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2010 DIGILAW 414 (KAR)

Haridas Naik v. Hanchinamane Gadriyappa

2010-03-30

ARALI NAGARAJ

body2010
Judgment The petitioner Nos. 1 to 11 herein have challenged in this petition the correctness of the order dated 24.10.2009 passed in C.C.No.379/2009 (PCR) No.19/2009) by the learned Civil Judge (Jr.Dn) & JMFC, Jagalur (hereinafter referred to as “Trial Court” for short), issuing process against these petitioners for the offences under Sections 143, 147, 148, 323, 324, 504 and 506 R/W Section 149 of IPC. 2. Though this matter is listed today for admission, having regard to the nature of the impugned order and the relief sought for, it is taken for final disposal and the arguments of Sri Hanumanthappa, the learned Counsel for the petitioners and Sri Vijajakumar Majage, the learned HCGP are heard. The impugned order and also the averments in the complaint filed by the respondent Nos.1 and 2 herein are perused. 3. Stated in brief the facts leading to the present petition are as under: (a) Respondent Nos.1 and 2 herein filed their joint complaint under section 200 Cr.P.C before the Trial Court. The said complaint came to be referred to the police concerned under Section 156 (3) of Cr.P.C. After completion of the investigation, the police submitted ‘B’ summary Report and the same was protested by the complainants therein. (b) Then the Trial Court received affidavits sworn to by the complainants therein in lieu of the sworn statement. Based on the said affidavits and the avernments in the complaint, the Trial Court, by its impugned order, rejected the ‘B’ summary report and issued process against these petitioners for the said offences. The correctness of this order is challenged in this petition. 4. Sri Hanumanthappa, the learned Counsel for the petitioners, placing reliance on the decision of this Court in the case of Sri Venkataramaiah and Others Vs. Sri Katterao reported in 2008 (1) KCCR 354 strongly contends that receiving of affidavits in lieu of the sworn statement of the complainant for issuing process against the petitioners accused for the said offences is not permissible in law, inasmuch as no provision under Cr.P.C. provides for filing of such affidavit in lieu of sworn statement of the complainant which has to be recorded by the learned Magistrate himself as provided under Section 200 Cr.P.C. and therefore, the impugned order issuing process deserves to be set aside. He further contends that there is no provision in Cr.P.C. for filing a joint complaint by two complainants and therefore the complaint itself, being bad in law deserves to be quashed. 5. The order sheet dated 06.10.2009 in PCR No.19/2009 reveals that the complainants filed their affidavits as substitute for the sworn statement of the complainant and the Trial Court accepted the same and proceeded with the matter. It is clearly held by this Court in the case Sri Venkataramaiah and Others Vs. Sri Katterao reported in 2008 (1) KCCR 354 relied upon by the learned Counsel for the petitioners as under; 6. “Learned Counsel appearing for the petitioner relied on Section 200 of Cr.P.C. and submitted that, Section 200 in Chapter XV of Cr.P.C. relates to complaint to the Magistrate. He emphasized from the provisions of Section 200 and submitted that a Magistrate who takes cognizance of any offence on the complaint, shall examine upon both the complainant and the witnesses present if any and further he is required to record the substance of the examination in writing and same has to be signed by the complainant and the witnesses. This is a specific procedure contemplated in the matter of filing of complaint under Section 200 of Cr.P.C. He further submitted that filing of an affidavit cannot partake the character of the sworn statement as contemplated under Section 200 of Cr.P.C. Section 200 of Cr.P.C. specifically requires the Magistrate to reduce into writing the substance of the sworn statement of the complainant and the witnesses, and same cannot be done in the case of affidavit as Magistrate will not have any chance to record the substance of the sworn statement. He also submitted that the evidence under Section 296 of Cr.P.C. cannot be used as sworn statement before Magistrate. The sworn statement does not call for the cross-examination of the complainant and the witnesses. It is only the Magistrate who is required to satisfy himself about the statement of the complainant and the witnesses. He further submitted that the judgment relied on by the learned Counsel for the petitioner, is in the matter of Section 145 of N.I. Act wherein there is a specific provision in sub-section (2) which provides for filing of affidavit and it is in this regard, this Court in the reported judgment has accepted the affidavit. He further submitted that the judgment relied on by the learned Counsel for the petitioner, is in the matter of Section 145 of N.I. Act wherein there is a specific provision in sub-section (2) which provides for filing of affidavit and it is in this regard, this Court in the reported judgment has accepted the affidavit. He also submitted that the said case was under the provisions of Section 145 of the Negotiable Instruments Act and not a complaint for offence under I.P.C.” 6. Following the above observations in the said case. I am of the opinion that the learned Magistrate committed a serious error in accepting the affidavits sworn to by the complainant in lieu of the sworn statement which is to be recorded by him only. Therefore, the impugned order issuing process against the petitioners for the said offences cannot be sustained in law. 7. As to the other contention of the learned Counsel for the petitioners that a joint complaint by two or more persons is not envisaged under Cr.P.C. and therefore the complaint in the instant case filed by two persons should not have been entertained by the Trial Court and hence the complaint itself deserves to be quashed. On this aspect, there is a decision of High Court of Madras in the case of Narayanaswami and Others Vs. Egappa Reddi and Others reported in AIR 1962 Madras 443 = 1962 (2) Crl.L.J 616. In the said case, the Madras High Court, though held that a joint complaint by two or more persons is not contemplated by the Criminal Procedure Code, instead of quashing the complaint, it remitted the matter back to the concerned Magistrate with a direction to treat the complaint filed in the said case as a complaint by one of the complainants at their option and permit the other complainant to file his separate complaint, if so desired. 8. Following the above decision of Madras High Court, the High Court of Punjab and Haryana in the case of Santokh Singh and Another Vs. Gurpal Singh and Others reported in 1996 (1) Crimes 53 (H.C.) though held that a joint complaint by two or more persons is not envisaged by the Code of Criminal Procedure, it also directed the learned Magistrate to treat the complaint filed by one of the complainants at their option and then to proceed with the matter. Gurpal Singh and Others reported in 1996 (1) Crimes 53 (H.C.) though held that a joint complaint by two or more persons is not envisaged by the Code of Criminal Procedure, it also directed the learned Magistrate to treat the complaint filed by one of the complainants at their option and then to proceed with the matter. Relevant observations of High Court of Punjab and Haryana are at para No.17 of its judgment are as under: 17. “The next question that immediately arises is as to what is the effect of error that has occurred in the present case. This is basically a procedural defect. It will not go to the root of the matter. Justice is the main deity. Procedural aspects only perform certain auxiliary functions. No such prejudice can be held to have been caused to the petitioner, which is not curable. Therefore, it is in the fitness of things that the respondents before the learned trial Court will exercise the option as to which of the respondents should be permitted to continue and be mentioned as the complainant. The names of other respondents can be deleted and if the complainants, who chooses to continue with the complaint so like, otherwise would be permitted to be added as witnesses.” 9. On this aspect, there is a decision of this Court also in the case of Parijanashram Swamiji Vs. Kailaje reported in ILR 1986 KAR 417. The three questions that were considered by the learned Single Judge in the said decision were: (i) Whether a joint complaint is envisaged under the Code? (ii) Whether the dispute between the parties is of a civil nature? (iii) Whether the procedure followed by Magistrate is not in accordance with law? 10. The learned Single Judge answered both the question Nos.1 and 2 in the affirmative and declined to answer question No.3 on the ground that in view of his finding on question Nos.1 and 2 in the affirmative, he felt it unnecessary to express his opinion on the third question. 10. The learned Single Judge answered both the question Nos.1 and 2 in the affirmative and declined to answer question No.3 on the ground that in view of his finding on question Nos.1 and 2 in the affirmative, he felt it unnecessary to express his opinion on the third question. Further following the decision of Madras High Court in the case of Narayanaswami (1962 (2) Crl.L.J. 616 = AIR 1962 Madras 443) referred to supra, though the learned Single Judge of this Court ultimately held in the said case, that a joint complaint by two or more persons is not envisaged under the Code of Criminal Procedure, he did not order dropping of all further proceedings initiated before the learned Magistrate on the Joint complaint, specifically for that reason only. It appears from the said decision that the learned Single Judge ordered dropping of further proceedings before the learned Magistrate in view of his finding that the dispute between the parties therein was of civil nature. Besides this, the learned Single Judge, after holding that a joint complaint by two or more persons is not permissible, under the Code, did not further discuss as to ‘what will be the effect of such a joint complaint? Therefore, respectfully agreeing with the view taken by the High Courts of Madras and Punjab and Haryana in the cases referred to supra, I am of the considered opinion that though the complaint in the instant case is filed by two persons jointly, all further proceedings pursuant thereto cannot be quashed on ground only that a joint complaint is not envisaged under the Code of Criminal Procedure. The complainants deserve an opportunity to choose as to who of them would continue to prosecute the said complaint as complainant. 11. For the reasons aforesaid, the present petition is allowed in part. The impugned order dated 24.10.2009 passed in C.C.No. 379/2009 (PCR No.19/2009 by the learned Civil Judge (Jr.Dn) & JMFC, Jagalure, issuing process against the petitioners herein (accused therein) for the offences under Sections 143, 147, 148, 323, 324, 504 and 506 r/w Section 149 of IPC is hereby set aside. The impugned order dated 24.10.2009 passed in C.C.No. 379/2009 (PCR No.19/2009 by the learned Civil Judge (Jr.Dn) & JMFC, Jagalure, issuing process against the petitioners herein (accused therein) for the offences under Sections 143, 147, 148, 323, 324, 504 and 506 r/w Section 149 of IPC is hereby set aside. The matter is remitted back to the learned Magistrate with a direction to give option to the complainants as to who of them would continue with the complaint and then record sworn statement of such complainant and also to record the statement of the other person as one of the witnesses for the witnesses for the complainant, if they so desire, and then proceed with the matter in accordance with law.