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2019 DIGILAW 1237 (KAR)

Raheem Khan v. State Of Karnataka

2019-06-13

ASHOK G.NIJAGANNAVAR

body2019
JUDGMENT : Ashok G. Nijagannavar, J. This petition is filed under Section 482 Cr.P.C. to quash the impugned order dated 19.01.2019 and further proceedings pursuant to it in C.C.No.15/2019 pending on the file of Prl. Chief Judicial Magistrate, Bidar, for the offences punishable under Section 123(3) of Representation of People Act. In the case on hand, the records would disclose that the initially the case was registered for the offences punishable under Section 123(3) of Representative of People Act and after investigation the charge sheet is filed for the offences punishable under Section 123 (3) of the along with Sections 171(C), 171(F) and Section 188 of IPC. 2. The facts leading to this petition are that on the basis of the complaint filed by Avinash Government Official during legislative assembly elections filed a complaint stating that he was appointed as a Nodal Officer to monitor and supervise that election code of conduct is not violated. On 30.04.2018 afternoon at about 1:00 p.m. there was a meeting held by the Congress party. The candidate of the Congress party has given speech with an intention to disturb communal harmony among Hindu and Muslim communities. The speech made by the Congress candidate was with sole intention to commit breach of public peace, by creating difference of opinion among Hindu and Muslim community. 3. On the basis of the said complaint, the PSI of town police station Bidar has registered a case in Crime No.51/2018 under Section 123(3) of representation of People Act. After conducting investigation, the police have filed a charge sheet for the offences punishable under Sections 171(C), 171(F) and Section 188 of IPC read with Section 123(3) of Representation of People Act. In pursuance of the charge sheet filed, the learned Magistrate has passed the order for taking cognizance of the aforesaid offences. The impugned order and further proceedings in C.C.No.15/2019 are challenged by the petitioner. 4. Heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State. 5. Learned counsel for the petitioner submitted that the procedure adopted by the Election Officer for filing complaint before the jurisdictional police is not in accordance with law. The procedure prescribed under Section 195 Cr.P.C. is not followed. The learned Magistrate has passed the order for taking cognizance mechanically without application of mind. Thus, the impugned order dated 19.01.2019 and proceedings in C.C.No.15/2019 cannot be sustained in law. The procedure prescribed under Section 195 Cr.P.C. is not followed. The learned Magistrate has passed the order for taking cognizance mechanically without application of mind. Thus, the impugned order dated 19.01.2019 and proceedings in C.C.No.15/2019 cannot be sustained in law. 6. In support of his contentions, the counsel has relied on following decisions: 1. M.S.Ahlawat vs. State of Haryana and Another, (2000) 1 SCC 278 2. Sachida Nand Singh and Another vs. State of Bihar and Another, (1998) 2 SCC 493 3. in the case of Thipparaju vs. State of Karnataka, (2018) 4 KarLJ 695 4. in the case of Dr.K.P.Gopal Krishna vs. H.Hariyappa, Sub-Inspector, Jeevanbheema Nagar, Police Station, Bengaluru and Another, (2018) 1 KarLJ 469 5. in the case of Sri F.J.M.Crasta vs. The State of Karnataka by its Secretary, Education Department and Others, (2018) ILR(Kar) 369 7. Per contra, learned High Court Government Pleader submitted that the order passed by the learned Magistrate is in accordance with law. There are no valid grounds to interfere with the said order. Thus, petition deserves to be dismissed. 8. The first and foremost contention of the learned counsel for the petitioner is that the procedure prescribed under Section 195 Cr.P.C. is not followed. The police have conducted investigation on the basis of the complaint filed by the Election Officer and charge sheet has been filed which is not permissible. 9. Section 195 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, or 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; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 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 10. In the case of Thipparaju (supra) observed as under: 14. The provisions of Section 2(d) of Cr.P.C. defines the 'complaint' which reads as under: "2(d) "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." 15. Admittedly, in the present case, the public servant has not lodged any complaint before the jurisdictional Magistrate in writing as contemplated under Section 195 of Cr.P.C. being mandatory and there being noncompliance, the Magistrate has committed illegality in taking cognizance of the offences i.e., without the complaint being made to him in writing by the public servant concerned. 16. This Court in identical circumstances in the case of Sri Manikanta v. State of Karnataka and Others, in W.P.No.23611 of 2015, dated 16.06.2015, wherein also the police have registered a case in Crime No.167 of 2014 for the offences punishable under Sections 78 and 79 of the Karnataka Police Act and also under Section 188 of IPC. This Court has come to the conclusion that the registration of case under Section 188 of IPC becomes illegal as bar contained under Section 195 of Cr.P.C. held that the remaining provision under Sections 78 and 79 of the Karnataka Police Act could not have been investigated by the police without a valid permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. Therefore, this Court has quashed the proceedings. 11. In the case of Dr.K.P.Gopal Krishna (supra) observed as under: In this regard, Section 195 of Cr.P.C. clearly indicates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. These provisions, in fact, have not been looked into by the learned Magistrate before passing the impugned Order. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction to issue summons against the accused. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction to issue summons against the accused. This type of order passed without looking into the law should be deprecated, such Officers shall be properly trained in the Judicial Academy often calling them for training. The Learned Magistrate who has passed the order should have gone through the provisions under Section 188 of IPC and 195 of Cr.P.C. before issuing any process. Calling a person to the Court by issuing summons or warrant, is a very serious act of the Court. If unnecessarily or without any law, any orders are passed, it virtually creates a paralytic stroke to the legal right of a person. The court cannot have any exception that due to some oversight or due to some pressure of work, such act has been done. Such explanation is not acceptable in the judicial system. It is the duty of the learned Magistrate before taking cognizance of the offence to go through the contents of the charge sheet or private complaint. First they have to ascertain whether any offence has been constituted after analyzing the averments made in the charge sheet. Secondly, they have to ascertain as to whether the court has got jurisdiction to entertain the charge sheet. Thirdly, whether there is any legal impediment to take cognizance as to whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India. 12. In the case on hand, the records disclose that on the basis of the complaint filed by the Election Officer, the police have registered the case and have conducted investigation for the aforesaid offences. The learned Magistrate had taken cognizance and has passed the order mechanically without looking into the contents of the charge sheet. 13. Admittedly, in the present case public servant has lodged a complaint before the police instead of filing the complaint before the Magistrate. The learned Magistrate had taken cognizance and has passed the order mechanically without looking into the contents of the charge sheet. 13. Admittedly, in the present case public servant has lodged a complaint before the police instead of filing the complaint before the Magistrate. Therefore, the initiation of proceedings on the basis of complaint filed by the Election Officer and subsequently the cognizance taken by the Magistrate is contrary to law and procedure prescribed. Hence, the initiation of proceedings in C.C.No.15/2019 cannot be sustained in law. 14. In view of the aforesaid reasons, the criminal petition is allowed. The impugned order dated 19.01.2019 and entire proceedings in C.C.No.15/2019 are hereby quashed.