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2015 DIGILAW 283 (KAR)

Noor Mohammad v. State of Karnataka

2015-03-12

K.N.PHANEENDRA

body2015
ORDER K.N. Phaneendra, J. 1. The petitioner has approached this Court seeking to quash the entire proceedings in C.C. No. 311/2014 pending before the Senior Civil Judge and Chief Judicial Magistrate at Yadgiri. 2. I have heard the arguments of the learned counsel for the petitioner and also learned Addl. SPP for the respondent. 3. The brief factual matrix emanate from the records are that - "A person by name Noor Mohammad (petitioner herein) filed the First Information Report making allegations against the accused by name Nabisab for the offences punishable under Sections 447, 324and 504 of IPC. When the police after due investigation, submitted charge sheet and a case in C.C. No. 240/2013 was registered. When the matter was taken up for evidence, the petitioner examined himself as P.W. 1. P.W. 1 has reiterated his case in examination-in-chief specifically making allegations that the accused, on that particular day abused him in filthy language and also assaulted him with a club on his back, on the knee and left leg and caused bleeding injuries, after wrongfully trespassing his land. He also got marked MO.1-Stick and also Ex. P1-the original FIR filed. He supported the case in his examination in chief but during the course of cross-examination by the defense counsel, he totally taken a ‘IJ' turn and stated that there was absolutely no quarrel between himself and the accused and the accused did not assault him or abuse him, and no eyewitnesses were present at that time, though he has specifically stated in examination-in-chief that the eye-witnesses have rescued him from the clutches of the accused. The other eye-witnesses turned totally hostile to the prosecution and ultimately the Chief Judicial Magistrate, Yadagiri, acquitted the accused. But at the same time the learned Chief Judicial Magistrate has observed that there is inconsistency in the evidence of P.W. 1, as he has taken two versions in examination-in-chief and in cross-examination. Therefore, the learned Chief Judicial Magistrate thought that, it requires an action against him for the offence under Section 193 of IPC. Accordingly, while acquitting the accused, in the same order he has directed the office to register a separate case against the petitioner. Against that order the present petition is preferred. 4. Therefore, the learned Chief Judicial Magistrate thought that, it requires an action against him for the offence under Section 193 of IPC. Accordingly, while acquitting the accused, in the same order he has directed the office to register a separate case against the petitioner. Against that order the present petition is preferred. 4. Of course, I do not find any illegality committed by the learned Magistrate so far as the substance of the allegations made against the petitioner is concerned, because, it is found from the examination-in-chief and the cross-examination of P.W. 1 that he has given two inconsistent versions. But the learned Chief Judicial Magistrate unmindful of the procedure to be followed, committed serious incurable irregularity in initiating a proceeding for the offence under Section 193 of IPC without following the procedure contemplated therein and wrongly directed the office to post the case against him. It is also seen from the records that, on the basis of the above said order, a case was registered in C.C. No. 311/2014 and cognizance was taken by the same Chief Judicial Magistrate and he ordered to issue process against the accused. This act of the Chief Judicial Magistrate clearly indicates that the order of taking cognizance against the petitioner is violative of principles of natural justice. It is a well known recognized criminal or civil jurisprudence that a man cannot be a Judge of his own cause that means to say when the Magistrate himself lodges a complaint about the complicity of the petitioner under Section 193 of IPC, he becomes the witness to the said incident, because according to him the said inconsistent evidence was given before him during the course of the case in C.C. No. 240/2013, therefore, he himself cannot try the said case. 5. Secondly, the illegality and irregularity committed by the learned Chief Judicial Magistrate is that, he never looked into the provision of Sections 340 and 195 of Cr.P.C. The judicial Courts strictly should act according to the procedures as contemplated under law. Here, the learned Chief Judicial Magistrate has not looked into the procedure to be followed. Whenever the Court would like to lodge a complaint for the offence under Section193 of Cr.P.C. it is just and necessary to look into the procedures that should have been followed. Here, the learned Chief Judicial Magistrate has not looked into the procedure to be followed. Whenever the Court would like to lodge a complaint for the offence under Section193 of Cr.P.C. it is just and necessary to look into the procedures that should have been followed. Therefore, the procedure contemplated under Section 195 of Cr.P.C. has to be borne in mind r/w Section 340 of Cr.P.C. Section 195 of Cr.P.C. clearly mandates that; (1) No Court shall take cognizance- (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code. (ii) of any abetment of attempt to commit, such offence, or (iii) of any criminal conspiracy in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 to 1860) namely, sections 193 to 196 (both inclusive),199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) of sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf or of some other Court to which that Court is subordinate] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinated; (b) where appeals lie to a civil and also to a Revenue Court, such Court shall b e deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." This provision is applicable to the case, where an offence is committed by any person in a Court proceedings under Sections 193 to 196 (both inclusive). The said provision is applicable to the case on hand. Therefore, no Court can take cognizance except on the complaint in writing of that Court or by such Officer of the Court authorized, in this behalf or by some other Court to which that Court is sub-ordinate. Therefore, the learned Chief Judicial Magistrate ought to have followed the procedure as contemplated under Section195 of Cr.P.C. When he has specifically stated that the petitioner has committed the offence under Section 193 of IPC, then he would have filed a private complaint in writing or he would have authorized any of his Officer to submit a complaint to the competent Court for appropriate action. 6. It is also worth to note here the procedure that has to be followed before lodging a complaint under Section 195 of Cr.P.C., and what should be the contents of such complaint is also very much enunciated under Section 340 of Cr.P.C. which reads thus; "340. 6. It is also worth to note here the procedure that has to be followed before lodging a complaint under Section 195 of Cr.P.C., and what should be the contents of such complaint is also very much enunciated under Section 340 of Cr.P.C. which reads thus; "340. Procedure in cases mentioned in Section 195-(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court or by such officer of the Court may authorize in writing in this behalf. (4) In this section, "Court" has the same meaning as in section 195. (4) In this section, "Court" has the same meaning as in section 195. (emphasis supplied) Therefore, looking to the above said provision, the Chief Judicial Magistrate has to make a preliminary enquiry, if necessary, to find out the truth and intention of the accused and thereafter only lodge a complaint in writing recording a finding to that effect about the offence being committed by the accused and complaint should have been sent to the Magistrate of First Class, because Chief Judicial Magistrate himself cannot try that case. Before doing that he can also take sufficient security for the appearance of the accused before such Magistrate, if alleged offence is non-bailable and if the Court thinks it necessary to do so, it can send the accused in custody to such Magistrate, if he is in custody or bind over such person to appear before such Magistrate. Of course, the Chief Judicial Magistrate also can make a preliminary inquiry, if necessary, before sending the complaint to the Magistrate but, it is not an absolute requirement of law. 7. Hence, I do not find any strong reasons to differ from the order passed by the Chief Judicial Magistrate to register a separate case but he should have done the same after following the procedure contemplated under Sections 195 and 340 of Cr.P.C. Hence, registering the case in C.C. No. 311/2014, taking cognizance and issuing summons against the petitioner are not in accordance with the procedure contemplated under law. Hence, it vitiates the entire proceedings and as such, the said order deserves to be quashed. However, it is directed that the learned Chief Judicial Magistrate can bestow his attention to Sections 195 and 340 of Cr.P.C. and pass appropriate order and if still he feels necessary to refer the complaint to the jurisdictional Magistrate, he can pass appropriate order to that effect. With these observations, the petition is allowed. The registration of C.C. No. 311/2014 and all further proceedings on the file of the Senior Civil Judge and Chief Judicial Magistrate, Yadgiri, is hereby quashed. Send a copy of this order to the concerned Judge for compliance.