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2001 DIGILAW 267 (KAR)

Dhanalakshmi v. Y. Muni Reddy

2001-03-21

K.SREEDHAR RAO

body2001
ORDER K. Sreedhar Rao, J.—The petition filed under Section 482 Code of Criminal Procedure for quashing the proceedings in P.C.R. No. 12 of 2001 on the file of the VI Additional Chief Metropolitan Magistrate, Bangalore. The Petitioners are arrayed as accused in the complaint filed before the Court in P.C.R. No. 12 of 2001 by one Muni Reddy, wherein the Petitioners are alleged to have committed the offences punishable under Sections 420, 467, 468 and 471 read with Section 120-B of the Indian Penal Code. In the complaint, it is also averred that when the matter was reported to the jurisdictional police, they did not receive the complaint and, therefore, it was prayed before the Magistrate that the complaint be referred to investigation under Section 156(3) Code of Criminal Procedure. The complaint was received on 20.1.2001. The learned Magistrate directed the registration of the case as P.C.R. and put up for hearing on 9.2.2001. On 9.2.2001 the complainant was present and the Magistrate has passed the following order: Present, heard perused materials on record, satisfied, refer the same to the S.H.O. of Madiwala P.S. for investigation under Section 156(3) Code of Criminal Procedure for report by 29/5. Pursuant to the said reference, the Madiwala police registered the case and submitted the FIR to the Court. The second Petitioner is said to have been arrested and released on bail. The other Petitioners apprehend the arrest and harassment by the police. In the said situation, the present petition is filed for quashing of the proceedings. 2. The Counsel for the Petitioner strenuously contended that the proceedings in the order sheet of the Magistrate clearly disclose that he had applied his mind and taken cognizance and, therefore, it was not proper for him to have referred the matter to the police for investigation under Section 156(3) Code of Criminal Procedure. In this regard, he has relied on a ruling of the Division Bench of this Court in D.P. Sharma Vs. C.R. Gowda 1982 (2) KarLR 358 wherein it is held that: ...It is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XV of the Code or under Section 204 of Chapter XVI of the Code that it can be positively stated that he has applied his mind and, therefore, has taken cognizance. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. Cognizance of an offence is a step towards exercise of jurisdiction. 3. Based on the said ratio it was contended that in the present case, the material amply establishes that the Magistrate has applied his mind, therefore, he is deemed to have taken cognizance and as such the reference of the matter to the police investigation after taking cognizance is impermissible in law. I am unable to be persuaded by the arguments of the Counsel for the Petitioner for the reason that explicitly in the orders of the Magistrate although it indicates the application of the judicial mind to the facts of the case but, there is no categorical mention to show that cognizance is taken. It is always not necessary in law that the Magistrate has to expressly state that cognizance is taken. It is also a matter of inference. However, the position of law in case of a complaint filed under Section 200 Code of Criminal Procedure it is within the discretion of the Magistrate either to take cognizance of the private complaint and proceed further with the enquiry as contemplated by recording sworn statement. Otherwise, the Magistrate after application of mind to the facts pleaded if he finds that a prima facie case is made out, without taking cognizance it is permissible for the Magistrate to refer the matter to investigation to the police. In the present case, the second method is adopted by the Magistrate which cannot be termed as illegal. The Counsel for the Petitioner relied on the ruling of Allahabad High Court reported in Chhedi and Others Vs. State of Uttar Pradesh and Another, (1991) CriLJ 3017 wherein it is laid down thus: ...Thus it is obvious that only allegation made whether orally or in writing to a Magistrate with a view to his taking action under the Code can be termed as a complaint. Where the applicant moves an application before the Magistrate with a simple prayer that the Police Officer concerned may be directed to register a case under a particular section and prayer for further direction is made that the police officer concerned may also proceed in accordance with law cannot be termed as 'complaint' as defined in Section 2(d) of the Code. The Magistrate has no power to proceed under Section 200 of the Code upon such an application. Of course, the Magistrate can proceed under Chapter XV of the Code if a proper complaint is filed before him in which allegations are made with a view to his taking action under the Code that some persons have committed an offence. In the present case, the learned Magistrate was not acting legally when he proceeded to examine Badrun Bibi and the witnesses under Section 200 of the Code in the absence of any formal complaint in this regard from her or any one else. Thus, the summoning order passed by the learned Magistrate cannot be sustained. 4. On going through the facts and the ratio in the decision cited above, I find that the ratio rather goes against the contention of the Petitioner. The facts in the present case are similar to the facts in the said case where the prayer is made for reference of the case for police investigation and in face of such prayer it is held that it is not permissible for the Magistrate to proceed on further enquiry under Section 200 Code of Criminal Procedure unless the complainant makes the specific prayer invoking the jurisdiction and indulges the Court to proceed with the case with a private complaint under Section 200 Code of Criminal Procedure. Therefore, in the instant case also we find that the complainant had made a limited request of seeking reference of the complaint for police investigation which has been granted and I do not find any illegality in the order of the Magistrate to interfere with. Accordingly, I find no merit in the petition. Hence the petition is dismissed.