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2017 DIGILAW 259 (KAR)

Mallikarjuna v. State of Karnataka

2017-02-02

K.N.PHANEENDRA

body2017
ORDER : K.N. Phaneendra, J. 1. Heard the learned Counsel for the petitioners and the learned Additional Government Advocate for respondent 1 -State. Perused the records. With the consent of the Counsels appearing on both sides, this petition is taken up for disposal at the stage of admission itself. 2. The petitioners have approached this Court seeking quashing of the criminal proceedings in C.C. No. 735 of 2016 for the offences under Sections 143,147, 188 and 504 read with Section 149 of the Indian Penal Code, 1860. 3. On careful perusal of the First Information Report, it is seen that the Tahsildar/Executive Magistrate, Hosapete, has lodged a complaint against the petitioners stating that on 28-12-2015, at about 5.15 p.m., when he was in his office, one Thippeswamy, a Police Constable, came to his office and told that, in front of his office, some people have gathered for the purpose of giving a representation. Saying so, the police dispersed the gathering of the said persons. However, only three to tour persons entered the office and handed over the representation, which contained the signatures of 43 persons. It is stated that, on that particular day, Section 144, imposed by the Competent Authority, was in force, therefore, gathering of said persons was illegal. As such, The Tahsildar has lodged a complaint to take appropriate action against those persons. On the basis of the same, the police have registered a case in Crime No. 252 of 2015 for the offences under Sections 143, 147 and 188 read with Section 140 of IPC. The Police have investigated the matter and submitted a Charged-sheet for the above said offences. 4. The eye-witnesses, namely Ballari Swamy, Shivaputrappa and Pampathi, have stated before the police that, on that day, lot of people had gathered in front of the office of the Tahsildar and they were dispersed by the police, and thereafter, four persons went inside the Office of the Tahsildar and handed over the representation. Sri Ballari Swamy, in his statement, has stated that about 10-15 persons had gathered earlier in front of the Tahsildar's Office. Similar statements have been made by other eye-witnesses. Sri Ballari Swamy, in his statement, has stated that about 10-15 persons had gathered earlier in front of the Tahsildar's Office. Similar statements have been made by other eye-witnesses. Nothing is there on record to show that who were those 10 to 15 persons, who had gathered in front of the Tahsildar's Office; whether the said four persons, who gave the representation, were also the members of the said group and thereafter, those persons went to the Tahsildar's Office for the purpose of giving representation, such elucidation of factual aspects in the statements of eye-witnesses is absent. Further added to that, there is no such information given by the tahsildar in the First Information Report with regard to the number of people, who gathered in front of his office, and whether those 3 to 4 persons, who entered his office, were also part of the said group. In this background, let me consider the offences alleged against the petitioners. 5. Section 141 of IPC, which defines 'Unlawful assembly', says that: "141. Unlawful assembly. - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is. - First. -To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second. - To resist the execution of any law, or of any legal process; or Third. - To commit any mischief or criminal trespass, or other offence; or Fourth. - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which is in possession or enjoyment, or to enforce any right or supposed right; or Fifth. - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legal entitled to do. Explanation. - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legal entitled to do. Explanation. - An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly." There is no whisper in the complaint that there were five or more persons, who entered into the office of the Tahsildar, so as to constitute an 'unlawful assembly'. What is the number of persons gathered outside the Tahsildar's Office is also not stated in the First Information Report. The police have also not investigated sofar as this aspect is concerned. Except the four persons who entered the office of the Tahsildar, who are all the other persons, gathered in front of the office of the Tahsildar, is also not forthcoming from the records. Perhaps, in order to comply with Sections 141 and 143 of IPC, the police might have incorporated the names of two more persons in the charge-sheet. But, nobody has identified the persons who gathered there along with the four persons who are stated to have entered the office of the Tahsildar and gave representation. Therefore, on a plain reading of the complaint and the charge-sheet, it cannot be said that the allegations made in the complaint and the charge-sheet attract Section 143 of IPC. 6. Section 146 of IPC defines 'Rioting', which says that: "146. Rioting. - Whenever force or violence is used by an unlawful assembly, or any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting." On relooking the First Information Report and the charge-sheet papers, there are absolutely no allegations against any persons, who had gathered in front of the Tahsildar's Office, as to whether they were using any force or violence, in prosecution/continuation of the common object of the unlawful assembly, nor it is stated that any member of the unlawful assembly was armed with deadly weapons so as to attract Sections 148 and 149 of IPC. Therefore, looking from any angle, the ingredients of the above said provisions are not attracted, even if the allegations made in the charge-sheet and the FIR are accepted as it is. 7. Therefore, looking from any angle, the ingredients of the above said provisions are not attracted, even if the allegations made in the charge-sheet and the FIR are accepted as it is. 7. The police have also invoked Section 188 of IPC stating that, at that particular time, Section 144 was in force and, therefore, gathering of five or more persons amounts to an 'unlawful assembly'. Section 188 of IPC speaks about the disobedience to order duly promulgated by public servant, which meticulously says that whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, is directed to abstain from a certain act, or to take certain order with certain property in his possessions or under his management, disobeys such directions is punishable under Section 143 of IPC. 8. On perusal of the factual aspects, of course, if there is any violation of any order promulgated by a public servant under Section 144 of IPC, then it attracts Section 188 of IPC. But, here, in this particular case, as I have already narrated, the offences under Sections 141, 143 and 149 are not attracted. Further added to that, as rightly contended by the learned Counsel for the petitioners, the entire charge-sheet does not disclose as to exactly on which day and time Section 144 was promulgated by the Competent Authority. No such order is produced showing the date, time and place imposing Section 144 of IPC. There is no mention in the charge-sheet about the specific order imposing Section 144 of IPC. n the absence of that, nobody can imagine that Section 144 was, in fact, in force at that particular point of time. 9. Be that as it may, in order to take cognizance of the offence under Section 188 of IPC, the Court has no jurisdiction to take cognizance unless Section 195 of Criminal Procedure Code, 1973 is complied with. The relevant portion of Section 195(1) of Cr. P.C. reads as under: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. The relevant portion of Section 195(1) of Cr. P.C. reads as under: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No Court shall take cognizance - (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate." (emphasis supplied) In view of the above said provisions, there is no complaint to the Court by the Tahsildar, or by the police so that the Court can take cognizance of the offence. The word 'complaint' used in sub-clause (iii) of clause (a) of Section 195(1) of IPC shall be understood as per the definition given to 'complaint' under Section 2(d) of Cr. P.C. As per Section 2(d) of Cr. P.C. "complaint" means, any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Therefore, the police have no jurisdiction to file any report much less a charge-sheet before the Court sofar as the offence under Section 188 of IPC is concerned. 10. The Principal Civil Judge (Junior Division) and Judicial Magistrate First Class, Hospet, while taking cognizance, appears to have very casually put his signature to the filled-up portion of the computerised order sheet wherein Section 504 of IPC is also included which is neither the case of the prosecution nor is the content of the charge-sheet. This shows the non-application of judicious mind by the jurisdictional Magistrate. The order sheet of the Magistrate in taking cognizance reads as follows: "Perused the papers. Cognizance taken against accused for the offence punishable under Sections 143, 147, 504 and 188 read with Section 149 of IPC. Register the case as C.C. in Register, No. 111. By: 20/7" 11. Section 190 of the Criminal Procedure Code, in fact, imposes a responsibility on the Magistrate before taking cognizance to comply with the said provision. Section 190 of the Code reads as under: "190. Cognizance of offences by Magistrates. Register the case as C.C. in Register, No. 111. By: 20/7" 11. Section 190 of the Criminal Procedure Code, in fact, imposes a responsibility on the Magistrate before taking cognizance to comply with the said provision. Section 190 of the Code reads as under: "190. Cognizance of offences by Magistrates. - (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence. - (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." On a meticulous understanding of the above said provision, it makes it clear that the Magistrate has no jurisdiction to take cognizance even upon receiving a complaint or any police report on facts which does not constitute any offence. Therefore, whenever a Magistrate has to take cognizance of any offence, he has to apply his judicious mind, meticulously read the contents of the police report or the contents of the private complaint tiled by the parties, ascertain whether the facts narrated therein constitute any offence, and only thereafter specifically mentioning the said offences, the Magistrate has to take cognizance and proceed with the further proceedings. In the absence of any such facts, constituting any offence, the Magistrate has no jurisdiction to take cognizance and proceed further. 12. The Judicial Magistrates, who are empowered to summon the accused under Section 204 of the Code of Criminal Procedure, should always keep it in mind that summoning the accused is a serious matter and the criminal law cannot be set into motion as a matter of course. The summoning order must reflect that the Magistrate has applied his judicious mind to the facts of the case and the law applicable thereto. The order of summoning the accused need not be a speaking order and a detailed one. But, it should not suffer from any infirmity or illegality. The summoning order must reflect that the Magistrate has applied his judicious mind to the facts of the case and the law applicable thereto. The order of summoning the accused need not be a speaking order and a detailed one. But, it should not suffer from any infirmity or illegality. Where reasons are not assigned, however short it may be, for coming to the conclusion that it is a fit case for issuance of summons, such summoning order would become bad in law. The Magistrates, while issuing process, are not required to meticulously examine and evaluate the materials on record. However, he is only required to record reasons, however short, or brief it may be, which indicate the application of mind by the Magistrate. That is all expected from him at that stage. The expression "opinion" and "sufficient ground" under Section 204 gives an indication that before issuing process, the Magistrate should show that on what material, at least, he has formed his opinion that it is a fit case to issue process. Without applying his judicious mind and without even looking to the facts of the case, mechanically, issuing process only on the basis of the operative portion of the charge-sheet or the complaint does not amount to application of mind by a Magistrate. 13. Looking to the above facts and circumstances and the legal infirmities found in the above said case, I am of the opinion that the learned Magistrate, without applying his judicious mind, has mechanically passed an order taking cognizance of the offences and the same is bad in law. All further proceedings, which has taken place in pursuance of that, is vitiated by a serious irregularity which cannot be cured. Hence, there is no other go for this Court but to quash the proceedings. 14. In view of the above said reasoning, the following order is passed: ORDER The petition is allowed. Consequently, the cognizance taken by the Principal Civil Judge and Judicial Magistrate First Class, Hosapete, in C.C. No. 735 of 2016 for the offences under Sections 143, 147, 188 and 504 read with Section 149 of IPC and all further proceedings thereof are hereby quashed. Consequently, the cognizance taken by the Principal Civil Judge and Judicial Magistrate First Class, Hosapete, in C.C. No. 735 of 2016 for the offences under Sections 143, 147, 188 and 504 read with Section 149 of IPC and all further proceedings thereof are hereby quashed. Registry is directed to send a copy of this order to the Registrar (General) of High Court of Karnataka, to communicate this order to the Judicial Academy for proper guidance to the Judicial Officers, who are at the helm of the affairs. In view of disposal of the main petition, I.A. No. 1 of 2016 filed for stay does not survive for consideration. Hence, the said application stands dismissed.