracted provision of law is that the

learned Magistrate taking cognizance of an offence can do it only if

there exists sufficient ground to proceed. Section 190 of Cr.P.C.
42

which deals with conditions requisite for initiation of proceedings

and cognizance of offence by the learned Magistrate would also

mean that the learned Magistrate should take cognizance upon a

police report on such facts that are narrated in the report. It is the

aforesaid provisions that are required to be considered to answer

these points. The order taking cognizance becomes germane to be

noticed and it reads thus:

"For order:

Perused the records;

Cognizance is taken in respect of the offence
punishable U/s 323, 376, 376((2(F)(I)(N), 498(A),
109 of IPC. Hence register the case against the
accused in Register No.III in respect of the above
said offence. Issue SS to A1 and 2, Call on 20-10-
2018."

(Emphasis added)

The manner in which cognizance is taken against the petitioner is

as afore-extracted. If order taking cognizance is considered on the

touchstone of either Section 204 or Section 190 of Cr.P.C.

(supra), it would without a shadow of doubt fall foul of the said

provisions of law, as there is absolutely no application of mind by
43

the learned Magistrate in taking cognizance as to which offence he

is taking cognizance of.

22. Reference to the judgments of the Apex Court in the case

of GHCL EMPLOYEES STOCK OPTION TRUST; SUNIL BHARTI

MITTAL and the latest judgments on the point in the cases

of RAVINDRANATHA BAJPE and SUNIL TODI, in the

circumstances, is apposite. The Apex Court in the case of GHCL

EMPLOYEES STOCK OPTION TRUST v. INDIA INFOLINE

LIMITED7 holds as follows:

"14. Be that as it may, as held by this Court,
summoning of accused in a criminal case is a serious
matter. Hence, criminal law cannot be set into motion as
a matter of course. The order of the Magistrate
summoning the accused must reflect that he has applied
his mind to the facts of the case and the law applicable
thereto. The Magistrate has to record his satisfaction with
regard to the existence of a prima facie case on the basis
of specific allegations made in the complaint supported
by satisfactory evidence and other material on record.

.... ..... ..... ....

19. In the order issuing summons, the learned Magistrate
has not recorded his satisfaction about the prima facie case as
against Respondents 2 to 7 and the role played by them in the
capacity of Managing Director, Company Secretary or Directors
which is sine qua non for initiating criminal action against them.

7
(2013) 4 SCC 505
44

Recently, in Thermax Ltd. v. K.M. Johny [(2011) 13 SCC
412 : (2012) 2 SCC (Cri) 650 : (2011) 11 Scale 128] while
dealing with a similar case, this Court held as under : (SCC p.
429, paras 38 & 39)

"38. Though Respondent 1 has roped all the
appellants in a criminal case without their specific role or
participation in the alleged offence with the sole purpose
of settling his dispute with the appellant Company by
initiating the criminal prosecution, it is pointed out that
Appellants 2 to 8 are the ex-Chairperson, ex-Directors
and senior managerial personnel of Appellant 1
Company, who do not have any personal role in the
allegations and claims of Respondent 1. There is also no
specific allegation with regard to their role.

39. Apart from the fact that the complaint lacks
necessary ingredients of Sections 405, 406, 420 read
with Section 34 IPC, it is to be noted that the concept of
'vicarious liability' is unknown to criminal law. As
observed earlier, there is no specific allegation made
against any person but the members of the Board and
senior executives are joined as the persons looking after
the management and business of the appellant
Company."
(Emphasis supplied)

In SUNIL BHARTI MITTAL v. CENTRAL BUREAU OF

INVESTIGATION8 the Apex Court holds as follows:

"48. Sine qua non for taking cognizance of the offence is
the application of mind by the Magistrate and his satisfaction
that the allegations, if proved, would constitute an offence. It is,
therefore, imperative that on a complaint or on a police report,
the Magistrate is bound to consider the question as to whether
the same discloses commission of an offence and is required to
form such an opinion in this respect. When he does so and
decides to issue process, he shall be said to have taken
cognizance. At the stage of taking cognizance, the only
consideration before the court remains to consider judiciously

8
(2015) 4 SCC 609
45

whether the material on which the prosecution proposes to
prosecute the accused brings out a prima facie case or not.

.... .... ....

53. However, the words "sufficient ground for
proceeding" appearing in Section 204 are of immense
importance. It is these words which amply suggest that
an opinion is to be formed only after due application of
mind that there is sufficient basis for proceeding against
the said accused and formation of such an opinion is to
be stated in the order itself. The order is liable to be set
aside if no reason is given therein while coming to the
conclusion that there is prima facie case against the
accused, though the order need not contain detailed
reasons. A fortiori, the order would be bad in law if the
reason given turns out to be ex facie incorrect."

(Emphasis supplied)

In the latest judgment, the Apex Court, in the case

of RAVINDRANATHA BAJPE v. MANGALORE SPECIAL

ECONOMIC ZONE LIMITED9 holds as follows:

"8.1. In the case of Maksud Saiyed v. State of
Gujarat, (2008) 5 SCC 668, in paragraph 13, it is observed and
held as under:

"13. Where a jurisdiction is exercised on a
complaint petition filed in terms of Section 156(3) or
Section 200 of the Code of Criminal Procedure, the
Magistrate is required to apply his mind. The Penal Code
does not contain any provision for attaching vicarious
liability on the part of the Managing Director or the
Directors of the Company when the accused is the
company. The learned Magistrate failed to pose unto
himself the correct question viz. as to whether the

9
(2022)15 SCC 430
46

complaint petition, even if given face value and taken to
be correct in its entirety, would lead to the conclusion
that the respondents herein were personally liable for
any offence. The Bank is a body corporate. Vicarious
liability of the Managing Director and Director would
arise provided any provision exists in that behalf in the
statute. Statutes indisputably must contain provision
fixing such vicarious liabilities. Even for the said
purpose, it is obligatory on the part of the complainant
to make requisite allegations which would attract the
provisions constituting vicarious liability."

8.2. As observed by this Court in the case of Pepsi
Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC
749 and even thereafter in catena of decisions,
summoning of an accused in a criminal case is a serious
matter. Criminal Law cannot be set into motion as a
matter of course. In paragraph 28 in Pepsi Foods
Limited (supra), it is observed and held as under:

"28. Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot be
set into motion as a matter of course. It is not that
the complainant has to bring only two witnesses
to support his allegations in the complaint to have
the criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the
case and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would that be
sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The Magistrate has to
carefully scrutinise the evidence brought on record and
may even himself put questions to the complainant and
his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or
any of the accused."

(Emphasis supplied)
47

It would also be useful to notice the latest judgment rendered by

the Apex Court on 03.12.2021 in aid of the afore-mentioned

reasons assigned. The Apex Court in the case of SUNIL

TODI v. STATE OF GUJARAT10 holds as follows:

"39. This Court has held that the Magistrate is duty
bound to apply his mind to the allegations in the
complaint together with the statements which are
recorded in the enquiry while determining whether there
is a prima facie sufficient ground for
proceeding. In Mehmood Ul Rehman v. Khazrir Mohammad
Tunda, this Court followed the dictum in Pepsi Foods
Ltd. v. Special Judicial Magistrate, and observed that setting the
criminal law in motion against a person is a serious matter.
Hence, there must be an application of mind by the Magistrate
to whether the allegations in the complaint together with the
statements recorded or the enquiry conducted constitute a
violation of law. The Court observed:

"20. The extensive reference to the case law
would clearly show that cognizance of an offence on
complaint is taken for the purpose of issuing process to
the accused. Since it is a process of taking judicial notice
of certain facts which constitute an offence, there has to
be application of mind as to whether the allegations in
the complaint, when considered along with the
statements recorded or the inquiry conducted thereon,
would constitute violation of law so as to call a person to
appear before the criminal court. It is not a
mechanical process or matter of course. As held by
this Court in Pepsi Foods Ltd. v. Judicial Magistrate
[Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC
749 : 1998 SCC (Cri) 1400] to set in motion the
process of criminal law against a person is a
serious matter."

"22. The steps taken by the Magistrate
under Section 190(1)(a) CrPC followed by Section

10
2021 SCC OnLine SC 1174
48

204 CrPC should reflect that the Magistrate has
applied his mind to the facts and the statements
and he is satisfied that there is ground for
proceeding further in the matter by asking the
person against whom the violation of law is
alleged, to appear before the court. The
satisfaction on the ground for proceeding would
mean that the facts alleged in the complaint would
constitute an offence, and when considered along
with the statements recorded, would, prima facie,
make the accused answerable before the court. No
doubt, no formal order or a speaking order is
required to be passed at that stage. The Code of
Criminal Procedure requires speaking order to be passed
under Section 203 CrPC when the complaint is dismissed
and that too the reasons need to be stated only briefly.
In other words, the Magistrate is not to act as a post
office in taking cognizance of each and every complaint
filed before him and issue process as a matter of course.
There must be sufficient indication in the order passed
by the Magistrate that he is satisfied that the allegations
in the complaint constitute an offence and when
considered along with the statements recorded and the
result of inquiry or report of investigation under Section
202 CrPC, if any, the accused is answerable before the
criminal court, there is ground for proceeding against
the accused under Section 204 CrPC, by issuing
process for appearance. The application of mind, is
best demonstrated by disclosure of mind on the
satisfaction. If there is no such indication in a case
where the Magistrate proceeds under Sections
190/204 CrPC, the High Court under Section 482
CrPC is bound to invoke its inherent power in
order to prevent abuse of the power of the
criminal court. To be called to appear before the
criminal court as an accused is serious matter
affecting one's dignity, self-respect and image in
society. Hence, the process of criminal court shall
not be made a weapon of harassment."
.........

42. In Birla Corporation Ltd. v. Adventz Investments and
Holdings24, the earlier decisions which have been referred to above were
cited in the course of the judgment. The Court noted:

"26. The scope of enquiry under this section is
extremely restricted only to finding out the truth or
49

otherwise of the allegations made in the complaint in order
to determine whether process should be issued or not under
Section 204 CrPC or whether the complaint should be
dismissed by resorting to Section 203 CrPC on the footing
that there is no sufficient ground for proceeding on the
basis of the statements of the complainant and of his
witnesses, if any. At the stage of enquiry under Section 202
CrPC, the Magistrate is only concerned with the allegations
made in the complaint or the evidence in support of the
averments in the complaint to satisfy himself that there is
sufficient ground for proceeding against the accused."

43. Hence, the Court held:

"33. The order of the Magistrate summoning
the accused must reflect that he has applied his mind
to the facts of the case and the law applicable
thereto. The application of mind has to be indicated
by disclosure of mind on the satisfaction. Considering
the duties on the part of the Magistrate for issuance
of summons to the accused in a complaint case and
that there must be sufficient indication as to the
application of mind and observing that the Magistrate
is not to act as a post office in taking cognizance of
the complaint, in Mahmood Ul Rehman [Mehmood Ul
Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC
420 : (2016) 1 SCC (Cri) 124]..."

44. The above principles have been reiterated in the
judgment in Krishna Lal Chawla v. State of U.P."

(Emphasis supplied)

23. A conjoint consideration of the afore-extracted judgments

would lead to an unmistakable conclusion that the Magistrate will

have to apply his mind while issuing process under Section 204 of

the Cr.P.C. as summoning of the accused cannot be a nonchalant

process.
50

24. A now time, in the journey of the judgment, to consider

the authorities relied on by the respondents and its effect on the

preceding analysis. The learned counsel appearing for the

2nd respondent places reliance upon the judgment of the Apex Court

in the case of STATE OF GUJARAT v. AFROZ MOHAMMED

HASANFATTA11, in paragraph 24 of the said judgment reads as

follows:

"24. In the present case, cognizance of the offence has
been taken by taking into consideration the charge-sheet filed
by the police for the offence under Sections 420, 465, 467, 468,
471, 477-A and 120-B IPC, the order for issuance of process
without explicitly recording reasons for its satisfaction for issue
of process does not suffer from any illegality."

To consider the contention of the learned counsel for the

2nd respondent/complainant that the issue stands covered

by AFROZ insofar as application of mind at the time of taking of

cognizance of an offence on filing of a charge sheet is concerned,

the facts in the case of AFROZ are required to be noticed. The facts

are found in paragraphs 5 and 6, 13.1, 14, 16, 20 of the said

judgment and they read as follows:

11
(2019) 20 SCC 539
51

"5. Statement of other witnesses viz. BabubhaiKanjibhai
Patel, partner of S. Babulal Angadiya and PravinbhaiJethabhai
Patel, Manager of Babulal Angadiya was recorded on 11-8-2014.
Charge-sheet was filed under Section 173 CrPC in Criminal Case
No. 47715 of 2014 on 18-8-2014 against two persons, namely,
Sunil Agarwal and Ratan Agarwal. In the said charge-sheet, the
respondent-accused was referred to as a "suspect". The
respondent-accused AfrozHasanfatta was arrested by the police
officers of DCB Police Station, Surat on 20-8-2014 for
investigation in connection with FIR No. 16 of 2014. The first
supplementary charge-sheet was filed under Section
173(8) CrPC in Criminal Case No. 55259 of 2014 against
MadanlalManikchand Jain on 30-9-2014, According to the
appellant, in the said first supplementary charge-sheet,
the respondent-accused was not added as an accused as
the statutory period for filing charge-sheet in the case of
the respondent-accused had not expired.

6. During the course of further investigation, statement of
witnesses CA Surendra Dhareva, AmratbhaiNarottamdas Patel
and elder brother of the respondent-accused Jafar Mohammed
Hasanfatta, was recorded under Section 161 CrPC. As per the
prosecution, the said statement of Jafar Mohammed Hasanfatta,
elder brother of respondent-accused shows that the respondent
has arranged to transfer Rs. 3,00,00,000 into the account of his
brother Jafar Mohammed Hasanfatta through RTGS from Natural
Trading Company, owned by co-accused Madanlal Jain. The
respondent-accused is the sole proprietor of Nile Industries Pvt.
Ltd. Statement of Samir Jiker Gohil, Manager of the said Nile
Industries Pvt. Ltd. was recorded on 18-10-2014. According to
the prosecution, bank statement of account of the respondent-
accused in Union Bank of India, Nanpura Branch from 31-12-
2013 to 25-3-2014 reflects crores of money having been
transferred from Natural Trading Company's account to
respondent's Company--Nile Trading Corporation. Further bank
statement of Nile Trading Corpn. also reflects credit of huge
amount into its account from Gangeshwar Mercantile Pvt. Ltd.
owned by Madanlal Jain. Based on further investigation, namely,
statement of witnesses, bank transactions and copy of call
details record between respondent and Madanlal Jain and other
accused, second supplementary charge-sheet was filed
arraigning the respondent as Accused 1 and Amit alias Bilal
Haroon Gilani as Accused 2. Based on the second supplementary
52

charge-sheet, cognizance was taken of the offences under
Sections 420, 465, 467, 468, 471, 477-A and 120-B IPC in
Criminal Case No. 62851 of 2014 on 15-11-2014 and the
Magistrate ordered issuance of summons against the accused
arraigned thereon including the respondent Afroz Hasanfatta.
... ... ... ...

13.1. (i) While directing issuance of process to the
accused in case of taking cognizance of an offence based
upon a police report under Section 190(1)(b) CrPC,
whether it is mandatory for the court to record reasons
for its satisfaction that there are sufficient grounds for
proceeding against the accused?

14. The charge-sheet was filed in Criminal Case No.
47715 of 2014 on 18-8-2014 against the accused persons,
namely, Sunil Agrawal and Raton Agrawal. In the first charge-
sheet, the respondent Afroz Mohammad Hasanfatta
(AfrozHasanfatta) was referred to as a suspect. In the second
supplementary charge-sheet filed on 15-11-2014 in Criminal
Case No. 62851 of 2014, the respondent Afroz is arraigned as
Accused 1 and Amit alias BilaiHarcon Gilani as Accused 2. In
the second suppliementary charge-sheet, prosecution
relies upon the statement of witnesses as well as on
certain bank transactions as to flow of money into the
account of the respondent Afroz Hasanfatta and his
Company Nile Trading Corporation. The order of taking
cognizance of the second supplementary charge-sheet and
issuance of summons to the respondent AfrozHasanfatta reads
as under:

"I take in consideration charge-sheet/complaint for
the offence of Sections 420, 465, 467, 468 IPC, etc.
Summons to be issued against the accused."
... ... ... ...

16. It is well settled that at the stage of issuing process,
the Magistrate is mainly concerned with the allegations made in
the complaint or the evidence led in support of the same and
the Magistrate is only to be satisfied that there are sufficient
grounds for proceeding against the accused. It is fairly well
settled that when issuing summons, the Magistrate need not
explicitly state the reasons for his satisfaction that there are
53

sufficient grounds for proceeding against the accused. Reliance
was placed upon Bhushan Kumar v. State (NCT of Delhi)
[Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC
424 : (2012) 2 SCC (Cri) 872] wherein it was held as under :
(SCC pp. 428-29, paras 11-13)

"11. In Chief Enforcement Officer v. Videocon
International Ltd. [Chief Enforcement Officer v. Videocon
International Ltd." (2008) 2 SCC 492 : (2008) 1 SCC (Cri)
471] (SCC p. 499, para 19) the expression "cognizance"
was explained by this Court as "it merely means 'become
aware of' and when used with reference to a court or a
Judge, it connotes 'to take notice of judicially'. It indicates
the point when a court or a Magistrate takes judicial notice
of an offence with a view to initiating proceedings in respect
of such offence said to have been committed by someone.'
It is entirely a different thing from initiation of proceedings;
rather it is the condition precedent to the initiation of
proceedings by the Magistrate or the Judge. Cognizance is
taken of cases and not of persons. Under Section 190 of the
Code, it is the application of judicial mind to the averments
in the complaint that constitutes cognizance. At this stage,
the Magistrate has to be satisfied whether there is sufficient
ground for proceeding and not whether there is sufficient
ground for conviction. Whether the evidence is adequate for
supporting the conviction can be determined only at the
trial and not at the stage of enquiry. If there is sufficient
ground for proceeding then the Magistrate is empowered for
issuance of process under Section 204 of the Code.

12. A "summons" is a process issued by a court
calling upon a person to appear before a Magistrate. It is
used for the purpose of notifying an individual of his legal
obligation to appear before the Magistrate as a, response to
violation of law. In other words, the summons will announce
to the person to whom it is directed that a legal proceeding
has been started against that person and the date and time
on which the person must appear in court. A person who is
summoned is legally bound to appear before the court on
the given date and time Wilful disobedience is liable to be
punished under Section 174 IPC. It is a ground for contempt
of court.

13. Section 204 of the Code does not mandate the
Magistrate to explicitly state the reasons for issuance of
summons. It clearly states that if in the opinion of a
54

Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding, then the summons may be
issued. This section mandates the Magistrate to form an
opinion as to whether there exists a sufficient ground for
summons to be issued but it is nowhere mentioned in the
section that the explicit narration of the same is mandatory,
meaning thereby that it is not a prerequisite for deciding the
validity of the summons issued."

(emphasis supplied)
... ... ... ...

20. In a case instituted on a police report, in warrant
cases, under Section 239 CrPC, upon considering the police
report and the documents filed along with it under Section 173
CrPC, the Magistrate after affording opportunity of hearing to
both the accused and the prosecution, shall discharge the
accused, if the Magistrate considers the charge against the
accused to be groundless and record his reasons for so doing.
Then comes Chapter XIX-C -- Conclusion of trial -- the
Magistrate to render final judgment under Section 248 CrPC
considering the various provisions and pointing out the three
stages of the case. Observing that there is no requirement of
recording reasons for issuance of process under Section 204
CrPC, in Raj Kumar Agarwal v. State of U.P. [Raj Kumar
Agarwal v. State of U.P., 1999 SCC OnLine All 1394 : 1999 Cri
LJ 4101], B.K Rathi, J. the learned Single Judge of the Allahabad
High Court held as under : (SCC OnLine All paras 8-9)

"8.....As such there are three stages of a case. The
first is under Section 204 CrPC at the time of issue of
process, the second is under Section 239 CrPC before
framing of the charge and the third is after recording the
entire evidence of the prosecution and the defence. The
question is whether the Magistrate is required to scrutinise
the evidence at all the three stages and record reasons of
his satisfaction. If this view is taken, it will make speedy
disposal a dream. In my opinion the consideration of merits
and evidence at all the three stages is different. At the
stage of issue of process under Section 204 CrPC detailed
enquiry regarding the merit and demerit of the cases is not
required. The fact that after investigation of the case, the
police has submitted the charge-sheet, may be considered
as sufficient ground for proceeding at the stage of issue of
process under Section 204 CrPC however subject to the
55

condition thai at this stage the Magistrate should examine
whether the complaint is barred under any law, .... At the
stage of Section 204 CrPC if the complaint is not found
barred under any law, the evidence is not required to be
considered nor are the reasons required to be recorded. At
the stage of charge under Section. 239 or 240 CrPC the
evidence may be considered very briefly, though at that
stage also, the Magistrate is not required to meticulously
examine and to evaluate the evidence and to record
detailed reasons.

9. A bare reading of Sections 203 and 204 CrPC
shows that Section 203 CrPC requires that reasons should
be recorded for the dismissal of the complaint. Contrary to
it, there is no such requirement under Section 204 CrPC.
Therefore, the order for issue of process in this case without
recording reasons, does not suffer from any illegality."

We fully endorse the above view taken by the
learned Judge.

(Emphasis supplied)

The case that the Apex Court was considering was of the Magistrate

taking cognizance on a supplementary charge sheet after direction

for a further investigation. It is in those circumstances the Apex

Court has held that the Magistrate taking cognizance once a charge

sheet was already filed against the accused need not bear

application of mind. Therefore, the judgment in the case

of AFROZ would not be applicable to the facts of the case at Hand,

as the facts considered in the case of AFROZ, as aforedone, are

distinguishable without much ado. The added circumstance is the

latest judgment of the Apex Court in the cases
56

of RAVINDRANATHA BAJPE and SUNIL TODI supra would hold

the field with regard to application of mind. The judgments relied on

by the learned counsel appearing for the 2nd respondent in the

cases of A.R. ANTULAY and P.V. PAVITHRAN are rendered on

different set of facts obtaining in those cases considered by the

Apex Court and the High Court of Andhra Pradesh. Therefore, none

of the judgments relied on by the respondents are applicable to the

facts of the case at hand. It is the judgments relied on by the

learned Senior Counsel for the petitioner that are overwhelming and

sound acceptance on the facts obtaining in the case at hand.

25. In the later judgment, the Apex Court in the case of

VIKAS CHANDRA v. STATE OF U.P. UTTAR PRADESH12 has held

as follows:

"14. In the aforesaid circumstances, the next
question to be considered is whether a summons issued
by a Magistrate can be interfered with in exercise of the
power under Section 482, Cr. P.C. In the decisions
in Bhushan Kumar v. State (NCT of Delhi) and Pepsi
Foods Ltd.'s case (supra) this Court held that a petition
filed under Section 482, Cr. P.C., for quashing an order
summoning the accused is maintainable. There cannot be
any doubt that once it is held that sine qua non for
exercise of the power to issue summons is the subjective

12
2024 SCC OnLine SC 1534
57

satisfaction "on the ground for proceeding further" while
exercising the power to consider the legality of a
summons issued by a Magistrate, certainly it is the duty
of the Court to look into the question as to whether the
learned Magistrate had applied his mind to form an
opinion as to the existence of sufficient ground for
proceeding further and in that regard to issue summons
to face the trial for the offence concerned. In this context,
we think it appropriate to state that one should understand that
'taking cognizance', empowered under Section 190, Cr. P.C.,
and 'issuing process', empowered under Section 204, Cr. P.C.,
are different and distinct. (See the decision in Sunil Bharti
Mittal v. C.B.I.).
... ... ....
16. In the decision in S.M.S. Pharmaceuticals
Ltd. v. Neeta Bhalla, this Court held that the settled
position for summoning of an accused is that the Court
has to see the prima facie evidence. This Court went on
to hold that the 'prima facie evidence' means the
evidence sufficient for summoning the accused and not
the evidence sufficient to warrant conviction. The inquiry
under Section 202, Cr. P.C., is limited only to ascertain whether
on the material placed by the complainant a prima facie case
was made out for summoning the accused or not.

17. In an earlier decision in Smt. Nagawwa v. Veeranna
Shivalingappa Konjalgi, this Court laid down certain conditions
whereunder a complaint can be quashed invoking the power
under Section 482, Cr. P.C., thus:--

"(1) where the allegations made in the complaint or
the statements of the witnesses recorded in support of the
same taken at their face value make out absolutely no case
against the accused or the complaint does not disclose the
essential ingredients of an offence which is alleged against
the accused;

(2) where the allegations made in the complaint are
patently absurd and inherently improbable so that no
prudent person can ever reach a conclusion that there is
sufficient ground for proceeding against the accused;
58

(3) where the discretion exercised by the Magistrate
in issuing process is capricious and arbitrary having been
based either on no evidence or on materials which are
wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental
legal defects, such as, want of sanction, or absence of a
complaint by legally competent authority and the like."
... ... ...
20. As per the impugned judgment the High Court went
on to consider and held thus:--

"As per mandate of this Section, there must be
explicit or implicit abetment or some overt act
indicative or suggestive of fact that some instigation
was given for committing suicide and the applicant
was having an interest in it. Nothing has surfaced,
which may reflect on the mindset of the applicant that
he ever intended the consequence that the deceased
would commit suicide and with that view in mind, he
stopped payment of salary. Had it been the actual
position then obviously the suicide note must have
whispered about that particular aspect or it would
have at least alluded to that situation, but on careful
perusal of the suicide note it explicit that the
deceased himself was bent upon committing suicide
in case the salary was not drawn in his favour. But
under circumstances, there is nothing to suggest that
the applicant was conscious of that position and
knowing the same situation he insisted that he would
not pay the salary in question. The trial court,
however, ignoring all these legal aspects took
cognizance of the offence by rejecting the final report
submitted by the Investigating Officer and issued
process against the applicant by way of summoning.
Resultantly, this application is allowed. Criminal
proceedings of impugned order dated 05.04.2012
passed by Chief Judicial Magistrate, Shahjahanpur in
Criminal Case No. 1478 of 2012, Vikas v. Ram
Babu, Case Crime No. C-2 of 2005, under
Section 306 IPC, Police Station-Alhaganj, District
Shahjahanpur by which the applicant has been
summoned to face the trial is hereby quashed."

(Emphasis supplied)
59

The Apex Court, again, in the case of JM LABORATORIES V.

STATE OF ANDHRA PRADESH13 has held as follows:

"8. In the judgment and order of even date in criminal
appeal arising out of SLP (Crl.) No. 2345 of 2024 titled "INOX
Air Products Limited Now Known as INOX Air Products Private
Limited v. The State of Andhra Pradesh", we have observed
thus:
"33. It could be seen from the aforesaid order that
except recording the submissions of the complainant, no
reasons are recorded for issuing the process against the
accused persons.

34. In this respect, it will be relevant to refer to the
following observations of this Court in the case of Pepsi
Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC
749 (supra):

"28. Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not that the
complainant has to bring only two witnesses to support
his allegations in the complaint to have the criminal
law set into motion. The order of the Magistrate
summoning the accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of
allegations made in the complaint and the evidence
both oral and documentary in support thereof and
would that be sufficient for the complainant to succeed
in bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and
may even himself put questions to the
complainant and his witnesses to elicit answers
to find out the truthfulness of the allegations or
otherwise and then examine if any offence is
prima facie committed by all or any of the
accused."

13
2025 SCC online SC 208
60

35. This Court has clearly held that summoning of an
accused in a criminal case is a serious matter. It has
been held that the order of the Magistrate summoning
the accused must reflect that he has applied his mind to
the facts of the case and the law applicable thereto. This
Court held that the Magistrate is required to examine the
nature of allegations made in the complaint and the
evidence, both oral and documentary in support thereof
and as to whether that would be sufficient for
proceeding against the accused. It has been held that
the Magistrate is not a silent spectator at the time of
recording of preliminary evidence before summoning the
accused.
36. The said law would be consistently following by this
Court in a catena of judgments including in the cases of Sunil
Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC
609, Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015)
12 SCC 420 and Krishna Lal Chawla v. State of Uttar
Pradesh (2021) 5 SCC 435.

37. Recently, a Bench of this Court to which one of us
(Gavai, J.) was a Member, in the case of Lalankumar
Singh v. State of Maharashtra 2022 SCC OnLine SC
1383 (supra), has observed thus:

"38. The order of issuance of process is not an empty
formality. The Magistrate is required to apply his mind as to
whether sufficient ground for proceeding exists in the case or
not. The formation of such an opinion is required to be stated
in the order itself. The order is liable to be set aside if no
reasons are given therein while coming to the conclusion that
there is a prima facie case against the accused. No doubt, that
the order need not contain detailed reasons. A reference in this
respect could be made to the judgment of this Court in the
case of Sunil Bharti Mittal v. Central Bureau of Investigation9,
which reads thus:
"51. On the other hand, Section 204 of the Code deals
with the issue of process, if in the opinion of the Magistrate
taking cognizance of an offence, there is sufficient ground for
proceeding. This section relates to commencement of a
criminal proceeding. If the Magistrate taking cognizance of a
case (it may be the Magistrate receiving the complaint or to
whom it has been transferred under Section 192), upon a
consideration of the materials before him (i.e. the complaint,
61

examination of the complainant and his witnesses, if present,
or report of inquiry, if any), thinks that there is a prima facie
case for proceeding in respect of an offence, he shall issue
process against the accused.
52. A wide discretion has been given as to grant or
refusal of process and it must be judicially exercised. A person
ought not to be dragged into court merely because a complaint
has been filed. If a prima facie case has been made out, the
Magistrate ought to issue process and it cannot be refused
merely because he thinks that it is unlikely to result in a
conviction.
53. However, the words "sufficient ground for
proceeding" appearing in Section 204 are of immense
importance. It is these words which amply suggest that
an opinion is to be formed only after due application of
mind that there is sufficient basis for proceeding against
the said accused and formation of such an opinion is to
be stated in the order itself. The order is liable to be set
aside if no reason is given therein while coming to the
conclusion that there is prima facie case against the
accused, though the order need not contain detailed
reasons. A fortiori, the order would be bad in law if the
reason given turns out to be ex facie incorrect."

39. A similar view has been taken by this Court in the
case of Ashoke Mal Bafna (supra).
40. In the present case, leaving aside there being
no reasons in support of the order of the issuance of
process, as a matter of fact, it is clear from the order of
the learned Single Judge of the High Court, that there
was no such order passed at all. The learned Single
Judge of the High Court, based on the record, has
presumed that there was an order of issuance of
process. We find that such an approach is unsustainable
in law. The appeal therefore deserves to be allowed."

(Emphasis supplied)

The Apex Court in the case of SANJAY DUTT V. STATE OF

HARYANA14 has held as follows:

14
2025 SCC OnLine SC 32
62

"15. When jurisdiction is exercised on a complaint
petition filed in terms of Section 156(3) or Section 200 of
the CrPC, the Court concerned should remain vigilant &
apply its mind carefully before taking cognizance of a
complaint of the present nature."
(Emphasis supplied)

The Apex Court, in all the aforesaid judgments, has followed the

judgment in the case of SUNIL BHARTI MITTAL V. CBI15. Since

the Three Judge Bench decision has been quoted in all the aforesaid

judgments and followed, I deem it appropriate to notice the same

at this juncture. The elucidation of the Apex Court reads as follows:

"51. On the other hand, Section 204 of the Code
deals with the issue of process, if in the opinion of the
Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding. This section relates to
commencement of a criminal proceeding. If the
Magistrate taking cognizance of a case (it may be the
Magistrate receiving the complaint or to whom it has
been transferred under Section 192), upon a
consideration of the materials before him (i.e. the
complaint, examination of the complainant and his
witnesses, if present, or report of inquiry, if any), thinks
that there is a prima facie case for proceeding in respect
of an offence, he shall issue process against the
accused.
... ... ...

15
(2015)4 SCC 609
63

mind that there is sufficient basis for proceeding
against the said accused and formation of such an
opinion is to be stated in the order itself. The order is
liable to be set aside if no reason is given therein while
coming to the conclusion that there is prima facie
case against the accused, though the order need not
contain detailed reasons. A fortiori, the order would be
bad in law if the reason given turns out to be ex facie
incorrect."

(Emphasis supplied)

26. On a coalesce of the judgments rendered by the Apex

Court as quoted hereinabove, what would unmistakably emerge is,

that the order of taking of cognizance and issuance of process

should bear application of mind. If the order issuing process to the

petitioner is seen, it does not even bear a semblance of application

of mind, let alone it taking cognizance for offences against the

husband which could not have been taken. The cognizance taken

for the offences against the petitioner is on bereft of reasons.

Therefore, on all the aforesaid counts viz.,

Delay of 9 years in registering the FIR for offences

punishable under Section 376 of the IPC;

Cognizance being taken on a final report filed by the

policemen who was admittedly not the officer in-charge of
64

the police station, as CID had not yet been declared to be

a police station under Section 2(s) of the Cr.P.C. The

notification declaring CID to be a police station has

emerged only on 12-01-2024.

The order of cognizance and issuance of process does not

bear even a semblance of application of mind and thus

would stand vitiated on account of the elucidation of the

Apex Court.

The entire proceeding against the petitioner stands vitiated.

Permitting further trial, in the case at hand, would undoubtedly

become an abuse of the process of the law and result in miscarriage

of justice. I therefore, deem it appropriate to exercise my

jurisdiction under Section 482 of the Cr.P.C. and take off the

Damocles sword, hanging on the head of the petitioner.

27. For the aforesaid reasons, the following:

ORDER

      (i)     Writ Petition is allowed.
                                     65



        (ii)    Proceedings in C.C.No.26533 of 2018 pending before I

Additional Chief Metropolitan Magistrate, Bengaluru concerning charge sheet No.06 of 2018 and all further proceedings thereto stand quashed qua the petitioner.

(iii) The observations made in the course of the order are restricted to the consideration of the case of the petitioner alone and cannot be paraphrased to any other accused. The trial, if any pending against any other accused, shall be considered by the competent Court without being influenced by the observations or the findings in the case at hand.

Sd/-

(M.NAGAPRASANNA) JUDGE BKP CT:MJ

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