Karnataka High Court
B R Ramachandra vs State By Mandya Rural Police on 13 August, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION No. 5465 OF 2011
BETWEEN:
B.R. Ramachandra,
S/o. Late Ramegowda,
Aged about 61 years,
R/of No.685, Siddeshwara Nilaya,
Yamuna Marga,
Cauvery Nagar,
Mandya City - 571 401. ...Petitioner
(By Sri. H.B. Chandrashekar, Advocate)
AND:
1. State by Mandya Rural Police.
2. Shashidhar,
S/o Late Boraiah,
Aged about 44 years,
R/of B. Gowdgere Village,
Kasaba Hobli,
Mandya Taluk. ...Respondents
(By Sri. M. Divakar Maddur, HCGP for R1;
Sri. Sandesh J. Chouta, Adv. for R2)
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This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings initiated
in C.C.No.297/2011 insofar as this petitioner is
concerned which is pending on the file of the JMFC,
Mandya.
This Criminal Petition coming on for Final hearing
this day, the Court made the following:-
ORDER
The present petition has been filed by accused No.1/petitioner praying this Court to quash the entire proceedings initiated in C.C.No.297/2011 pending on the file of JMFC, Mandya, by allowing the petition.
2. The brief facts of the case as averred in the petition are that petitioner and 2nd respondent are acquainted with each other. 2nd respondent for his legal necessity requested the petitioner to lend loan of Rs.7,50,000/-. As the 2nd respondent was known, petitioner lent loan as sought by him. 2nd respondent executed an On demand Pronote and consideration receipt in favour of petitioner on 20.08.2008. Though 2nd respondent took time for making payment with 3 interest, but he failed. Without there being any alternative, petitioner filed a suit in O.S.No.6/2009 and subsequently the said suit was also dismissed. It is the further case of the petitioner that having not satisfied, the 2nd respondent again filed a private complaint before JMFC, Mandya, in PCR No.13/2010 against the petitioner, as per document no.9 and has also given the sworn statement. On 29.09.2010, the learned Magistrate referred the matter to the 1st respondent, 1st respondent after investigation filed the charge-sheet against the petitioner and others and the learned Magistrate registered a case in C.C.No.297/2011 and took cognizance and issued summons to the petitioner to appear before him. Challenging the same, the petitioner is before this Court.
3. I have heard Sri. H.B.Chandrashekar, learned counsel appearing for petitioner and Sri. M. Divakar Maddur, learned HCGP appearing for 1st 4 respondent and Sri. Sandesh J. Chouta, learned counsel appearing for 2nd respondent.
4. It is the contention of the learned counsel appearing for petitioner that the learned Magistrate has committed a serious error in referring the matter to the police for investigation. When once Magistrate has taken cognizance and without there being any reasons and without there being any request by anybody, he referred the case for investigation to 1st respondent and the 1st respondent investigated the case and filed the charge-sheet against the accused. He further submitted that the records said to have been produced clearly goes to show that the Magistrate has referred the complaint to the police under Section 156 (3) of Crl.P.C. for investigation after taking the cognizance and that when once he takes the cognizance and records the sworn statement then he will not be having any jurisdiction to refer the matter for investigation by putting the clock back. He further submitted that the said procedure 5 adopted by the Magistrate is not sustainable in law. In order to substantiate his contention, he also referred to the decision held by this Court in Crl.P.No.4377/2012 dated 06.09.2013 between B.C.Suresha and Sumithra. On these grounds he prayed to allow the petition by quashing the proceedings.
5. Per contra, the learned HCGP vehemently argued by contending that the civil suit which was filed by the petitioner has been dismissed and thereafter the complaint was filed for further recording of the sworn statement. The matter is referred under Section 156(3) of Cr.P.C that it is not an illegality but is purely an irregularity. He further submitted that there is prima- facie material as against the accused No.1/petitioner, the Court below has rightly applied it's mind and has taken cognizance. There are no good grounds to quash the proceedings. So also the learned counsel appearing for 2nd respondent by justifying the arguments of the 1st 6 respondent he also further submitted that there are no good grounds made out by the petitioner so as to quash the proceedings. If at all he is having any grievance, the said grievance can be set right only before the jurisdictional Court and not by virtue of filing a petition under Section 482 of Cr.P.C. On these grounds he prayed to dismiss the petition.
6. I have gone through the submissions made by both the learned counsel appearing for the parties and I have also gone through the records which have been submitted by the learned counsel for the petitioner.
7. As could be seen from the records, it indicates that some dispute arouse regarding the taking of the loan and the execution of the pronote and consideration receipt and a suit was filed in this behalf and subsequently a private complaint also came to be filed in PCR No.13/2010. As could be seen from the 7 records produced as noticed hereinabove by the learned counsel for the petitioner along with the petition, it discloses that after filing of the private complaint-PCR No.13/2010, the complainant was present on 03.02.2010 and the case was posted for enquiry on 08.02.2010 and on that date also the complainant was present and again the case was adjourned to 01.03.2010 and on that date E.P. filed and the case was posted for enquiry on 16.04.2010 and on that date the complainant was present and sworn statement was partly recorded and again the case was adjourned to 20.04.2010 for recording the further statement of the complainant and on that date the complainant was present and the case was posted for further recording of sworn statement of the complainant on 07.05.2010 and on that date again at the same stage it was adjourned to 24.05.2010, 05.06.2010 and 12.08.2010 and on 07.09.2010 the further statement of the complainant was recorded and he had got marked 06 documents 8 Ex.C1 to C6 and the case was posted for orders on 29.09.2010 and on that date the Court passed the order as mentioned below:
"Acting u/s 156(3) of Cr.P.C., office is directed to refer the matter to jurisdictional police station for investigation.
Concerned I.O. is to investigate the matter and submit his report on or before
30.11.2010."
Subsequently, a report was filed by the Police and the learned Magistrate took cognizance and the case was made over to another Court for disposal in accordance with law. Charge-sheet was submitted by PSI, Mandya, for the offences punishable under Sections 209, 403, 464 and 465 of IPC against the accused persons and on 30.04.2011 Court below took cognizance and issued summons to accused Nos.1 to 4 returnable by 26.06.2011. Assailing the same, the petitioner is before this Court.
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8. By going through the said procedure adopted by the Magistrate, it indicates that the Magistrate has not yet taken cognizance when he issued the order dated 29.09.2010. Though he recorded the sworn statement of the complainant and got marked Ex.C1- C6, in the order sheet nowhere it discloses regarding having taken any cognizance and thereafter the matter was referred to the police and the police after investigation has filed the charge-sheet against the accused. Be that as it may, for the purpose of brevity I want to quote Section 190 of Cr.P.C., which reads as under:
"190. Cognizance of offences by Magistrates -
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;10
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
And also Section 200 of Cr.P.C. reads as under:
"200. Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -
(a) if a public servant acting or purporting to act in the discharge of his official 11 duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
On close reading of these Sections it discloses that when a complaint is being filed before the Magistrate under Section 200 of Cr.P.C. he has got both powers either to refer the matter under Section 156(3) of Cr.P.C.
to investigate the said case by police and file charge-
sheet or he can also take cognizance and proceed in accordance with the provisions of the Chapter 16 of Cr.P.C. As could be seen from the records, the Magistrate has recorded the statement of the complainant and nowhere he has specifically mentioned that he has taken the cognizance and thereafter he has 12 referred the matter under Section 156(3) of Cr.P.C. I am conscious of the fact that if a Magistrate applies the mind to the said facts and circumstances of the case that itself suffice the point of taking the cognizance as contemplated under Section 190 of Cr.P.C. But, in the instant case on hand nowhere it discloses the fact that he has applied his mind and has taken cognizance in this behalf. So in that light, the order passed by the Court below on 29.09.2010 is not an illegal or irregular order.
9. Be that as it may, even assuming that if the Magistrate has taken cognizance and after recording the evidence he has referred the matter to the jurisdictional police for investigation and to give the report, the Magistrate has used the word acting under Section 156(3) of Cr.P.C., directed the office to refer the matter to the jurisdictional police for investigation and to submit his report. But, the word used may be to 13 investigate the matter and submit the report. But, the said report if it is submitted under Section 173 of Cr.P.C it will come within the purview of Section 202 of Cr.P.C. This proposition of law has been elaborately discussed by the Hon'ble Apex Court in the case of Jamuna Singh and others Vs. Bhadai Shah reported in AIR 1964 SC 1541, which reads as under:
"6. The Code does not contain any definition of the words "institution of a case". It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts - that is, facts constituting the offence - made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or 14 suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken by High Court of offences upon a commitment made to it in the manner provided in the Code.
(7) An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report.
(8) To decide whether the case in which the appellants were first acquitted and thereafter convicted was instituted on a complaint or not, it is necessary to find out whether the Sub-
Divisional Magistrate, Gopalganj, in whose Court the case was instituted, took cognizance of the offences in question on the complaint of Bhadai Sah filed in his Court on November 22, 1956 or 15 on the report of the Sub-Inspector of Police dated December 13, 1956. It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under S.156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R.Chari v. State of U.P., 1951 SCR 312: (AIR 1951 SC 207) and again in Gopal Das v. State of Assam, AIR 1961 SC 986.
(9) In the case before us the Magistrate after receipt of Bhadai Shah's complaint proceeded to examine him under S. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under S. 200 of the Code of Criminal Procedure 16 puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by S. 200 the Magistrate could have issued process at once under S. 204 of the Code of Criminal Procedure or could have dismissed the complaint under S. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under S. 202 of the Code of Criminal Procedure. That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint." If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under S.203 of the Code of Criminal Procedure.
17(10) We find that in the case before us the Magistrate after completing the examination under S. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words:
"Examined the complaint on s. a. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12-12-56."
If the learned Magistrate had used the words "for investigation" instead of the words "for instituting a case" the order would clearly be under S. 202 of the Code of the Criminal Procedure. We do not think that the fact that he used the words "for instituting a case" makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under S. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under S. 202 of the Code of Criminal Procedure and not under S. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under S. 200 of the Code of Criminal 18 Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under S. 202 of the Code of Criminal Procedure and not under S. 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words "for instituting a case" in this order of November 22, 1956 he was actually taking action under S.202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act.
(11) The fact that the Sub-Inspector of Police treated the copy of the petition of complaint as a first information report and submitted "charge- sheet" against the accused persons cannot make any difference. In the view we have taken of the order passed by the Magistrate on November 22, 1956, the report made by the police officer though purporting to be a report under S. 173 of the Code of Criminal Procedure should be treated in law to be a report only under S. 202 of the Code of Criminal Procedure.
(12) Relying on the provisions in S. 190 of the Code that cognizance could be taken by the 19 Magistrate on the report of the police officer the learned counsel for the appellants argued that when the Magistrate made the order on 22-11- 1956 his intention was that he would take cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was actually received in the shape of a charge-sheet under S. 173 of the Code, after December 13, 1956. The insuperable difficulty in the way of this argument, however, is the fact that the Magistrate had already examined the complainant under S. 200 of the Code of Criminal Procedure. That examination proceeded on the basis that he had taken cognizance and in the face of this action it is not possible to say that cognizance had not already been taken when he made the order "to Sub- inspector, Baikunthpur, for instituting a case and report by 12-12-56."
(13) Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officer's report was received. There is thus no escape from the conclusion that the case was instituted on 20 Bhadai Sah's complaint on November 22, 1956 and not on the police report submitted later by the Police Sub-Inspector, Baikunthpur. The contention that the appeal did not lie under S. 417(3) of the Code of Criminal Procedure must therefore be rejected.
(14) The next contention raised on behalf of the appellants is that the High Court was not justified in interfering with the order of acquittal passed by the learned Assistant Sessions Judge. The reasoning on which the learned Assistant Sessions Judge rejected the evidence of the prosecution witnesses and the reasons for which the learned Judges of the High Court were of opinion that there was no real effort by the learned Sessions Judge to assess the credibility of the evidence have been placed before us. It is quite clear that the High Court examined the matter fully and carefully and on a detailed consideration of the evidence came to the conclusion that assessment of the evidence had resulted in a serious failure of justice. The principles laid down by this Court in a series of cases as regards interference with orders of acquittal have been correctly followed by the High Court. There is nothing, therefore, that 21 would justify us in re-assessing the evidence for ourselves. As relevant parts of the evidence were however placed before us, we think it proper to state that on a consideration of such evidence we are satisfied that the decision of the High Court is correct.
(15) As a last resort the learned counsel for the appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void. As we have already pointed out, the order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under S. 202 of the Code of Criminal Procedure. So, the argument that the learned Magistrate acted without jurisdiction cannot be accepted. At most it might be said that in so far as the learned Magistrate asked the police to institute a case he acted irregularly. There is absolutely no reason, however, to think that irregularity has resulted in any failure of justice. The order of conviction and sentence passed by the High Court cannot be reversed or altered on account of that irregularity."
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10. In the said decision quoted supra, the Hon'ble Apex Court has specifically observed that the order of the Magistrate directing the appellant to institute the case and to send the report should properly and reasonably be read as one made under Section 202 of Cr.P.C. So in that light, the contention of the learned counsel appearing for the petitioner that, it is illegal is not sustainable. But the facts and circumstances clearly goes to show that it is only an irregularity not an illegality as noticed above so as to result any failure of justice. Though the learned counsel for the petitioner has quoted the decision of this Court in the case of B.C.Suresha, stated supra wherein this Court has specifically observed that:
"Having once taken the cognizance and recorded the statement of the complainant, the learned Magistrate should not have reverted back to exercise the power under Section 156(3) of Cr.P.C. He was required to proceed only in accordance with the 23 provisions contained in Chapter XV of Cr.P.C. He could not have put the clock back."
But with all respect that this particular proposition of law laid down by the Hon'ble Apex Court has not been brought to the notice of the said Court and in that context, the said observations might have been observed by the Court and the said proposition of law laid down by my co-ordinate bench is not applicable to the present facts and circumstances of the case on hand.
11. Keeping in view the above facts and circumstances of the case, I am of the considered opinion that the petitioner has not made out any case to hold that there is a case so as to quash the proceedings. Hence, the petition stands dismissed.
Sd/-
JUDGE Sv/-