Karnataka High Court
Sri N Dharam Singh, Mp vs The State Of Karnataka on 27 August, 2013
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
Dated this the 27TH day of August, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.V. PINTO
Criminal Petition No.6054/2010
BETWEEN:
Sri N. Dharam Singh, MP
S/o Late Narayan Singh
Aged about 75 years
No.E-10-1053, N. V. Complex
Station Road, N.V. Layout
Gulbarga-585 103 ...PETITIONER
(By Sri H.S.Chandramouli and Sri K.A.Chandrashekara, Advs.,)
AND:
The State of Karnataka
by the Police of
Bagdal Police Station
Bidar District ...RESPONDENT
(By Sri Sanjay A.Patil, Addl. SPP)
This Criminal Petition filed under Section 482 Cr.P.C.,
praying to set aside the order of issuance of process dated
10.5.2010 passed by the II Addl. JMFC-II Court, Bidar in
C.C.No.643/10, pending trial for the offence punishable under
Sections 171(E) & 133 of Representation of People Act and to
quash the entire proceedings.
This Criminal Petition coming on for Admission this day,
the Court made the following:
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ORDER
This petition is filed seeking to quash the proceedings dated 10.5.2010 in C.C.No.643/2010 on the file of II Addl. JMFC.,-II Court, Bidar registered for the offences under Section 171 (E) IPC read with Section 133 of Representation of People Act.
2. The said case was registered against the petitioner and others on the basis of a complaint filed by the Sub Inspector of Police, Bagdal Police Station on 23.4.2009 for the offences under Section 171 (E) IPC read with Section 133 of Representation of People Act. It is alleged in the complaint that on 23.4.2009, when the Complainant was on patrolling duty in Bagdal Police Station limits at about 7.05 a.m. hours he received information that some people are carrying cash in connection with the election of the petitioner to the Parliamant and hence when they conducted a raid, they found that some persons were riding the motor cycle bearing registration No.KA-32-R-3074 and when 3 intercepted it was found that a sum of `6,000/- was transported without any permit or permission in violation of the Model Code of Conduct. When questioned it was revealed that the said cash was taken for distributing among the voters on behalf of the petitioner, who were a candidate in that Constituency. Hence, a case in Crime No.92/2009 was registered on the suo motu complaint on the Sub Inspector of Police. After completion of investigation, a charge sheet came to be filed for having committed the aforesaid violations against the petitioner and two others and the same is numbered as C.C.No.316/2009 on the file of Prl. Chief Judicial Magistrate at Bidar. The learned Magistrate on receipt of the above charge sheet took cognizance of the offence by order dated 29.7.2009 and issued process against him. Subsequently, the matter was transferred to the II Addl. JMFC-II Court, Bidar and numbered as C.C.No.643/2010. It is these proceedings, which is challenged by the petitioner.
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3. Sri H.S.Chandramouli, learned Counsel for the petitioner relying on the decision reported in ILR 2000 KAR 4773 in the case of M/s. Vijaya Bank and Another v. State by the Labour Enforcement Officer, submitted that the order impugned in this case of taking cognizance by the Magistrate depicts total non-application of mind by the learned Magistrate in that firstly, the order is passed in a printed form and the gaps are filled up by the CMO of the Court whereas the learned Magistrate has only signed the said order by fixing the date of appearance of the accused therein as 6.10.2009. He submits that the name of the petitioner himself is not found in the said order sheet and the order does not indicate that the Magistrate has applied his mind to the facts of the case as no facts are mentioned in the said order. Hence, he submits that the proceedings pursuant to the order taking cognizance deserves to be quashed.
4. Sri Sanjay A. Patil, learned Addl. SPP on the other hand submits that the learned Magistrate while 5 taking cognizance of the offence need not in so many words describe the offence committed by the accused. It is enough if he takes note of the offences alleged against the accused. The very fact that it is mentioned in the order that the Investigation Officer has submitted the charge sheet against the accused for the offences under Section 171 (E) IPC read with Section 133 of Representation of People Act itself indicates that the learned Magistrate has adverted not only to the materials mentioned in the charge sheet but also the Section of law and it is only after application of his mind, he has taken cognizance of the offence. He therefore submits that no error or illegality has been committed by the learned Magistrate in the order taking cognizance of the offences and hence he submits that the petition is devoid of merits and the same may be dismissed.
5. The original records have been called for. I have gone through the records and I have given a careful 6 thought to the submission made by either side. The order passed by the Magistrate reads as follows:-
"PSI New Town P.S. Bidar has filed the charge sheet against the Accused No.A1, A2, A3. Alleging the offence punishable U/sec.171 ( ) IPC R/W 133 R.P.Act.
There are prima-facie materials to take cognizance of the above said offences against the Accused.
Hence cognizance is taken U/Sec.190(1),
(b) Cr.P.C. for the above said offence against the accused.
Register as C.C. Issues SS/NBW to the accused.
Call on 06/10/2009."
6. On a perusal of the order sheet, it is seen that except the name of the Police Station, the crime number and the date of filing the charge sheet and offences, the other part of the order sheet is a printed form, the name of the petitioner is no where found in the order sheet. The first part of the printed order sheet is filled up by the clerk 7 and the CMO of the Court has signed in red ink. Even in that part of the order culled out above, by which the Magistrate has taken cognizance, sections are mentioned in ink as those found above the signature of the CMO. The only part of the order sheet, which is written in the hand of the Magistrate, is the date i.e., 6.10.2009, his signature with the date as 29.7.2009. If one looks at the said order sheet, it is clear that major part of the order sheet has been written by a clerk, which has been counter signed by the CMO of the Court and therefore though it is printed as "There are prima-facie materials to take cognizance etc.,"
it cannot be said that the learned Magistrate has applied his mind to the facts of the case.
7. Taking cognizance of an offence and registering a criminal case against a citizen is an important judicial function of a Magistrate, which has got the effect of encroaching upon the liberty of a citizen. Such action on behalf of a Magistrate should be preceded by a clear application of mind to the facts of the case and a decision 8 has to be taken as to sections of law for which the citizen is sought to be summoned to appear in a criminal case. It cannot be mechanical work of a clerk or a CMO of the Court. In that view of the matter, the order dated 29.7.2009 passed by the learned Magistrate leaves much to be desired and it cannot be termed as a judicial order, which has the effect of encroaching upon the liberty of a citizen.
8. In that view of the matter, the impugned order cannot be sustained and in view of the Judgment cited above, the entire proceedings C.C.No.643/2010 on the file of II Addl. JMFC.,-II Court, Bidar registered for the offences under Section 171 (E) IPC read with Section 133 of Representation of People Act are quashed.
Sd/-
JUDGE cp*