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2019 DIGILAW 2089 (KAR)

Nanjaiah v. State of Karnataka

2019-10-17

K.N.PHANEENDRA

body2019
ORDER : 1. Criminal Petition No.4046/2019 is filed by accused No.11, Criminal Petition No.1721/2019 filed by accused No. 15, Criminal Petition No.4196/2019 filed by accused No.31, Criminal Petition No.4048/2019 filed by accused No.23 and Criminal Petition No.4047/2019 is filed by accused No.25, challenging the order passed by the learned Principal District and Sessions Judge, Ramanagara in Spl.C. No. 56/2017 dated 12.06.2017 in taking cognizance and issuing process against the above said accused persons for the offences punishable under Sections 11, 13(1)(c), 13(1)(d)(ii) (iii) r/w. 13(2) of PC Act, 1988 and Section 23 of Karnataka Transparency in Public Procurement Act 1999 and Sections 420, 465, 468, 406, 409, 477(A), 120(B) of IPC. 2. The order dated 12.06.2017 in Spl.C.No.56/2017 in taking cognizance of the offence is challenged mainly on the ground that the Presiding officer, before taking cognizance, has not applied his mind. After registration of the case formally by CAO/CMO put up the case before the Judge and thereafter, the same was made over to the Principal District and Sessions Judge/Special Judge, Ramanagar and thereafter mechanically summons were issued to accused Nos. 1 to 6 and 8 to 33 vide order dated 12.06.2017. The same is called in question before this Court. 3. It is the contention of the learned counsel for the petitioners that it is the CAO/CMO who has put up the entire order sheet including the opinion expressed for taking cognizance and thereafter registered as a Special Case and after registration, the same was placed before the Principal District and Sessions Judge for further orders of issuance of summons. Therefore, the learned District and Sessions Judge has not applied his mind to the entire charge-sheet papers and taken cognizance but subsequently he only issued summons mechanically on the basis of the orders put up by the CAO/CMO. 4. In this connection, the learned counsel has relied upon an unreported ruling of this Court in Criminal Petition No. 6054/2010 disposed of on 27.08.2013 (Sri N. Dharam Singh vs. State of Karnataka), wherein this Court has observed at paragraph 7 thus: "Taking cognizance of an offence and registering a criminal case against a citizen is an important judicial function of a Magistrate, which has got the effect of encroaching upon the liberty of a citizen. Such action on behalf of a Magistrate should be preceded by a clear application of mind to the facts of the case and a decision has to be taken as to sections to law for which the citizen is sought to be summoned to appear in a criminal case. It cannot be mechanical work of a clerk or a CMO of the Court. In that view of the matter, the order dated 29.07.2009 passed by the learned Magistrate leaves much to be desired and it cannot be termed as a judicial order, which has the effect of encroaching upon the liberty of a citizen." In another decision reported in M/s. Vijaya Bank and Another vs. State by the Labour Enforcement Officer, ILR 2000 Kar. 4773 this Court has held thus: "Taking cognizance of an offence being a judicial act after application of mind, Magistrate should not use "printed pro forma" in which even the words "cognizance is taken" are also printed or typed." 5. Per contra, learned Special Public Prosecutor appearing for the respondent Sri Ashwin S. Halady seriously argued before the Court that it is only a procedural irregularity that occurred in the order sheet. Instead of the Principal District and Sessions Judge signing the first page of the order, he has signed the second page after the words "a case has been registered and put up in the case". Therefore, the entire order, if it is read, it discloses the application of mind by the learned District and Sessions Judge and thereafter issuance of process against the accused persons. The said procedural irregularity, if it does not amount to illegality, normally should not be interfered with by the courts. 6. Therefore, the entire order, if it is read, it discloses the application of mind by the learned District and Sessions Judge and thereafter issuance of process against the accused persons. The said procedural irregularity, if it does not amount to illegality, normally should not be interfered with by the courts. 6. In this connection, the learned counsel has relied upon the following rulings in CRPF Finance Ltd. vs. Shree Shanthi Homes Pvt. Ltd. and Another, (2005) 7 SCC 467 wherein Apex Court has observed thus: "Mere absence of the 'cognizance taken' in the order would make no difference if other materials on record are sufficient to show the application of mind by the judicial officer and issuance of the process." In the said case, it is observed by the Hon'ble Apex Court that though the word cognizance taken has been used which is at the signature and seal of the judicial magistrate, but the subsequent order passed by the learned Magistrate shows that the learned Magistrate has proceeded to record the sworn statement of the complainant and thereafter once again on 31.07.2008 passed a detailed order against the respondents finding that there was no ground to proceed against the accused persons and thereafter issued process. In my opinion, the above said ruling is not strictly applicable so far as this case is concerned. 7. In another ruling relied upon by the learned counsel in Criminal Appeal No. 479/1999 disposed of on 08.04.2004 (Dalbir Singh vs. State of U.P.) the Hon'ble Apex Court has observed thus: "Mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice." Therefore, relying upon the said decision, learned counsel pointed out that it is only a mere irregularity and does not amount to illegality. Therefore, the order impugned does not require interference by this Court. 8. Therefore, the order impugned does not require interference by this Court. 8. Before adverting to the above-said rival contentions, I feel it just and necessary to extract the order passed by the learned Principal District and Sessions Judge before issuance of summons to accused persons, which reads as herein below: "In the Court of PRL DISTRICT AND SESSIONS JUDGE, RAMANAGARA RAMANAGARAM Filing No.SPL.C/56/2017 Registration No. SPL C/56/2017 Complainant vs. Accused (1) Ramanagara Lokayuktha PS (1) A1 Gangadharaiah and others (2) A2 A. Nataraju (3) A3 H.S. Venkatesh (4) A4 Kantharaju (5) A5 K.R. Ananda Kumar (6) A6 K.C. Prabhakar (7) A7 G.K. Chandrashekar (dead) (8) A8 T.V. Munkudan (9) A9 Shankar (10) A10 Kemparaju (11) A11 Nanjaiah (12) A12 D. Udayashankar (13) A13 Sadashivareddy B.Patil (14) A14 K.B. Devaraj (15) A15 R. Govindaraju (16) A16 Srinivasa (17) A17 H.B. Puttaswamy @ Puttaswamy Gowda. (18) A18 G.S. Siddalinga Kumar (19) A19 V. Krishna (20) A20 S.V. Srinivas (21) A21 R. Ravi (22) A22 Dhananjaiah (23) A23 Venkatesh (24) A24 H. Narayanappa (25) A25 Venkataramaiah Venkataramu (26) A26 J. Jagadish. (27) A27 K. Prakash (28) A28 S. Bhairegowda (29) A29 T. Ramesh (30) A30 G.L. Anjanappa (31) A31 G. Kumar (32) A32 L. Umashankar (33) A33 Rudraswamy FIR No.05/2013 Police Station: RAMANAGARAM LOKAYUKTA PS Nature of Case: Special Case Provisions of Law: Prevention and Corruption Act, 11, 13(1)(c) Prevention and Corruption Act 13 (1d)(ii)(iii) IPC 420, 465, 468, 406, 409, 477(a), 120(b) Date of Filing: 12.06.2017 Date of Registration: 12.06.2017 Relief: The Deputy Superintendent of Police Karnataka Lokayuktha, P.S. Ramanagara has re-submitted Charge Sheet in Crime No.05/2013 (Spl.C.No.69/2014) on 06.06.2017 against the accused No. 1 to 33 for the offences punishable under Sec. 11, 12, 13(1)(c), 13(1)(d)(ii) (iii) r/w. 13(2) of PC Act, 1988, 23 of Karnataka Transparency in Public Procurement Act 1999 and 420, 465, 468, 406, 409, 477(a), 120(b) of IPC. Accused No.1 to 6, 8 to 14 and 16 to 33 are on Court Bail. Accused No. 7 is reported to be dead. Accused No. 15 is on anticipatory bail. FIR and connected paper are herewith put up. Prosecution has cited 90 witness in the charge sheet. NOTE: Karnataka Lokayuktha P.S. Ramanagara had submitted Charge Sheet dated 21.07.2014 which was returned citing Crl.P.5134/2014 clubbed with Crl.P.5148/2014 on the files of Hon'ble High Court of Karnataka. Accused No. 7 is reported to be dead. Accused No. 15 is on anticipatory bail. FIR and connected paper are herewith put up. Prosecution has cited 90 witness in the charge sheet. NOTE: Karnataka Lokayuktha P.S. Ramanagara had submitted Charge Sheet dated 21.07.2014 which was returned citing Crl.P.5134/2014 clubbed with Crl.P.5148/2014 on the files of Hon'ble High Court of Karnataka. Further, Charge Sheet has re-submitted on 18.03.2016 which too was returned citing Crl.P.3826/2016 on the file of Hon'ble High Court of Karnataka. The fresh case will be registered after the closure of old case No.Spl. Case No. 69/2014. Perused the charge sheet and enclosures. I find sufficient materials to proceed further against the accused No.1 to 6, 8 to 33 for the offences alleged. Hence Cognizance taken against the accused No. 1 to 8 for the offences punishable under Sec. 11, 13(1)(c), 13(1)(d)(ii) (iii) r/w. 13(2) of PC Act, 1988, 23 of Karnataka Transparency in Public Procurement Act 1999 and 420, 465, 468, 406, 409, 477(a), 120(b) of IPC. Accused No. 9 to 11, 21 to 33 for the offences punishable under Sec. 12 of PC Act, 23 of Karnataka Transparency in Public Procurement Act 1999 and 420, 465, 468, 406, 409, 477(a), 120(b) of IPC. Accused No. 12 to 20 for the offences punishable under Sec. 11, 13(1)(c), 13(1)(d)(ii) (iii) r/w. 13(2) of PC Act, 1988, 23 of Karnataka Transparency in Public Procurement Act 1999 and 420, 465, 468, 406, 409, 477(a), 120(b) of IPC. Registered the case as Special Case. Sd/- CAO/CMO Registered and put up/Made Over this case to the PDJ court for disposal according to law. Sd/- PRL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, RAMANAGARAM S. No. and Date Proceedings Case Registered as Spl.C.56/17 on 12.06.2017 Issue Summons to Accused No.1 to 6 and 8 to 33. R/by. 03.08.2017 Sd/- 12/6 Sd/- (PRAKASH J. NADIGER) Prl. District and Session Judge, Ramanagara Issued S/S to Acd. 1 to 6 and 8 to 33 Sd/- 13/06/2017." 9. The above-said order sheet discloses that the order sheet was put up by CAO/CMO and after registration of the case the same was put up before the Principal District and Sessions Judge, Ramanagara and the same was allocated to the Principal District and Sessions Judge, Ramanagara and on the same day summons were issued to accused Nos. 1 to 6 and 8 to 33. 1 to 6 and 8 to 33. In this particular aspect, as noted above, the CAO/CMO has signed the order sheet till the registration of the case as a special case. The order sheet also discloses that accused No.7 was reported to be dead, but cognizance was taken against a dead person, i.e., accused No.7 for all the offences. Therefore, it creates a doubt whether the entire order sheet was prepared and put up by CAO/CMO and after registration of the case the same was placed before the learned District and Sessions Judge and thereafter mechanically without applying judicious mind summons were ordered to be issued. Therefore, by looking to the above-said facts and circumstances, it does not appear tome that the learned District and Sessions Judge has personally applied his mind to the entire charge-sheet papers and thereafter taken cognizance. Otherwise, he would have specially mentioned about the death of accused No.7 and taken cognizance only against accused Nos. 1 to 6 and 8 to 33. Another important aspect to be noted is that the above-said order sheet discloses that it is ordered for registration of the case as a Special Case is not mentioned in the order sheet just above the signature of the CAO/CMO but after registration of the case the same was placed before the Principal District and Sessions Judge, Ramanagara who thereafter issued summons. Therefore, it creates a serious doubt with regard to whether after going through the entire charge sheet it appears CAO/CMO has prepared the order sheet to put up and thereafter the District and Sessions Judge has issued summons. Even there is no mention that after registration of the case the learned District and Sessions Judge, before issuance of the summons, applied his mind with regard to the earlier order available and put up by the CAO/CMO in order to cross check whether the order sheet has been properly put up or not because the accused No.7 though dead, cognizance was taken against the said person. This also creates a serious doubt with regard to the personal application of mind by the Presiding Officer. 10. This also creates a serious doubt with regard to the personal application of mind by the Presiding Officer. 10. The fundamental basic principles of criminal jurisprudence, particularly when a case is filed by the Police by filing a charge sheet, the Magistrate or the concerned Judge is duty bound to apply his mind in order to ascertain under Section 190 of Criminal Procedure Code before taking cognizance that the Magistrate may take cognizance of the offence upon receiving a complaint of facts which constitute such offence, upon a police report of such facts and upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. Therefore, the prerequisite before taking cognizance is that the facts which are enumerated in the charge-sheet must constitute an offence under any penal law for the time being in force. Therefore, it is the judicial act of the particular judge that he has to peruse the entire charge sheet so as to ascertain whether any offence has been constituted and thereafter has to take cognizance of those offences only. Taking of cognizance is not a mechanical act of the judicial officer as noted above, it affects the valuable constitutional right of liberty of a person. If such cognizance has to be taken, it has to be decided by the Judge after going through the entire charge-sheet papers. It is a simple narration in the order that "I find sufficient material to proceed further against the accused" that portions appears to be typed in a mechanical manner. The learned District and Sessions Judge's application of mind to issue process against the accused is also not depicted in the order sheet. Of course, there need not be any detailed order be passed by the learned District and Sessions Judge. But the order has to be passed after going through the entire charge- sheet papers. The Court may not be in a position to take cognizance of the offences which are not based on any facts. Therefore, it is incumbent upon the judicial officer to examine the entire charge-sheet papers to find out whether cognizance can be taken and process can be issued against accused or not. Otherwise, unnecessarily for all the offences if cognizance are taken and summons are issued, the judicial action takes away the valuable rights of the accused persons. Therefore, it is incumbent upon the judicial officer to examine the entire charge-sheet papers to find out whether cognizance can be taken and process can be issued against accused or not. Otherwise, unnecessarily for all the offences if cognizance are taken and summons are issued, the judicial action takes away the valuable rights of the accused persons. Therefore, in the above said facts and circumstances of the case and when serious doubt is created with regard to the personal application of mind by the judicial officer in taking cognizance and issuance of process, the order has to be quashed. I pass the following: ORDER: (1) The writ petitions are allowed. The order dated 12.06.2017 passed by the learned District and Sessions Judge/Special Judge, Ramanagara, against the petitioners herein, is quashed. (2) The matter is remitted to the trial court with a direction to the learned District and Sessions Judge/Special Judge to go through the entire charge-sheet papers and then pass appropriate orders with reference to taking of cognizance and issuance of process against accused persons, in accordance with law, in so far as it relates the petitioners herein. (3) The above-said order in so far as it relates to the other accused persons is not disturbed. (4) The learned District and Sessions Judge/Special Judge is hereby directed to pass appropriate orders as expeditiously as possible, in any case, within an outer limit of one week from the date of receipt of a copy of this order. 11. Since the main matter itself is disposed of, pending consideration of I.A.No.1/2019 does not arise and the same stands dismissed.