Karnataka High Court
Ramaiah vs Lakshmana Gowda on 18 September, 1995
Equivalent citations: ILR1995KAR2967
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
ORDER
Vishwanath, J
1. Heard. In this Criminal Petition the order dated 7.7.1990 passed by the learned II Addl. C.M.M., Bangalore, ordering registration of the case and issue of process against the petitioner-accused has been challenged. As per the impugned order the learned Magistrate has taken cognizance of the offence. The petitioner-accused has prayed that the entire proceedings in C.C.No. 3856 of 1990 snould be quashed.
2. The complainant-respondent has filed a private complaint against the petitioner-accused alleging that though petitioner is not the son of Javaraiah (who died in 1971) has claimed all the retirement benefits due from the employer of Javaraiah on the ground that he is the son of Javaraiah.
3. It is seen from the records that on 3.8.1989 the learned Magistrate recorded the sworn statement of the complainant and heard arguments. On 21.8.1989 the learned Magistrate has passed the order to the effect that he has perused the sworn statement of the complainant and the documents and that it was necessary to hold, an investigation. So he referred the complaint to the Circle Inspector of Police, Chamarajpet.
4. Having regard to the sworn statement it was improper on the part of the learned Magistrate to refer the case for investigation to police under Section 202 Cr.P.C. The law in this regard has been laid down by this Court in NAGAWWA v. VEERANNA SHIVALINGAPPA KOUJALAGI AND ORS1. 1975 (2) KLJ 2. This Court held -
"The Magistrate should be held to have taken cognizance of the case, as under Section 202 Cr.P.C. the sworn statement of the complainant cannot be recorded unless the condition precedent, namely, taking cognizance was fulfilled. Having taken cognizance and commenced the inquiry himself the Magistrate was debarred under Section 202 Cr.P.C. from referring any portion of it to a Police Officer to make an inquiry or investigation and report."
In view of the law laid down by this Court, the learned Magistrate was debarred from referring the matter for investigation under Section 202 Cr.P.C.
5. The learned Magistrate has failed to notice another irregularity. From the complaint it is clear that the complainant has not furnished any list of witnesses. Even then the learned Magistrate has ordered issue of process to the accused. It has been laid down by this Court in KESHAVA MURTHY v. BEERAIAH , that in view of. Section 204(2) Cr.P.C. the learned Magistrate cannot issue summons or process to the accused unless a list of witnesses is filed along with the complaint.
6. From the facts stated above it is clear that the learned Magistrate has committed two irregularities and they have to be corrected by this Court. Accordingly, I pass the following:
ORDER:
(i) The learned Magistrate is directed to ignore the police report and he is directed to proceed from the stage he took cognizance of the offence.
(ii) The learned Magistrate is directed to issue direction to complainant to furnish the list of witnesses and then to issue fresh summons if he makes up his mind to take cognizance of the offence and not to dismiss the complaint
7. Criminal Petition is allowed as stated herein.