Princes Franklyn vs D. Babu

K.N. Phaneendra, J.—Heard. Perused the records.

The present petition is filed for quashing of the entire proceedings in CC No. 18976/2009 pending on the file of the VIII Addl. CMM, Bangalore, which is registered for the offence punishable u/s 468, 471, 420, 201 of IPC.

The learned Senior counsel for the petitioner contends that there are legal lacunas in this particular case apart from the merits of the case. The learned Magistrate without taking cognizance of the offences alleged in the complaint proceeded to record the Sworn statement of the complainant. He further submits that the learned Magistrate in utter violation of Section 200 Cr.PC., issued summons to the witness u/s. 91 at the stage of recording the Sworn statement of the complainant and lastly, he contends that even after recording the statement of the witnesses and the complainant, the Trial Court has not recorded its reasons and satisfaction with regard to the constitution of the offences, on the allegations made, before issuing summons to the accused, in a very mechanical manner, the Trial Court has passed the order issuing process against the accused which deserves to be set aside by this Court. He further contends that on perusal of the complaint averments and the statement of the complainant, it does not disclose any offence being committed by the accused/petitioners herein. Even broadly looking into the said allegations, they do not constitute any offence against the accused. Therefore, he pleads for quashing of the entire proceedings.

Learned counsel for the respondent strenuously contends that the contentions taken up by the petitioner''s counsel are only irregularities in following the procedure and no illegality has been committed by the learned Magistrate. Therefore, he contends that those irregularities are curable in nature. Therefore, on those grounds, the proceedings cannot be quashed. He further submitted that the complaint averments and the statement made by the witnesses clearly discloses the commission of the offence by the accused. Therefore, issuance of process by the Trial Court is in accordance with law and the same does not call for any interference at the hands of this Court particularly u/s. 482 of Cr.PC.

On perusal of the records, it discloses that, the respondent herein filed a private complaint which is registered in PCR No. 4263/2009, later culminated in CC No. 18976/2009. The complaint was lodged making certain allegations that the accused being the Principal of Bishop Cotton Girls'' School, has issued fake Transfer Certificate and Marks List by collecting money from most of the parents. The money collected fraudulently had been used for personal gain, no receipts have been issued for collecting the money. Therefore, it is submitted that this particular averment amounts to commission of offence punishable u/s. 420, 465 and 471 of IPC and the same has been re-iterated in the Sworn statement of the complainant.

Now, coming to the legal lapses, as argued by the learned counsel for the petitioner that, on the date of presentation of the complaint, the Magistrate has neither taken any cognizance nor mentioned that he has gone through the averments made in the complaint and the Sworn statement and came to the conclusion that allegations made are sufficient to constitute any offence and the Court has got jurisdiction to proceed against the accused.

Section 190 of Cr.PC. defines under what circumstances, the learned Magistrate can take cognizance, though such wordings are not there u/s. 200 of Cr.PC. Section 190 of Cr.PC. says that the learned Magistrate has to apply his mind upon receiving the complaint with reference to the facts of the case and he should come to the conclusion that the averments made in the complaint constitute some offence. If the learned Magistrate has no jurisdiction to try those offences, at that threshold itself, the learned Magistrate has to transfer the said case to the competent jurisdictional Magistrate or to return the complaint for proper presentation. Therefore, in order to comply these two important aspects, the Magistrate has to apply his mind to the contents of the complaint.

In this case, as rightly argued, such exercise has not been taken up by the learned Magistrate. The learned counsel for the respondent drew my attention to the decision of this Court between M/s Visva Cement Products Vs. Karnataka State Financial Corporation, Gadag, , this Court has held that-

"Cognizance is deemed to have been taken when the Magistrate applied his judicial mind for proceeding u/s 200 Cr.PC. In this case, the Magistrate had recorded the sworn statement of the witnesses and after that he issued process to the accused persons. Therefore, the Court has held that the Magistrate has taken cognizance in this case."

The factual matrix of the above case disclosed that at the time of issuing of process, the learned Magistrate has applied his Judicial mind to the facts and circumstances of the case and to the contents of the Sworn statement and the complaint averments to come to the conclusion that it is a fit case for issuing process. Therefore, in my opinion, the above said ruling on facts are not applicable to the facts of the present case.

In another ruling of this Court between CREF Finance Ltd. Vs. Shree Shanthi Homes Pvt. Ltd. and Another, , wherein the Hon''ble Apex Court has held that-

"Head Note-Offence complained of-Mode of taking cognizance of-No particular mode, prescribed-Taking cognizance does not involve any formal action and occurs as soon as Magistrate peruses complaint and comes to conclusion that complaint discloses commission of offence complained of and that there is case to be inquired into-Where Magistrate, on perusing complaint had come to the conclusion that there is triable case and accordingly proceeded to record statement of complainant and issued process, it must be held that cognizance of offence was taken."

(emphasis supplied)

In the above cited decision also, the action of the learned Magistrate played an important role as the records depicted that the Magistrate has applied his mind to the facts and circumstances of the case and thereafter decided to take cognizance and proceeded to record the Sworn statement of the accused. Even specific mentioning of the words, that "taken cognizance" is not the mandate of law, nevertheless, the records with all certainty, should depict the application of mind by the learned Magistrate.

In this regard, the learned Senior counsel has drawn my attention to a unreported decision of this Court in Crl.P. No. 4246/2003 c/w. Crl.P. 4244/2003 dated 13.3.2008 betweenRashtra Rachana Printers and another Vs. M.V. Murthy, wherein, this Court after relying upon the decisions of the Hon''ble Apex Court in the case of (1) S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and Others, and (2) State of West Bengal and another Vs. Mohd. Khalid and others reported in AIR 1995(1) SCC 684 at paragraph 9 has come to the conclusion that-

"The word "cognizance" indicates the point when a Magistrate or a Judge fast takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or a Judge".

In view of the decisions cited supra, submission made by the learned counsel for the respondent on presentation of the complaint the learned Magistrate has proceeded to record the Sworn statement and issue summons u/s. 204 of Cr.PC. which would be sufficient to hold the learned Magistrate has taken cognizance of the offence, cannot be accepted."

Therefore, this ruling indicates that mere recording of the Sworn statement of the complainant and the witnesses, it does not amounts to compliance of Section 200 Cr.PC. in its completeness.

In the background of the above said decisions, now let me consider the factual matrix of this case. On presentation of the complaint, of course, the learned Magistrate on the complaint itself has mentioned that the complainant was present, presented the complaint. Perused the same and directed the office to put up for hearing. The learned Magistrate after words recorded the Sworn statement of the complainant, but later, the Magistrate has not passed any order or not clarified that way he has posted the case for hearing, but directly he proceeded to record the Sworn statement of the complainant. It is clear from the records that the learned Magistrate at the initial stage has not applied his mind. The word "perusal" used by the Magistrate does not indicate that he has applied his mind to the entire facts of the case, whether any averments made in the complaint are sufficient to constitute any offence and to proceed against the accused.

Subsequently, the learned Magistrate recorded the Sworn statement of the complainant and issued summons u/s. 91 to the witness. Though the learned counsel contended that u/s. 200 Cr.PC., there is no scope for issuance of any process to any witness u/s. 91 Cr.PC. Section 91 of Cr.PC. clearly indicates that at any stage of criminal proceedings, such powers can be exercised by the learned Magistrate, i.e., during enquiry or at the time of trial. As soon as the complaint is presented before the Court, enquiry starts and therefore, the learned Magistrate has not committed any error in issuing summons to the witness for production of the documents and thereafter recording the statement of the said witness. The procedure adopted for recording of the statement of the witness is also attacked by the learned counsel on the ground that oath has not been administered to PW 2.

Looking to the statement of PW-2 i.e. Irin Athishtam, though it does not specifically disclose that the witness was duly sworn, but it is specifically mentioned that it is the sworn statement of the witness u/s. 200 Cr.PC. That itself is the indication that only after administering oath, the Sworn statement was recorded and on 28.9.2009.

The learned Magistrate has passed an order issuing process against the accused, this order passed by the learned Magistrate, in my opinion, play a dominant role. It is stated by the learned Magistrate that the Sworn statement and the documents produced by the complainant prima facie prove forgery and cheating. Hence, summons had been issued for appearance of the accused as prima facie case has been made out. Mere recording of the word "prima facie case is made out", it does not disclose that the learned Magistrate has applied his judicial mind. Atleast he should have stated as to what allegations have been made against the accused, whether it constitute any offence or offences alleged.

Therefore, in my opinion, looking to the first day and the last day of order sheet, though on several occasions, the case is posted for hearing does not disclose that the Magistrate has applied his mind to the factual matrix of this case and the contents of the Sworn statement and thereafter came to the conclusion that there is a prima facie case made out against the accused. Hence, this is a case which deserves to be remitted to the learned Magistrate for fresh consideration u/s. 200 Cr.PC. in accordance with law, by meticulously following the observations made above.

In the circumstances, I pass the following order:

Petition is partly allowed. The Order passed by the learned Magistrate in issuing process against the accused is hereby quashed and the matter stands remitted to the Jurisdictional Magistrate to follow the procedure contemplated u/s. 200 of Cr.PC. from the stage of presentation of the complaint before the Court.