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2016 DIGILAW 570 (KAR)

Yogesh Desai v. State of Karnataka

2016-07-21

A.N.VENUGOPALA GOWDA

body2016
ORDER : The petitioners, arraigned as the accused in C.C. No.57/2015, on the file of JMFC, Gangavati Taluk, Koppal District, filed this petition to quash the FIR, charge-sheet and entire proceedings of C.C. No.57/2015, on the file of JMFC, Gangavati. 2. A complaint dated 08.08.2014 having been filed by the respondent No.2, Smt. Anjali @ Geetanjali, wife of petitioner No.1, Gangavati Rural Police registered case in Crime No.222/2014 for the offences under Ss.498A, 506 read with S.34 of IPC against the petitioners and others and submitted FIR to the learned JMFC, Gangavati Taluk. After conducting the investigation, charge-sheet having been presented before the JMFC, Gangavati Taluk, against the petitioners, alleging commission of the offences punishable under Ss.498A, 506 read with S.34 of IPC, learned JMFC has issued summons, in C.C. No.57/2015, to the accused. 3. According to the petitioners, the complaint filed by the 2nd respondent is motivated and in fact, does not constitute an offence and the police having conducted a perfunctory investigation and filed charge-sheet, learned Magistrate, without any application of mind and having mechanically acted in the matter has issued the summons and that they have been unnecessarily called upon to defend in the criminal proceeding. 4. Sri Ganapati M. Bhat, learned advocate made an attempt to address arguments on the merits of the case as well. Since I do not find it necessary and as it is not proper also at this stage to deal with the merits of matter, the primary contention urged, that the learned Magistrate has not acted in accordance with law and that there is mere subscribing of signature while passing Order dated 19.01.2015 is sufficient to decide this petition. The consideration is limited to the question, whether there is application of mind by the learned Magistrate while taking cognizance of the offences and whether any interference is necessary? 5. Sri Raja Raghavendra Naik, learned HCGP, submitted that an inference can be drawn from the Order dated 19.01.2015, that having perused the charge-sheet and the material on record and learned Magistrate having opined that cognizance of the offences under Ss.498A, 506 read with S.34 of IPC can be taken, has directed registration of case in Register No. III and ordered for issuance of summons and that the petitioners having not suffered any prejudice, no interference at this stage of the case, in exercise of the inherent power is called for. 6. 6. In view of the rival contentions, it is necessary to extract, as it is, the relevant portion of the Order Sheet of the case maintained by the learned JMFC. The same is as follows: “In the Court of the Prl. Civil Judge and JMFC Gangavathi. C.C.No.57/2015 State of Karnataka by Gangavathi Rural police V/s. A1 Yogesh & 3 others -------------------------------------------------------------------------- Date: 19/01/2015 This is a Charge sheet filed by the Gangavathi Rural Police against the accused for the Offence Punishable U/Sec….. 498(A), 506 R/w 34 IPC. The C.S., is checked and found correct. Submitted for order Sd/- Sheristedar. Before: Sri. Bhola Pandit. B.com., LLM., Prl. JMFC Gangavathi. On perusal of Charge sheet and material on record sufficient, material to proceed case against accused. Hence cognizance taken for the offence U/Sec. 498(A), 506 R/w 34 IPC. The office is ordered to Register case in Reg-No. III. Issue S/S to accused. Call on 23-2-15. Sd/- Prl. Civil Judge & J.M.F.C. Gangavathi.” (Note: Underlined portion is by hand i.e., by way of filling up the blanks.) 7. It can be seen from the above that the learned Magistrate has used the cyclostyled form, in which, the blanks were filled up by him. This is a highly reprehensible practice and is deprecated. The Magistrate taking cognizance of the offence must apply his mind and cannot mechanically act in the matter. 8. The contention of the petitioners that the learned Magistrate has used ‘a typed proforma and has filled up the blanks’ is well founded. The Sheristedar, who has put up the order sheet, has filled up the Sections. In the later part, appearing down below, which is that of the learned Magistrate, the handwriting as is appearing in the first part i.e., of Sheristedar appears. The Magistrate has merely subscribed his short signature and the same is apparent. 9. The use of printed forms for taking cognizance of the offence and use of a stereo-typed form was deprecated by this Court in Crl.P. No.194/1996 and Crl.P. No.129/1997 decided on 14.08.1997 and 12.03.1999 respectively. 10. In M/s. VIJAYA BANK AND ANOTHER Vs. The Magistrate has merely subscribed his short signature and the same is apparent. 9. The use of printed forms for taking cognizance of the offence and use of a stereo-typed form was deprecated by this Court in Crl.P. No.194/1996 and Crl.P. No.129/1997 decided on 14.08.1997 and 12.03.1999 respectively. 10. In M/s. VIJAYA BANK AND ANOTHER Vs. STATE BY LABOUR ENFORCEMENT OFFICER, ILR 2000 KAR 4773, the Magistrate having taken cognizance of the offence by mechanically signing a filled up form, it was held, that it is difficult to arrive at a conclusion that the process of taking cognizance has actually been complied with and such an act cannot be sustained. 11. In PEPSI FOODS LTD. Vs. JUDICIAL MAGISTRATE, (1998) 5 SCC 749 , Apex Court has held that the exercise under S.204 Cr.P.C. of summoning an accused in a criminal case is a serious matter and that the process of criminal law cannot be set into motion in a mechanical manner. It has also been held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law governing the issue. The relevant portion reads as follows: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” It is clear from the decision of the Apex Court, noticed supra, that the process involves taking judicial notice of certain fact which constitutes offence and hence there has to be application of mind while initiating criminal proceedings against a person, which is a serious matter. 12. Having perused the impugned order passed by the Magistrate, I am satisfied that there is no indication of the application of mind by the learned Magistrate in taking cognizance and while issuing summons to the petitioners. The contention of learned HCGP that application of mind can be inferred since the learned Magistrate has acted on the final report submitted by the police cannot be appreciated. Though, no speaking order is required at the stage of application of the provision of S.190/204 Cr.P.C., there must be sufficient indication of application of mind by the Magistrate to the facts constituting the commission of offence so as to proceed against the offender(s), since summoning of the accused in a criminal case is a serious matter which may curtail the liberty of the person. In the circumstances, this Court once again deprecates the practice of filling up blanks in the already–typed format by the Magistrate. Since the impugned order is vitiated, the petition is allowed and the Order dated 19.01.2015 passed by the JMFC, registering case in C.C. No.57/2015 and issuing summons to the petitioners is quashed. However, the matter is remitted to the Magistrate for fresh consideration and if required, further action shall be taken in accordance with law.