Karnataka High Court
Sri. K S Eshwarappa vs Vinod B on 7 October, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.4927 OF 2018
BETWEEN:
Sri. K.S.Eshwarappa
S/o Late Sri Sharanappa
Aged about 70 years
R/at Jayalakshmi Nilaya
1st Main Road
Malleswara Layout
Shimoga-577201. ...Petitioner
(By Sri. A.Sampath, Advocate)
AND:
Vinod B
Aged about 54 years
S/o Late Ommen Baby
Advocate Office and Residence at
"Beena Villa" (Upstairs)
Kuvempu Road
Shimoga-577201. ...Respondent
(By Sri. M.S.Shyam Sundar, Advocate)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to 1) set aside the order dated 05.08.2017,
passed by the JMFC (II Court), Shimoga in PCR
No.260/2017, now Spl. C.C.No.135/2018, taking cognizance
of offence under Sections 499, 500 of IPC and issuing
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process against the petitioner and consequently to 2. Quash
the criminal proceedings in Spl.C.C.No.135/2018, pending
trial before the LXXXI Additional City Civil and Sessions
Judge, Bengaluru.
This Criminal Petition coming on for Admission, this
day, the Court through video conference made the
following:
ORDER
Heard learned senior counsel for petitioner and learned counsel for respondent.
2. This petition is filed under Section 482 of Cr.P.C. seeking to set aside the order dated 05.08.2017 passed by the JMFC(II Court), Shimoga in PCR No.260/2017 now pending in Spl.C.C.No.135/2018.
By the said order, the learned Magistrate has taken cognizance of the offence punishable under Sections 499 and 500 of IPC and issued summons to the petitioner/accused.
3. This petition, in my view, deserves to be allowed on the short ground that the learned Magistrate has issued process to the petitioner/accused without taking cognizance 3 of the alleged offence as required under Section 190 of Cr.P.C.
4. Perusal of the records produced along with the petition indicate that the complaint was filed before the learned Magistrate by the complainant through his Advocate Sri.KPS. The facing sheet of the order sheet reads thus:
"Complaint U/sec.200 Cr.P.C. filed by the Complainant through his Advocate Sri.K.P.S. and praying the court to take cognizance of the offence punishable U/s.500 and r/w 34 of I.P.C. against the accused and to punish the accused in accordance with law, by allowing this complaint in the ends of justice.
Sd/-
J.M.F.C. II COURT SHIMOGA."
Thereafter, case was posted on 03.07.2017, on which date, the learned Magistrate adjourned the case for recording sworn statement of the complainant. Accordingly, the sworn statement of the complainant was recorded on 08.07.2017 and thereafter, by the impugned order dated 05.08.2017, the learned Magistrate took cognizance of the 4 offence punishable under Sections 499 and 500 of IPC. The said order reads as under:
"The cognizance is taken for the offences punishable under sec. 499 and 500 of IPC.
The office is hereby directed to register criminal case against the accused in register No.III and to issue summons to the accused. Call on by 28.09.2017."
This procedure is contrary to Sections 190 and 200 of the Code of Criminal Procedure, 1973. As per the scheme of the Criminal Procedure Code, cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material before it, the Court decides to proceed against the offender against whom a prima facie case is made out. Without taking cognizance of the offence Magistrate does not derive jurisdiction to initiate proceedings or to record the sworn statement of the complainant.
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5. Section 190 of the Code of Criminal Procedure, 1973 specifically lays down that, '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;
(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.'
6. Section 200 of the Code of Criminal Procedure, 1973 lays down that, '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.'
7. These provisions, therefore, make it clear that it is only upon taking cognizance of an offence on a complaint, 6 the Magistrate can proceed to examine the complainant and his witnesses. The expression 'cognizance' has not been defined in the Code. In legal parlance it means, judicial application of mind of the Magistrate to the facts of the case mentioned in the complaint with a view to take further action thereof. The cognizance should therefore be taken at the initial stage when the Magistrate peruses the complaint, with a view to ascertain whether the commission of any offence is disclosed. Though it is not necessary to say in so many words that the Magistrate has taken cognizance of the offence, yet the records should reflect that the Magistrate has perused the complaint and satisfied himself that the complaint discloses the commission of an offence so as to proceed against the accused.
8. In the instant case, as noted above, there is absolutely nothing on record to show that the learned Magistrate has either perused the complaint or applied his mind to the facts alleged therein, before proceeding to record the sworn statement of complainant. In view of the 7 failure of learned Magistrate to comply with the mandatory requirements of Sections 190 and 200 of Cr.P.C, the impugned order is liable to be set aside. However, the breach of this procedure being a mere irregularity which could be set right by remanding the matter to the learned Magistrate for taking corrective action from that stage onwards, the petition is allowed. The impugned order dated 05.08.2017 passed by the JMFC (II Court), Shimoga, is set aside. The matter is remitted to the Special Court exclusively dealing with the cases related to elected MPs and MLAs in the State of Karnataka to proceed with P.C.R. No.260/2017 afresh from the stage of receiving the complaint, in accordance with law.
Sd/-
JUDGE bkp