B.C. Suresha vs Sumithra

K.N. Keshavanarayana, J.—Though this matter is listed today for admission, by consent of learned counsel appearing on both the sides, matter is heard on merits. Respondent presented a private complaint in PCR No. 110/09, before the Court at JMFC, Mandya on 6.10.2009 against this petitioner and two others alleging the offences punishable under Sections 415 & 420 of Indian Penal Code.

On receipt of the complaint, the learned Magistrate proceeded to record the sworn statement of the complainant on 7.11.2009 and by order dated 5.2.2010, he referred the complaint to the police for investigation in exercise of his power u/s 156(3) of the Code of Criminal Procedure. Pursuant to the said reference, the police registered the case in Crime No. 104/2010 and after completing the investigation filed ''B'' summary report. Respondent field protest petition to the ''B'' summary report. Thereafter, learned Magistrate once again recorded sworn statement of the complainant and by order dated 23.8.2010, directed registration of the case and ordered issue of summons to the persons arrayed as accused.

On coming to know of the same, petitioner as well as other two persons arrayed as accused, filed revision petition before the Sessions Court, Mandya in Crl. R.P. No. 108/2010, The learned Sessions Judge by order dated 22.6.2012 allowed the Crl. R.P. in part, setting aside the proceedings against accused 2 and 3 and affirmed the order of the learned Magistrate insofar as this petitioner-accused No. 1 is concerned. Aggrieved by the said order, petitioner-accused No. 1 has presented this petition. As against the orders dismissing the complaints, insofar as it relates to accused 2 and 3 is concerned, respondent-complainant is not aggrieved since the said order has not been challenged, as such, that order has become final in relation to accused 2 and 3.

In support of quashing of the proceedings, various technical grounds have been raised in the petition.

Having heard the learned counsel appearing on both the sides, I see considerable force in the contentions urged by the petitioner with regard to the illegality in the entire procedure adopted by the learned Magistrate.

As noticed supra, the complaint was presented on 6.10.2009. As could be seen from the endorsement found on the certified copy of the complaint produced, the complaint was presented by the counsel and not by the complainant herself. The learned Magistrate has noticed that the complainant was absent and the complaint was presented by the counsel. The learned Magistrate on receipt of the complaint directed the same to be registered as PCR and the matter was called before the Court on 23.10.2009, from which date the case was adjourned to 7.11.2009 for recording sworn statement. On 7.11.2009, the learned Magistrate recorded the sworn statement of the complainant. From perusal of the certified copy of the order sheet produced, it is clear that before proceeding to record the sworn statement, the learned Magistrate has not indicated that he has taken cognizance of the offence alleged.

Section 200 of the Code of Criminal Procedure requires that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and proceed in accordance with further provisions contained in Chapter XV of Cr.P.C. In other words, recording of sworn statement should precede by taking of cognizance.

As indicated above, after recording the sworn statement, the learned Magistrate by order dated 5.2.2010 referred the complaint to the police u/s 156(3) of Cr.P.C. for investigation. Assuming that since, the learned Magistrate proceeded to record the sworn statement of the complainant, he had taken cognizance of the offence alleged in the complaint and thereafter, he has proceeded to record the sworn statement, the further order dated 5.2.2010, referring the complaint to the police for investigation in exercise of power u/s 156(3) of Cr.P.C. is without jurisdiction.

Having once taken the cognizance and recorded the statement of the complainant, the learned Magistrate could not have reverted back to exercise the power u/s 156(3) of Cr.P.C. He was required to proceed only in accordance with the provisions contained in Chapter XV of Cr.P.C. He could not have put the clock back. The power that can be exercised u/s 156(3) of the Code of Criminal Procedure would be during a pre-cognizance period. Therefore, the order dated 5.2.2010, directing the investigation on the complaint was clearly bad in law and without authority of law. In addition to this, it is also noticed from the certified copy of the sworn statement of the complainant, the learned Magistrate has recorded the same as if it was examination-in-chief, since, the said statement has been recorded with the assistance of the counsel. It has been held in catena of decision that at the stage of recording the sworn statement as required u/s 200 of Cr.P.C. the Magistrate cannot record such statement with the assistance of the counsel since, it is not the evidence recorded as examination-in-chief. Thus, the procedures adopted by the learned Magistrate is unknown to law and it is contrary to the well settled principles of law. Therefore, it is liable to be set aside and the learned Magistrate is required to consider the matter afresh from the stage of presentation of the complaint only against this petitioner. In view of the above, petition is allowed. The entire proceeding in CC. NO. 589/2010 on the file of JMFC, Mandya, is hereby quashed. The learned Magistrate is directed to consider the matter afresh from the stage of presentation of the complaint as against this petitioner-accused No. 1 only.