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2011 DIGILAW 372 (KAR)

Nithya Dharmananda @ K. Lenin v. Anjula Jackson

2011-03-31

K.N.KESHAVANARAYANA

body2011
ORDER K.N. KESHAVANARAYANA, J.—In this petition filed under Section 482 Cr.P.C. the petitioner has sought for setting aside the order dated 30.10.2010 passed by the Civil Judge (Jr. Dn.) & JMFC, Ramanagara in C.C. No. 843/10 taking cognizance against the petitioner for the offences punishable under Sections 447, 448, 453, 456, 292, 509, 182, 505 of IPC, Section 87 of the Information Technology Act, 2000 and Section 4 read with Section 8 of the Indecent Representation of Women’s Act, 1986 and consequently to quash the entire proceedings. 2. The respondent herein filed private complaint, under Section 200 Cr.P.C. against the petitioner herein alleging aforesaid offences. On presentation of the complaint on 28.8.2010, the learned Magistrate took cognizance of the offences alleged, thereafter recorded the sworn statement of the complainant on 25.9.2010 and by order dated 30.10.2010 opined that there is sufficient material to summon the petitioner-accused to answer the accusation made against him, therefore, ordered issue of summons to the accused. 3. In. this petition, the petitioner has sought, for quashing the proceedings inter alia on the ground that the allegations made in the complaint and the sworn statement of the complainant would not make out any offence and the ingredients of any of the offences are not made out, as such, the order passed by the learned Magistrate taking cognizance of the offences and ordering issue of summons to the petitioner is bad in law. It is also contended that the learned Magistrate before taking cognizance and ordering summons, has not applied his judicious mind to the effect as to whether the allegations made in the complaint and the sworn statement of the complainant would prima facie answer the ingredients of any of the offences alleged as such the order is bad in law, 4. I have heard Sri. C.H. Jadav, learned counsel for the petitioner and Sri. Ravi B. Naik, learned Senior Counsel appearing for the respondent-complainant. 5. Sri. Jadav contended as under: Non-application of judicious mind by the learned Magistrate at that time of taking cognizance and at the time of issue of summons to the petitioner-accused is evident from the fact that the order of taking cognizance and issuing summons does not indicate as to for which offences the learned Magistrate has taken cognizance and has issued summons to the accused. Though cognizance of the offence punishable under Section 182 of IPC cannot be taken except on a complaint by that Court, as provided by Section 195(1)(b) Cr.P.C. the learned Magistrate has proceeded to take cognizance on the basis of the private complaint, filed under Section 200 Cr.P.C, by an individual. Though the Court cannot take cognizance of the offence punishable under Section 505 IPC except with previous sanction of the Central Government or State Government or from the District Magistrate as provided by Section 196 (1-A) of Cr.P.C, and though no such previous sanction had been obtained, the learned Magistrate has proceeded to take cognizance even for the offence punishable under Section 505 IPC. The allegation made in the complaint and in the sworn statement do not satisfy the ingredients of other offences alleged, therefore, the entire proceedings is vitiated as such it is liable to be quashed. The complaint is vexatious and is with a view to wreck vengeance against the petitioner as a counter blast to the complaint lodged by him against Nityananda Swami, therefore, the complaint is a motivated one, as such it is liable to be quashed. 6. On the other hand, Sri Ravi B, Naik, learned Senior Counsel appearing for the respondent-complainant fairly conceded that since the order passed by the learned Magistrate does not indicate as to for which offences he has taken cognizance and in spite of the bar created by Section 195(1)(b) and Section 196(1A) of Cr.P.C. the learned Magistrate has proceeded to take cognizance for the offences punishable under Sections 182 IPC and 505 respectively, they would indicate non application of mind, therefore he has no objection to set aside the order passed by the learned Magistrate taking cognizance and ordering summons with a direction to the learned Magistrate to reconsider the matter afresh in accordance with law. However, the learned Senior Counsel submitted that the allegations made in the complaint prima facie answer the ingredients of the offences punishable under Sections 447, 448, 453, 456, 292 and 599 IPC, therefore, the complaint as a whole cannot be quashed. 7. However, the learned Senior Counsel submitted that the allegations made in the complaint prima facie answer the ingredients of the offences punishable under Sections 447, 448, 453, 456, 292 and 599 IPC, therefore, the complaint as a whole cannot be quashed. 7. However, Sri C.H. Jadav, insisted upon this Court to consider his argument to the effect that, the allegations made in the complaint as well as sworn statement of the complainant does not prima facie satisfy the ingredients of any of the offences as such the entire complaint is required to be quashed. 8. I have bestowed my anxious considerations to the submissions made by the learned counsel on both sides. 9. The allegations made in the complaint, with regard to the offence punishable under Section 182 IPC is concerned, relate to the acts on the part of the petitioner herein in lodging a complaint against Nityananda Swami, of whom the respondent-complainant, claims to be an ardent devotee. There is no serious dispute that on the basis of the complaint lodged by the petitioner herein, Crime case was registered by the police against Nityananda Swami and others and investigation was taken up. It appears after investigation, the police have also filed charge sheet in that case. Therefore, as rightly conceded by the learned Senior Counsel, the offence punishable under Section 182 of IPC as alleged in the complaint is governed by the procedure laid down under Section 195 of Cr.P.C. Section 195 creates an embargo for the Court to take cognizance of the offence enumerated therein except on the complaint in writing of that Court or by such officer of the Court as such the Court, may authorize in writing. As, the offence punishable under Section 182 of IPC is one of the offences enumerated under Section 195(1)(a)(i) of Cr.P.C., cognizance of the said offence could not have been taken by the learned Magistrate on a complaint lodged by a private individual, since, cognizance for such offence can be taken only on a. complaint in writing by that Court. Similarly, as per Section 196(1-A) of Cr.P.C., there is an embargo on the part of the Court to take cognizance for offence punishable under Section 505 of IPC except with the previous sanction of the Central Government or the State Government or from the District Magistrate. Similarly, as per Section 196(1-A) of Cr.P.C., there is an embargo on the part of the Court to take cognizance for offence punishable under Section 505 of IPC except with the previous sanction of the Central Government or the State Government or from the District Magistrate. Therefore, the cognizance taken by the learned Magistrate for the offences punishable under Sections 182 and 505 IPC, was without jurisdiction, and the learned Magistrate could not have taken cognizance for these two offences. However, in spite of the same, the learned Magistrate proceeded to take cognizance and ordered issue of summons to the petitioner herein. This would clearly indicate the non-application of judicious mind by the learned Magistrate. It is now well settled law by catena of decisions that at the time of taking cognizance of offence/s alleged in the complaint filed under Section 200 Cr.P.C., the Magistrate is required to apply his judicious mind to the contents of the complaint and the documents if any, produced alongwith the complaint to prima facie satisfy himself that there is ease for taking note of the allegations and the offences alleged. It is also well settled that the order of taking cognizance and the order directing issue of summons should indicate the offences for which the cognizance has been taken and the offences for which the accused is summoned to answer. The perusal of the certified copy of the order sheet maintained by the learned Magistrate in the case on hand indicates that the learned Magistrate has not applied his judicious mind. 10. As could be seen from the certified copy of the complaint, the same was presented before the learned Magistrate on 28.8.2010. On presentation of the complaint, the learned Magistrate has passed the following order: “Complainant present. Perused the contents of complaint. Cognizance taken. Register as PCR and call on for sworn statement by 4.9.2010” The aforesaid order though indicates that the learned Magistrate has perused the contents of the complaint and thereafter he has taken cognizance, but the said order does not indicate as to for which of the offences alleged in the complaint, the learned Magistrate has taken cognizance. The order dated 30.10.2010 passed by the learned Magistrate reads as under: “On 28.8.2010 complainant filed this case and this Court took cognizance of the complaint and registered PCR. The order dated 30.10.2010 passed by the learned Magistrate reads as under: “On 28.8.2010 complainant filed this case and this Court took cognizance of the complaint and registered PCR. Sworn statement of the complainant was recorded on 25.9.2010 in which complainant repeated the averments of complaint and alleged that PSI, Bidadi had failed to take necessary action against the accused, similar type of complaint was filed which were referred to PSI Bidadi with a direction to register a case on the basis of which respective FIRs were submitted to this Court. Hence, it would be proper to take cognizance of the offences alleged in the complaint. Hence, register this case as C.C. and issue summons to accused returnable by 15.1.2011.” As could be seen from the above, the learned Magistrate once again took cognizance of the offences alleged in the complaint and ordered issue of summons to the accused. In this order also, he has not specified the offences for which he has taken cognizance and ordered issue of summons to the accused. Therefore, it has to be presumed that, the learned Magistrate has taken cognizance for all the offences mentioned in the complaint. As already noticed above, though the learned Magistrate, could not have taken cognizance for the offence punishable under Section 182 IPC on the private complaint filed by the respondent herein, and could not have taken cognizance for the offence under Section 505 IPC without, the previous sanction of the Central Government or the State Government or from the District Magistrate, he proceeded to take cognizance for these offences also as alleged in the complaint. From all these factors, it is clear that, the learned Magistrate has not applied his judicious mind either at the time of taking cognizance or at the time of ordering issue of summons to the petitioner. Therefore, the whole process adopted by the learned Magistrate in this regard is contrary to the well settled law therefore the process of taking cognizance and ordering issue of summons to the petitioner-accused is bad in law. Having found that the learned Magistrate has not applied his judicious mind both while taking cognizance and ordering issue of summons which fact is not seriously disputed by the respondent-complainant, 1 do not deem it proper to go into the other contentions urged by Sri C.H. Jadav. Having found that the learned Magistrate has not applied his judicious mind both while taking cognizance and ordering issue of summons which fact is not seriously disputed by the respondent-complainant, 1 do not deem it proper to go into the other contentions urged by Sri C.H. Jadav. The question as to whether or not the allegations made in the complaint and in the sworn statement would prima facie establish the ingredients of other offences will have to be considered by the learned Magistrate, both at the time of taking cognizance and at the time of ordering summons, if any. Therefore, if this Court makes any observations in that regard, it would certainly prejudice the case of the parties. Therefore, without expressing any opinion on the various contentions urged by the learned counsel for the petitioner, having regard to fact that the learned Magistrate has not applied his judicious mind both at, the time of taking cognizance and at the time of ordering issue of summons to the petitioner-accused, it is just and proper to set aside the order taking cognizance of the offence and ordering of summons to the petitioner-accused and to direct the learned Magistrate to consider the matter afresh. 11. In this view of the matter, the petition is allowed in part. The order dated 28.8.2010 taking cognizance and order dated 30.10.2010 directing issue of summons to the petitioner accused are hereby quashed. The jurisdictional Magistrate is directed to consider the complaint afresh and pass appropriate orders in the light of the aforesaid observations. In the light of disposal of the main petition, the application Misc. Crl.566/11 filed by the respondent for vacating stay does not survive for consideration and accordingly, it stands disposed of.