Karnataka High Court
Masooda vs The State on 13 March, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO. 1080/2018
BETWEEN:
MASOODA
W/O LATE ABDUL HAMEED
AGED ABOUT 66 YEARS
R/AT MASOODA, 4TH CROSS
LAXMINDRA NAGAR
MANIPAL, KUNJIBETTU
UDUPI TALUK & DISTRICT-575 056.
... PETITIONER
(BY SRI. LETHIF B, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY MANGALORE EAST POLICE
STATION, D.K. DISTRICT
REP. BY SPP, HIGH COURT
BUILDING,
BANGALORE-560 001.
2. ASHOK G
S/O GANAPATHI RAO
AGED ABOUT 61 YEARS
PRO: PUJA CURTAINS
GROUND FLOOR, HAMEED
COMPLEX, NEAR GOKARNATH
TEMPLE, ALAKE,
MANGALORE
D.K. DISTRICT-575 001.
... RESPONDENTS
(BY SRI. CHETHAN DESAI, HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUAHS THE ENTIRE
PROCEEDINGS AGAINST THE PETITIONER IN
C.C.NO.38/2017 ON THE FILE OF THE II A.C.J.M,
MANGALORE, D.K., DISTRICT FOR THE OFFENCE P/U/S
379, 380, 427, 447, 448, 453, 456 OF IPC R/W 120B OF IPC
INSOFAR AS THE PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner has been arraigned as accused No.1 in C.C.No.38/2017 which has been registered by the Mangalore East Police Station for the offences punishable under Sections 379, 380, 425, 427, 447, 448, 453, 456 read with Section 120B IPC.
2. A private complaint came to be lodged by second respondent alleging that when he was carrying on business at Alake, Gokarnatha temple near Hammed Complex during the period between 14.01.2012 to 15.01.2012, accused persons had forcibly entered the premises, stolen the properties belonging to him and had destroyed properties worth Rs.1 lakh. It was his 3 grievance that inspite of approaching the jurisdictional police to lodge a complaint, they did not receive the same and as such, he filed a private complaint under Section 200 Cr.P.C. On receiving the said complaint, learned Magistrate has referred the same for investigation under Section 156(3) by the jurisdictional Police and they in turn have registered FIR in Crime No.23/2012 against the petitioner for the offences punishable under Sections 379, 380, 425, 427, 447, 448, 453, 456 read with Section 120B IPC. After conducting investigation, 'B' report came to be filed on 11.07.2012 and this was objected to by the second respondent herein by filing a protest memo on 28.12.2012. Thereafter, sworn statement of the complainant came to be recorded and 22 documents were got marked as per Ex.P-1 to P-22. Learned Magistrate, by order dated 21.01.2017 has taken cognizance of the offences punishable under Sections 379, 380, 425, 427, 447, 448, 453, 456 read with Section 120B IPC against accused Nos.1 to 3 and has ordered issuance of process to the petitioner-accused. 4 Hence, petitioner-accused No.1 is before this Court for quashing of entire proceedings contending interalia that learned Magistrate has not followed the procedure prescribed under Section 201 to 204 Cr.P.C. and has committed an error by taking cognizance without passing an order on 'B' report, since said 'B' report contains material to establish that there was original suit namely O.S.No.165/2013 (suit for possession filed by accused No.1) which had been decreed in favour of accused No.1 and without considering the fact that present criminal proceedings initiated by second respondent is a counter blast to the Civil suit filed by petitioner and learned Magistrate has taken cognizance after lapse of six years from the date of filing of 'B' report and as such petitioner have sough for said proceedings being quashed.
3. Per contra, learned HCGP would support the case of the prosecution and contend there is no infirmity in the order under challenge and prays for dismissal of the petition.
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4. Having heard the learned Advocates appearing for parties and on perusal of material on record, it would disclose that complainant was a tenant under the accused persons; on account of an attempt having been made by the accused persons to dispossess the complainant from the shop forcibly which was in his occupation as a tenant and without due process of law, complainant approached the jurisdictional police seeking protection both against property and himself. It was the grievance of the complainant that on account of non-registration of the complaint, he had to approach the Civil Court to seek for temporary injunction to restrain the accused persons from dispossessing him from the shop which was in his occupation. He has also alleged in the complaint lodged before the jurisdictional Magistrate under Section 200 Cr.P.C. that in the intervening night of 14.01.2012 & 15.01.2012, after he instituted the suit O.S.No.28/2012 on 10.01.2012, accused persons had broke open the lock of the shop and had removed certain valuables from the shop 6 premises. Complaint has been lodged within 15 days from the date of alleged incident and complaint came to be presented before jurisdictional Court on 01.02.2012 at 1.00 p.m. as is evident from the order sheet. After perusing the said complaint, jurisdictional Magistrate has referred the matter for investigation by the SHO, East Police Station, Mangalore who is stated to have conducted investigation and submitted a report on 11.07.2012. Immediately thereafter complainant has filed the protest memo or objections to the 'B' report on 28.12.2012 and has tendered his sworn statement by getting marked 22 documents as Exs.P-1 to P-22. Learned Magistrate after examining the contents of the complaint presented by the complainant, evaluating the sworn statement of complainant as also 22 documents which were produced by him and the ' B' report which was available on file, has opined that material produced by the complainant is sufficient to attract the ingredients of the offences under Sections 379, 380, 425, 427, 447, 448, 453, 456 read with Section 120B 7 IPC. Hence, on taking cognizance summons has been issued.
5. Sri B.Lethif, learned Advocate appearing for petitioner - accused No.1 has relied upon the judgment of this Court in the case of G.S.P.VEERAREDDY vs THE STATE THROUGH HORTI Police Station (Crl. Petition No. 201181/2015 dated 15.03.2016) whereunder co-ordinate Bench of this Court, applying the contours of Section 200 to 204 Cr.P.C., has held thus:
"6. Sections 200 to 204 of Cr.P.C., contemplate the procedure to be followed by the learned Magistrate when a private complaint is filed.
When the protest petition is filed by way of a complaint which contain allegations against the accused persons sufficient to constitute an offence for the purpose of taking cognizance, then only the Court has to take cognizance and thereafter, it shall examine upon oath of the complainant and the witnesses present. Thereafter, Section 203 of Cr.P.C., bestows responsibility on the learned Magistrate to consider the contents of the protest petition and the statement on oath of the complainant and the witnesses and then, the learned Magistrate has to form an opinion, if 8 there is no sufficient ground for proceeding, then, he shall dismiss the complaint and in every such case, he shall briefly record his reasons for doing so. After passing the stage of Section 203 of Cr.P.C., under Section 204 of Cr.P.C., the question of issuance of process would arise. Here also, under Section 204 of Cr.P.C., in the opinion of the learned Magistrate if there is sufficient ground for proceeding against the accused then, the Court can issue summons to the accused to secure him for the purpose of proceeding against the accused.
What is contemplated under Sections 203 and 204 of Cr.P.C., is that the learned Magistrate is duty bound to consider the contents of the complaint or the protest petition and the averments made therein and also sworn statements of witnesses, and then form an opinion as to whether there is sufficient ground to proceed against the accused or there are no grounds to proceed against the accused. This cannot be said to be an idle formality. Learned Magistrate has to apply his judicious mind so far as the contents of the protest petition and sworn statements of the complainant and witnesses and he shall form an opinion with regard to existence of any grounds to proceed against the accused."
6. As noticed herein above, as per Sections 203 & 204 Cr.P.C., Magistrate is duty bound to consider the 9 contents of the complaint or protest memo as also averments made therein and also the sworn statement of the witnesses and then he is required to form an opinion as to whether there is sufficient ground to take cognizance and issue process to the accused person or there is no ground to proceed against accused. Sum and substance of Sections 203 & 204 Cr.P.C. is that learned Magistrate cannot in a perfunctory manner take cognizance or in other words, there should be judicial application of mind on the basis of material available on record for taking cognizance and then he has to issue process. It is trite law that order taking cognizance of an offence need not be elaborate or lengthy order. If it can be discerned from the order taking cognizance that there is judicial application of mind to the material facts which were available before him, it would meet the criteria prescribed under Sections 203 & 204 Cr.P.C. and it is this process which has been meticulously undertaken by the learned Magistrate in the instant case as can be seen from the order dated 21.01.2017 while taking cognizance and issuing process to the 10 petitioner and other two accused persons. There is no infirmity whatsoever in the order dated 21.01.2017 calling for interference at the hands of this Court. There are no other good ground to entertain this petition. Hence, it is hereby rejected.
In view of rejection of this criminal petition, I.A.1/2018 for stay does not survive for consideration. Accordingly, it is rejected.
SD/-
JUDGE *sp