Karnataka High Court
Thippeswamy G vs State Of Karnataka on 14 June, 2013
Author: H.S.Kempanna
Bench: H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL PETITION NO.3996/2009
BETWEEN:
1. G.THIPPESWAMY
S/O. SANNASURAIAH
AGED ABOUT 60 YEARS
CANDIDATE OF BJP PARTY
NERLAGUNTE VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT
2. S.CHANDRANNA
S/O. SANNA SURAPPA
AGED ABOUT 46 YEARS
OCC: AGRICULTURE
NERLAGUNTE VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT ... PETITIONERS
(BY SRI.P.PRASANNA KUMAR, ADV., FOR
SRI.C.H.JADHAV, ADV.)
AND:
STATE OF KARNATAKA
REPRESENTED BY
MOLAKALMURU POLICE
CHITRADURGA DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
2
BANGALORE - 560 001 ... RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, HCGP)
THIS PETITION IS FILED UNDER SECTION 482
CR.P.C., PRAYING TO SET ASIDE THE ORDER
DT:03.07.2009 IN C.C.NO.350/2008 PASSED BY THE
CIVIL JUDGE (JR.DN.) AND JMFC, MOLAKALMURU,
THEREBY DISMISSING THE APPLICATION FILED BY
THE PETITIONERS U/S 258 OF CR.P.C. AND
CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS
IN C.C.NO.350/3008 ON THE FILE OF THE CIVIL
JUDGE (JR.D.N) AND JMFC, MOLAKALMURU.
THIS PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners in this petition have challenged the order dated 03.07.2009 passed in C.C.No.350/2008 by the JMFC, Molakalmuru, dismissing his application filed under Section 258 of Cr.P.C.
2. The respondent-police submitted a final report against the petitioners alleging that they have committed offences under Sections 171(c), 341, 188 of IPC, R/w 123 of Representative of Peoples Act. After the final report came to be filed on appearance of the petitioners before the le arned Magistrate, they filed an 3 application under Section 258 of Cr.P.C. and contended that the Court could not have taken the cognizance for the offences alleged in view of the bar provided under Section 195 of Cr.P.C, in as much as, the complaint has not been made by the Public Servant to the Magistrate either in writing or oral. The learned Magistrate on hearing the counsel for the petitioners and learned Assistant Public Prosecutor attached to his Court, dismissed the said application.
3. The petitioners being aggrieved of the said order are before this Court seeking to set aside the same and consequently, quash the proceedings pending on the file of learned Magistrate.
4. The learned counsel appearing for the petitioners vehemently contended that the offences for which cognizance has been taken by the learned Magistrate is under Section 171(c), 341, 188 of IPC R/w 123 of Representative of Peoples Act, 1951. In order to take cognizance for the offence under Section 188 of 4 IPC, the complaint ought to have been filed either in writing or orally by a public servant before the Jurisdictional Magistrate. In this case, the cognizance of the offences alleged has been taken on the basis of police report. In view of what is contemplated under Section 195 of CR.P.C., the learned Magistrate could not have taken the cognizance of the offences alleged and therefore, the order rejecting the application cannot be sustained and hence it be set aside and consequently, the proceedings before the Magistrate also be quashed.
5. Per contra, the learned High Court Government Pleader submitted the first information in the case has been filed by the Thasildar/Taluka Executive Magistrate for the offences under Sections 143, 147, 171(c) of IPC R/w Section 123 of Representative of Peoples Act. No offence has been alleged in first information for the offence under Section 188 of IPC. The police at the time of filing the charge sheet have added Section 188 of IPC also. He fairly submitted that insofar as taking cognizance for the 5 offence under Section 188 of IPC by the learned Magistrate, cannot be sustained in view of the bar under Section 195 of Cr.P.C. However, insofar as other offences are concerned, the bar under Section 195 of Cr.P.C. does not come into play and therefore, to that extent of taking cognizance under Section 188 of IPC be set aside and the petitioners put on trial for the other offences alleged for which there is no bar for taking cognizance.
6. At the time of arguments, a copy of the first information filed by the T.E.M. was placed before me. That discloses the Taluka Executive Magistrate of Molakalmuru Taluk is the first informant in the case. On his information the respondent-police have registered a case in Cr.No.58/2008 for the offences under Sections 143, 147, 171(c) of IPC R/w 123 of Representative of Peoples Act, 1951. The first information report does not disclose any case having registered for the offence under Section 188 of IPC. It is not the law that after investigation the police cannot 6 include any other offence which has been committed by the accused in the case, if the investigation reveals that they have committed such offences. As rightly pointed out by the learned counsel for the petitioners in order to take cognizance for the offence under Section 188 of IPC, the complaint should have been filed by the competent authority before the Jurisdictional Magistrate either orally or in writing. In this case, admittedly, the first information is filed by the Taluka Executive Magistrate before the police and not before the Jurisdictional Magistrate. The Trail Court in view of the bar envisaged under Section 195 of IPC, could not have taken cognizance for the offence under Section 188 of IPC as there was no complaint in writing or oral before him. The first information that is filed by the Taluka Executive Magistrate is for the offences under Sections 143, 147, 171(c) of IPC R/w 123 of Representatives of Peoples Act, 1951. In this particular case, the police have included Section 188 of IPC without there being any material for the same. At the time of taking cognizance, the 7 Magistrate is empowered to take cognizance for a particular offence if the final report makes out the case for said offences and reject taking of cognizance for other offences. No doubt, in this case as already pointed out the learned Magistrate has taken the cognizance for the offence under Section 188 of IPC, which he could not have taken in view of the bar envisaged under Section 195 of Cr.P.C. and as there was no material for the offence u/s.188 of IPC. To that extent as rightly submitted by the counsel for the petitioners, the learned Magistrate could not have taken cognizance for the said offence. Therefore, it will have to be set aside. However, insofar as the other offences are concerned, the bar envisaged u/s.195 of Cr.P.C. does not come into play. The learned counsel for the petitioners vehemently contended that the court at the stage of taking cognizance cannot bifurcate the offences and take cognizance as it is their case that the accused have jointly committed the offences alleged. Therefore, the entire proceedings be quashed. 8
I do not agree with the said submission of the counsel for the petitioners. If the Court finds the cognizance of the offences for a particular offence is barred by law, it has got every power to set aside to that extent and allow the trial to proceed in respect of other offences for which the Court can take cognizance. In view of the aforementioned facts, the learned Magistrate was not right in taking cognizance for the offence under Section 188 of IPC. To that extent, the order of the trial Magistrate taking cognizance for the said offence deserves to be set-aside. In that view of the matter, the order of the trial Magistrate taking cognizance for the offence under Section 188 of IPC cannot be sustained, accordingly, it is set aside and the application filed by the accused under Section 258 of Cr.P.C. is partly allowed accordingly. However, insofar as cognizance taken for other offences alleged in the charge sheet is left undisturbed. The trial Magistrate shall proceed with the trial for the said offences in accordance with law.
Accordingly, the petition is disposed of.
Sd/-
JUDGE HJ