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2010 DIGILAW 871 (KAR)

K. George Varghese v. State of Karnataka

2010-08-06

SUBHASH B.ADI

body2010
Judgment :- Subhash B. Adi, J. 1. Petitioners in all these criminal petitions have called in question the registration of private complaints in P.C.R. Nos.1/2010 to 55/2010 and consequently the registration of Crime Nos.15/2010 to 35/2010 by Sulebele Police and Crime Nos.16, 18, 19, 17, 20, 23, 24, 21, 22, 25 to 33, 37 to 52/2010 respectively by Mandagudi Police, Bangalore Rural District, Bangalore. 2. Respondent No.2 is the complainant, who filed a private complaint under Section 200 of Cr.P.C. inter alia alleging that, at about 2 p.m. on 28.12.2009, accused Nos.1 to 9 came to the land of the complainant, abused in filthy language. Held the hands, assaulted and attempted to kill him and thereby accused Nos.1 to 9 have committed an offence punishable under Sections 323, 504 and 307 of IPC and accused No.10 has committed an offence punishable under Sections 465, 467, 420, 193, 194, 211 and 144 of I.P.C. 3. This complaint was filed before the learned J.M.F.C., Hoskote on 2.1.2010, the order sheet dated 2.1.2010 reads thus: “Complainant absent/present. Perused Complaint cognizance is taken. Register as PCR and put up for sworn statement/argument on 6.1.2010.” The order sheet maintained by the learned Magistrate in all the cases reads the same thing. However, the order sheet dated 6.1.2010 reads as under: “The complainant is present. Heard the complainant’s Counsel. The complainant has alleged an offence punishable under Sections 323, 504 and 307 and also under Sections 465, 467, 420, 193, 194, 211 readwith Section 114 of the Indian Penal Code. Since the present offence are cognizable in nature and it requires further investigation, I herewith refers the same under Section 156(3) of CrPC for investigation to the PSI Sulibele Police Station. Await final report. Call on: 29-03-2010.” Further, on 02.1.2010, on the complaint itself, the learned Magistrate has made an endorsement to the effect that “Complainant is present, register the case as P.C.R. and put up for hearing”. The order sheet maintained by him dated 2.1.2010 does not even show whether he has signed it or not, but the order reads that the cognizance of the offence is taken. The order sheet maintained by him dated 2.1.2010 does not even show whether he has signed it or not, but the order reads that the cognizance of the offence is taken. If the learned Magistrate has taken the cognizance, it is ununderstandable as to how on 6.1.2010 he finds that the matter requires to be investigated by the Police and refers the matter under Section 156(3) of Cr.P.C. to the Police, What appears from the order sheet is that, the order sheet dated 2.1.2010 appears to be a printed form, as it discloses that, certain blanks are filled up and it also shows that the complainant present/absent, only the applicable will be retained and the other part will be struck down. It does not even show whether the complainant was present or absent. Similarly, it is mentioned that, register as PCR and put up for sworn statement/argument on 6.1.2010. It is also not clear as to whether it was posted for sworn statement or whether it was posted for argument. If he had already taken cognizance, then question of hearing does not arise. It is pathetic to notice that, in some of the cases, this type of order sheets are used by the learned Magistrates. This demonstrates not only the non-application of mind, but callous approach to the case. 4. It is pertinent to note that, Chapter VII of the Karnataka Criminal Rules of Practice deals with the recording of the proceedings, which requires that, all the Judges and Magistrates shall record in their own writing in the order sheet in Form No.3 all proceedings and orders of the Court as and when the proceedings take place and the orders are pronounced and shall initial the same. Provided that Judges and Magistrates may write out any order in the order sheet, or may have the same typed to their dictation on separate sheet or sheets of paper. In the latter event, the result thereof shall be recorded in the order sheet in the writing of the Judge or Magistrate. Whenever a judgment is pronounced, the result of trial be noted in the hand of the Judge or the Magistrate in the order sheet and the same shall be initialed and dated by him. Criminal Rules of Practice requires that the Magistrate should write the order sheet in his own hand. Whenever a judgment is pronounced, the result of trial be noted in the hand of the Judge or the Magistrate in the order sheet and the same shall be initialed and dated by him. Criminal Rules of Practice requires that the Magistrate should write the order sheet in his own hand. Even in case the judgments or orders are typed to their dictation, but the order portion has to be written by the Judges or Magistrates In the order sheet and they shall initial the same. 5. However, the order sheet produced in these cases dated 2.1.2010 does not even bear the signature of the learned Magistrate. It is not only contrary to the procedure, but it is also contrary to the endorsement made by the Magistrate on the complaint itself. There are two orders on 2.1.2010, one on the first page of the complaint, and another on the order sheet, and both are mutually contradicting to each other. It is again strange to note that the order dated 2.1.2010 is contrary to order dated 6.1.2010. in the order dated 2.1.2010 it is mentioned that, the cognizance taken, whereas in the order dated 6.1.2010, it is mentioned that, the matter is referred to the Police. This is glaring example of non-application of mind to the case. 6. Without even going into the merit of the cases, I find that the learned Magistrate requires to be informed that, when a complaint is filed, he should register the same as P.C.R. thereafter, if he finds that the cognizance could be taken, he may proceed to take cognizance, in case he finds that the matter requires the investigation, he may refer the matter for investigation and await for the report from the jurisdictional Police, based on the report, he may proceed to take the cognizance or may issue notice to the complainant and hear him and proceed in the matter. But once the cognizance is taken, there is no reason for referring the matter for investigation, unless a request is made for further investigation, in these cases, there is also no such request, obviously as the matters were referred to the Police for investigation under Section 156(3) of Cr.P.C. the whole approach of the learned Magistrate is most contusive and erroneous, and same is not sustainable in law. Inconsistent orders passed by the learned Magistrate give wrong message to the litigants and the Court. In view of the above, these Criminal petitions are allowed. The order passed on 2.1.2010 and also on 6.1.2010 by the J.M.F.C., Hoskote, in P.C.R. Nos.1/2010 to 55/2010 are set aside. The Magistrate is directed to proceed with the private complaints in accordance with the provisions of Chapter XV of Cr.P.C. In view of the setting aside of the order dated 2.1.2010 and also 6.1.2010, consequently the cases registered in Crime Nos.15/2010 to 35/2010 by Sulebele Police and Crime Nos.16, 18, 19, 17, 20, 23, 24, 21, 22, 25 to 33, 37 to 52/2010 by Nandagudi Police, Bangalore Rural District, Bangalore, also stand quashed.