Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1355 (KAR)

Ramanna Gowda @ Ramegowda v. State Of Karnataka

2019-06-20

P.S.DINESH KUMAR

body2019
JUDGMENT : P.S. Dinesh Kumar, J. Second respondent filed FIR No.384/2015 on 31.12.2015 in Soladevanahalli Police Station, alleging that accused had abused and threatened petitioners with dire consequences and removed the photograph of Shri Ambedkar. Police, after investigation have filed charge sheet alleging commission of offences punishable under Sections 447, 504, 506, 355 r/w 34 of IPC and 3(1)(10) of ST & ST Act. 2. Learned Special Judge, by order dated 30.04.2016, has issued process. Petitioners, in this petition, have challenged criminal proceedings pending before the learned Special Judge. 3. Shri Sunil S.Rao, learned advocate for the petitioners contended that the order passed by the learned Sessions Judge dated 30.04.2016, is without application of mind. He placed reliance on the judgments of the Hon'ble Supreme Court in Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609 (paragraph No.40) and Mehmood Ul Rehman Vs. Khazir Mohammad Tunda and others., (2015) 12 SCC 420 (paragraph No.22). In substance, the contention of learned Counsel is that order of taking cognizance must demonstrate that learned trial Judge had applied his mind. He argued that the order passed by the learned Session Judge does not disclose application of mind. Accordingly, he prayed for allowing this petition. 4. Smt.Namitha Mahesh, learned HCGP for the State and Smt.Manjulamma N., learned advocate for the complainant/respondent No.2 argued opposing the petition. 5. I have carefully considered rival submissions and perused the records. 6. The order dated 30.04.2016 reads as follows; "Issue s/s to A1 to A4 retd. By 5/8" 7. In Sunil Bharti Mittal(supra), the Hon'ble Supreme Court has held at paragraph No.48 as follows: "48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not." 8. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not." 8. In Mehmood Ul Rehman(supra), the Hon'ble Supreme Court has held at paragraph No.22 as follows: "22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at the stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceedings against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment." (emphasis supplied) 9. Shri Sunil Rao, is right in his submission that the impugned order does not demonstrate that learned Sessions Judge has perused the material on record and applied his mind. Hence, the same is unsustainable in law. 10. Resultantly, this petition merits consideration and it is accordingly allowed. The order dated 30.04.2016 in Spl.C No.87/2016 passed by the Principal District and Sessions Judge, Bangalore Rural District, is set aside. The matter is remitted to the learned Sessions Judge for fresh consideration in accordance with law from the stage of taking cognizance. No costs.