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2018 DIGILAW 183 (KAR)

Mala D W/o Hanumanthappa v. Shashikala, W/o Sri N. V. Prakash

2018-02-08

K.N.PHANEENDRA

body2018
ORDER : Heard learned counsel for the petitioner and perused the records. At this stage, after hearing learned counsel for the petitioner, I do not find any strong reasons to interfere with the order passed by the learned Magistrate in taking cognizance and issuing summons against the petitioner herein for the offences under section 419, 420 and 426 of IPC. 2. Learned counsel for the petitioner strenuously contends that, it is a private complaint, though the complainant asked for referring the matter to the investigating agency, the court has recorded the sworn statement and taken cognizance and issued summons. Therefore, there is heavy burden on the respondent to prove the allegations and to establish tentatively the alleged offences for the purpose of framing of charges. In that process, the Magistrate has to record evidence under Section 244 of Cr.P.C. by providing an opportunity to both parties and then take appropriate decision. 3. Learned counsel also submits that he may be permitted to raise all the grounds raised herein, before the Magistrate at the time of recording the evidence under Section 244 of Cr.P.C. and plead for his discharge. There is no unreasonable request made by the learned counsel for the petitioner. 4. Though this case is disposed of on merits, but at the time of examining the materials on record, this Court found that the learned Magistrate while recording the sworn statement of the complainant and while passing order, taking congnizance and issuing summons, relied upon the documents produced by the complainant. But those documents were not even tentatively marked for the purpose of looking into those documents. This will create serious problems; Firstly, to say that, if the documents are not tentatively marked for the purpose of their identification, court may not be in a position to identify those documents and rely upon those documents even for tentative purpose for taking cognizance and issuing summons. Secondly, if the documents are not marked, the certified copies of those documents cannot be given to the person, who is really aggrieved by the order of the Magistrate. Secondly, if the documents are not marked, the certified copies of those documents cannot be given to the person, who is really aggrieved by the order of the Magistrate. Therefore, it is just and necessary to direct that, the Magistrates have to mark the documents tentatively even at the time of recording the sworn statement of the complainant for the purpose of identification of those documents and looking into those documents for any purpose and also for the purpose of issuing certified copies of those documents to the person who has right to receive those certified copies. Accordingly the petition is dismissed. However, the petitioner is at liberty to file appropriate application for her discharge under Section 245 of Cr.P.C. If any evidence is required to be produced by both parties, the trial court has to provide an opportunity to both parties and pass appropriate orders on the discharge application in accordance with law. The registry is hereby directed to communicate this judgment to all the Magistrates, who are in the helm of affairs to follow the above said guide lines.