Shivaraj S/O: Suresh Mesta vs State Of Karnataka

This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the entire proceedings in S.C.No.18/2015 (arising out of P.C.No.87/2012) pending on the file of the Court of Prl. District and Sessions Judge, U.K., Karwar, for the offence punishable under Sections 323, 342, 364, 417, 506 r/w 149 of IPC.

The factual matrix of the case is that the respondent No.2 herein has filed the private complaint before the Principal Civil Judge & JMFC, Bhatkal against 9 persons and other 6 unknown persons with the allegations of the accused No.1 on 05.07.2012 at 10.30 a.m., with the help of other accused kidnapped her husband Shivaram Naik and wrongfully confined him and assaulted him on the head and back and threatened with dire consequences and took his signatures on the cheques belonging to Vijaya Bank, Shirali Branch and also on blank bond papers, promissory notes, inland letters. The Court below referred the matter to PSI Bhatkal Rural Police Station under Section 156(3) of Cr.P.C. for investigation and accordingly the case was registered and this petitioner arrayed as accused No.9. After conducting the detailed investigation and recording the statement of witnesses submitted the 'B' report. The complainant has filed the objections to 'B' report and sworn statements of CWs.1 to 3 were recorded. On hearing the counsel for complainant vide order dated 16.09.2014, without any jurisdiction, the trial Court rejected the 'B' report and took cognizance for the above said offences and thereafter the offence under Section 364 of IPC is exclusively triable by the Sessions Judge and hence the Court below committed the matter to the Sessions Court. Hence, the same is numbered as S.C.No.18/2015 and pending before the Sessions Judge U.K., Karwar.

The petitioner in this petition has contended that he has been falsely implicated in this case and after the investigation the Investigating Officer has rightly filed the 'B' report and nothing is on record about the role of this petitioner and totally it is a false case against him. Hence, the entire criminal proceedings initiated against him is liable to be quashed.

The other grounds urged in the petition that while exercising inherent powers of quashing under Section 482 of Cr.P.C., it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue and chance of an ultimate conviction are looked into and therefore no useful purpose is likely to be served by allowing the continuation of criminal proceedings. The other contention that the petitioner is not involved in any such crime and the same is an after thought and politically motivated and only to harass the petitioner as he knows the sons of accused No.1. Hence, prayed this Court to quash the proceedings.

The counsel for the petitioner in his arguments reiterating the grounds urged in the petition also contended that there cannot be two stages for taking the cognizance and admittedly there is no dispute that case is referred under Section 156(3) of Cr.P.C. and 'B' report has been filed and before passing an order for recording of sworn statement, the Magistrate ought to have taken the cognizance and not after recording the sworn statement as done in the proceedings of the lower Court. The other contention urged by the petitioner that no such cognizance was taken prior to posting the matter for recording sworn statement and taking the cognizance after recording the sworn statement is illegal and the same has to be quashed and the Magistrate did not apply his mind and complied the proviso of Section 200 of Cr.P.C. Hence, it requires to be quashed.

In support of his contention, he relied upon the judgment of the Apex Court in LAWS(SC) 2015 3 110 in the case of D.P. Gulati Vs State of Uttar Pradesh and Others, by relying upon this judgment the counsel contends that in the similar set of facts initiating Section 138 proceedings and filing other complaint, the Apex Court quashed the proceedings against the complaint on the ground that it amounts to abuse of process. The counsel also relied upon the judgment reported in LAWS(SC) 2011 10 65 between Tilaknagar Industries Ltd., Vs State of A.P, by referring this judgment the counsel contends that statutory safeguards must be strictly followed-powers under Section 156(3) of Cr.P.C. can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of offence. The counsel also relied upon the judgment reported in 1997 SCC Online Karnataka 648 between K.S. Mallikarjuna Prasanna Vs Leo Earth Movers, equivalent to ILR 1998 Karnataka 2605, by referring the judgment of Karnataka High Court, the counsel contends that Section 190 and 200 emphasis that taking of cognizance are precede recording of sworn statements and taking cognizance after the examination of the complainant is impermissible in law and it vitiates the entire proceedings. The counsel also relied upon the un-reported judgment of the Karnataka High Court in Criminal Petition No.6135/2009, by referring this judgment he contends that, this Court quashed the proceedings and remitted the matter to the learned Magistrate for fresh consideration under Section 200 of Cr.P.C. taking into similar set of facts. The counsel also relied upon the judgment of this Court passed in Criminal Petition Nos.101850/2014 and connected with other cases, dismissal of the petition seeking an order to quash the 138 proceedings in connection with this particular case. The counsel referring all these judgment vehemently contended that the very taking of cognizance after recording the sworn statement is illegal which not only an irregularity and the same is illegal as held by the Hon'ble Apex Court and this Court. Hence, prayed this Court to quash the proceedings.

Per contra, learned HCGP appearing for the respondent No.1 in his arguments, he contends that the Court below did not commit any mistake and when the complaint was filed exercising the powers referred the matter under Section 156(3) of Cr.P.C. and thereafter the Investigating Officer has filed the 'B' report and the same has been challenged. The Court below proceeded to record the sworn statement of the witnesses, rightly issued the process against this petitioner and not committed any illegality in passing the order of issuance of process. Hence, by invoking Section 482 of Cr.P.C., this Court cannot quash the proceedings.

Having heard the arguments of the counsel for petitioner and counsel for respondents, this Court has to examine whether the Court below has committed an error in issuing the process against the petitioner herein without taking cognizance proceeded to record sworn statement and thereafter taken cognizance and vitiates the proceedings as illegal as contended by the petitioner.

On perusal of the records, no dispute that the complainant has filed the complaint under Section 200 of Cr.P.C. for the offence punishable under Sections323, 342, 364, 417 and 506 r/w 149 of IPC against 9 persons and other 6 persons, this petitioner is accused No.9. On perusal of the contents of the complaint, it is alleged that on 05.07.2012 at about 10.30 a.m., the accused No.1 came and kidnapped her husband with an intention to commit the murder and immediately, the complainant gave the complaint to the Bhatkal Police and on the same day, the police got released her husband. The specific allegation made in the complaint that with an intention to commit the murder, kidnapped him and assaulted him on his head and back, snatched the photo which was in his pocket and cheque book of Vijaya Bank of Shirali Branch and forcibly took the signatures on the blank cheque and caused life threat. As a result, her husband has signed all the cheques and also obtained the signatures on the promissory notes, bond papers and inland letters and also obtained the signatures on the blank paper and her husband revealed the said fact. Hence, the complaint is lodged.

On perusal of the order sheet, it discloses that 'B' report is filed after the investigation and when the 'B' report is filed, an opportunity is given to the complainant to file objections if any and ultimately objections filed to 'B' report on 21.04.2014. After hearing the complainant's counsel posted the matter for recording of sworn statement and sworn statements of CWs.1 to 3 were recorded and considering the contents of the complaint and also the statements of CWs.1 to 3, the trial Court formed an opinion that the material is sufficient to issue the process taking into consideration the averments made in the complaint and sworn statement of the complainant and witnesses and also on perusal of the documents produced by the complainant held that prima facie discloses that there are sufficient materials to proceed against the accused while passing the order. The following order is passed is as under;

ORDER

"B" report filed by Bhatkal Rural Police is rejected.

Cognizance is taken for the offences punishable U/s. 323, 342, 364, 417 & 506 r/w Sec.149 of IPC against the accused No.1 to 9.

Office is directed to register a case as criminal case in Register-III and issue process against accused No.1 to 9 if the list of witnesses is furnished and requisite fee is paid.

The main contention of the petitioner counsel before this Court is that though the said ground is not urged in the petition, during the course of arguments, the counsel appearing for the petitioner has raised the contention that before proceeding to record the sworn statement, the trial Court ought to have taken the cognizance and thereafter ought to have recorded the sworn statement of the complainant and witnesses and not complied the proviso of Section 200 of Cr.P.C.

Before deciding the grounds urged before this Court, I would like to refer the proviso of Section 200, 201, 202, 203, 204, 205 and 190 of Cr.P.C. 200. Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Procedure by Magistrate not competent to take cognizance of the case. - If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, -

(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant to the proper Court.

Postponement of issue of process. -

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section(1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

Issue of process. - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint

(5) Nothing in this section shall be deemed to affect the provisions of Section 87.

Cognizance of offences by Magistrates.

- (1) Subject to the provisions of this chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section(1) of such offences as are within his competence to inquire into or try.

Now let me consider the case on hand, I have already pointed out that the complaint is filed and immediately the Magistrate has referred the matter under Section 156(3) of Cr.P.C. Here, I would like to make it clear that no need to take cognizance before referring the matter under Section 156(3) of Cr.P.C. But in the case on hand, after referring the matter under Section 156(3) of Cr.P.C., the Investigating Officer registered the case and investigated the matter and filed 'B' report. On filing of the 'B' report, an opportunity is given to the complainant to file objections and complainant has filed the objections on 21.04.2014 along with vakalath of Advocate. On hearing the counsel, posted the case for recording of sworn statement. The Magistrate recorded the sworn statement of complainant on 22.07.2014 and also recorded the sworn statement of witness i.e. CW.2 on 20.08.2014 and examined the other witness as CW.3 on 02.09.2014 and heard the matter on 09.09.2014 and passed the order on 16.09.2014. The Magistrate while passing the order on 16.09.2014, has specified that while taking the cognizance of the offence, the Court has to consider only the averments made in the petition and Court is not required to sit and appreciate the evidence at that stage and the Court has to consider the material on record and no need to go into the merits of the case and whether it is sufficient to issue the process into consideration and whether the contents of the complaint constitutes an offence and whether an offence has been made out against the accused and formed an opinion that the contents of the complaint and documents placed on record discloses the offence for which cognizance can be taken by the Court to proceed in the matter. Further held that on perusal of the complaint contents, sworn statement of the complainant and witnesses and also on perusal of the documents produced by the complainant prima facie discloses that there are sufficient materials to proceed against the accused for the offence and by rejecting the 'B' report cognizance is taken and issued the process.

The main contention of the counsel for petitioner by relying upon the judgment reported in ILR 1998 KAR 2605 between K.S.Mallikarjuna Prasanna Vs Leo Earth Movers, this High Court held that taking cognizance should precede recording of sworn statements, taking of cognizance after the examination of the complainant is impermissible in law and it vitiates the entire proceedings. In paragraph No.7 of the said judgment this Court held that the impugned orders passed by the learned JMFC is illegal and contrary to Section 200 of Cr.P.C. and set aside the order and remitted to the learned Magistrate with a direction to follow strictly the procedure laid down in Chapter XV of the Code of Criminal Procedure and dispose of the case in accordance with law. I would also like to refer the judgment of this High court reported in 1997(4) KAR.LJ. 23, wherein this Court held that;

"Cognizance is deemed to have been taken when the Magistrate applied his judicial mind for proceeding under Section 200 of Cr.P.C. 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".

I would also like to refer the judgment of the Apex Court reported in 2006(1) KAR.LJ. 118 (SC), wherein the Apex Court held that

"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 cognizance of offence was taken."

For having taken note of the principles laid down in the judgment referred supra it has to be noted that the action by the learned Magistrate plays an important role whether he 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. By referring these judgments, it is clear that need not necessarily specifically mention that taken cognizance and the same is not mandate of law and only Court has to consider the fact that whether the Magistrate has applied his mind to proceed with the case. In the case on hand, I have already pointed out that immediately upon filing the complaint, matter is referred to police under Section 156(3) of Cr.P.C. and after the investigation he has filed the 'B' report and an opportunity is given to the complainant to protest the 'B' report and accordingly the complainant also filed his objections to the 'B' report. Thereafter, the Magistrate proceeded to record the sworn statement of the complainant. No doubt, after recording the sworn statement while issuing the process the Court below has mentioned that cognizance is taken and also ordered to issue process against the other accused persons and also to this petitioner. While issuing the process in paragraph No.5 of the order specifically formed an opinion by applying his judicial mind since he has referred the contents of the complaint and also considered the sworn statement of the complainant and witnesses and thereafter found prima facie material to proceed against the accused persons. Hence, it is clear that the Magistrate has applied his judicial mind before issuing the process.

Now the question before this Court is whether the Magistrate has to take the cognizance before posting the matter for recording the sworn statement or not and if cognizance is taken after recording the sworn statement whether it vitiates the proceedings or it is only an irregularity.

In the case on hand, it has to be noted that the private complaint is filed and when the complaint is filed, the learned Magistrate did not take cognizance under Section 190(a) perusing the complaint instead of also not examined the witnesses under Section 200 of Cr.P.C. but invoked Section 202 of Cr.P.C. referring the matter to the Investigating Officer under Section 156(3) of Cr.P.C. It has to be noted that Section 202 of Cr.P.C. is clear that if the offence is triable by the Sessions, there is bar to refer the matter directing the Investigating Officer to enquire into the matter and it is specific that provided that no such direction for investigation shall be made whether it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions. In the case on hand, the offence under Section 364 is invoked and the same is triable by the Sessions Court and there is a bar under the statute and this question has been raised before the Supreme Court whether there is a bar the Court can refer the matter to the Investigating Officer and in the judgment of the Apex Court reported in AIR 1976 SC 1672 between Devarapalli Lakshminarayana Reddy and Others Vs Narayana Reddy and Others held that referring Section 202(1) of Cr.P.C. complaint disclosing offences exclusively triable by Sessions Court - Power of Magistrate to send complaint to police for investigation under Section 156(3) - proviso does not debar Magistrate. The Apex Court held that the proviso does not debar Magistrate and hence the Apex Court held that it can be referred also under Section 156(3) Cr.P.C. even if the offence is triable by the Sessions.

Now, let me consider the issue with regard to the taking of cognizance of an offence and it has to be noted that the word taking of cognizance is not defined in the Court but the meaning with regard to the expression taking cognizance of an offence can be said to be taken when the Magistrate applies his mind for proceedings under Section 200 of Cr.P.C. and the same is also reiterated in the very same judgment reported in AIR 1976 SC 1672 and the same also reiterated by the Apex Court in the judgment reported in AIR 1996 SC 204 between Anil Saran Vs State of Bihar and Another, that the word cognizance has not been defined but it is settled law that the Court takes cognizance of the offence and not an offender. Hence, it is clear that taking of cognizance of the offence and not the offender.

The main contention of the petitioner that while issuing the process the Magistrate has taken the cognizance i.e. after recording of sworn statement of PWs.1 to 3. In the case on hand, it has to be noted that the Magistrate did not invoke Section 200 to take the cognizance immediately after filing of the complaint under Section 190(a) and in-stead of invoked Section 202 to refer the matter to the investigating officer and the Investigating officer has filed the 'B' report. When the 'B' report is filed, an opportunity is given to the complainant to file the objections, it has to be noted that the criminal procedure code does not define anything about the filing of the protest petition when the 'B report is filed but the same is recognized by the Apex Court in the judgment reported in (1985) 2 SCC 537 between Bhagwant Singh Vs Commissioner of Police, and held that filing of protest petition is permissible and hence, the Magistrate has given an opportunity to file the protest petition against the 'B' report.

Now the question before this Court is whether the Court below has taken the cognizance before proceeding to record the sworn statement and the counsel in one breath contend that no cognizance is taken before proceeding to record the sworn statement of witnesses and in another breath contends that there cannot be two stage for taking cognizance twice i.e. before recording sworn statement and after recording sworn statement. It is settled law that cognizance has to be taken based on the contents of the complaint before recording the sworn statement of witnesses. The counsel appearing for the petitioner also relied upon the judgment reported in ILR 1998 Karnataka 2605 between K.S.Mallikarjuna Prasanna Vs Leo Earth Movers, and the single judge in this judgment held that cognizance should precede recording of sworn statement and taking of cognizance after the examination of the complainant is impermissible in law and it vitiates the entire proceedings. The counsel relying upon this judgment vehemently contend that taking of cognizance after the examination of complainant is impermissible in law and it vitiates the entire proceedings.

In keeping the principles laid down in the judgment of this Court, I also would like to refer the judgment of this Court reported in ILR 1997 Karnataka 3447 between K.S. Thimmappa Rai Vs A.R. Sadananda, wherein this Court held that Magistrate taking cognizance of the offence after recording the sworn statement of the complainant, its legality questioned and held that he is deemed to have taken cognizance. In this judgment it is held that even though the Magistrate proceeded to record the sworn statement of the complainant without recording that he has taken the cognizance of the offences, it is clearly indicative of the fact that he has decided to proceed under Chapter XV of the Code and therefore he is DEEMED to have taken cognizance of the offence. In the case on hand, it has to be noted that no explicit order has been passed that cognizance has been taken and the same is implied when the Magistrate made up his mind to proceed to record the evidence of sworn statement of the witnesses.

I would also like to rely upon the judgment of this Court reported in ILR 2006 Karnataka 735 between V.S. Joshi and Another Vs N.G.Bhat Chitrigi and Another, wherein it is held that complaint-cognizance of-quashing of complaint-Non mentioning in the order sheet while proceeding to record sworn statement of the witnesses, that cognizance is taken-whether fatal-should proceedings be quashed under Section 482 of Cr.P.C. on such technical grounds- held- The Magistrate need not specifically state in his order that he has taken cognizance of the offences. Taking of cognizance by the Magistrate can be inferred from the facts and other material on record. The very fact that Court below has decided to record the sworn statements after perusing the complaint itself would mean that Magistrate has applied his mind and has taken cognizance of the offences at the initial stage itself. Hence, it can be safely said that the Magistrate has applied his mind and thereafter, recorded the sworn statements of the witnesses. Thus, the subsequent observation of the Learned Magistrate at the time of passing the aforesaid order that the cognizance taken becomes redundant and shall have to ignored. Even otherwise, it may amount to taking cognizance or applying mind to the facts of the case for the second time, at the time of passing of impugned order and the same is not barred. Hence the same cannot be said to be illegal. Moreover, the order of issuing process cannot be set aside merely on such hypertechnical ground. Added to it, no prejudice is caused to the petitioners by non mentioning in the order sheet while proceeding to record sworn statements of the witnesses, that the cognizance is taken. It is not a mandate of law that the Magistrate should mention that he has taken cognizance of the offence, before recording sworn statement.

Having taken note of the principles laid down in the judgment, it is aptly applicable to the case on hand with regard to that there is no any order before proceeding to record the sworn statement that cognizance is taken and also the main argument of the counsel for petitioner that while issuing the process it is mentioned that cognizance is taken and it amounts to taking of the cognizance second time and this Court in the judgment has categorically held that has to be ignored and becomes redundant and even taking of cognizance by applying mind to the facts of the case for the second time at the time of passing of the impugned order and the same is not barred and further held that the same cannot be said to be illegal. Hence, it is clear that the same is not illegal and the judgment of the single bench passed in ILR 1998 Karnataka 2605, not comes to the aid of the petitioner in order to comes to the conclusion that it vitiates the entire proceedings in view of the recent judgment of this Court reported in 2006 referred supra.

It is further important to note that the Apex Court in the judgment reported in (2010) 7 SCC 578 in the case of Shivjee Singh Vs Nagendra Tiwary and Others, held that while incorporating the code of criminal procedure held that Interpretation of (mandatory) provisions of effect of non-compliance-need for procedure - held that Cr.P.C. is a compendium of law relating to criminal procedure-provisions contained therein are required to be interpreted keeping in view that procedural prescriptions are meant for doing substantial justice- If violation of procedural provision does not result in denial of fair hearing or does not cause prejudice to parties, such provision has to be treated as directory notwithstanding use of the word "shall" and unless interpretation it is clear that the words are not to be on technical and procedural prescriptions are meant for doing substantial justice and the same does not cause prejudice to the parties. In the case on hand, it is also to be noted that before examining the witnesses not specifically mentioned that cognizance has been taken and subsequently while issuing the process it is mentioned as taken cognizance and in view of the judgment of this Court, it has to be redundant and the same has to be ignored. I would also like to refer the judgment reported in ILR 1994 KAR 2991 in the case of Samant Vs M/s K.G.N. Traders, held that Act of directing complaint to be registered and examining complainant on subsequent dates is taking cognizance - Further mention cognizance taken only superfluous, does not vitiate proceedings.

Now the question is with regard to whether non mentioning of taking the cognizance before proceeding to record the sworn statement and subsequently mentioning the taking of cognizance as invalidate the proceedings and whether it is only an irregularity.

I would like to refer the provisions of Section 460 of Cr.P.C. and Section 460 is with regard to irregularity which do not vitiate proceedings and hence it is clear if any Magistrate not empowered by law to take cognizance of an offence under clause (a) or clause (b) of sub-section(1) of section 190, it amounts to only irregularity which do not vitiates the proceedings. I also would like to refer Section 461 which says about the Irregularities which vitiate the proceedings. Sub section (k) of Section 461 says if any Magistrate takes cognizance of an offence under clause (c) of sub-section(1) of Section 190, then the proceedings would be vitiated. But this case does not fall under Section 461 of Cr.P.C to vitiate the proceedings.

In the case on hand, a protest memo is filed and thereafter the Magistrate proceeded to record the evidence and I have already pointed out that though not specifically mentioned that cognizance is taken but proceeded to record the sworn statement and hence it is clear that it is deemed that cognizance is taken before recording sworn statement and here it has to be noted that taking of cognizance is applying of judicial mind to proceed with the case and issuing of process is different from taking of cognizance and while issuing of process the Court has to consider the material on record, whether sufficient materials are there to issue the process. I have already pointed out that taking of cognizance is applying of judicial mind and proceeding to enquire into the matter. Hence, the same does not vitiates the proceedings and if there is any irregularity that can be curable and I do not find even any irregularity in the case on hand and the learned Magistrate has proceeded to record the sworn statement and as held by this Court as referred supra and it has to be inferred that he has taken the cognizance and proceeded to record the sworn statement.

Having considered the material on record and also the grounds urged by the petitioner and in the case on hand, the Magistrate has invoked Section 202 directing the Investigating Officer to investigate into the matter and if any matter is referred to investigation need not necessary to take the cognizance i.e. pre-cognizance and when the Magistrate made up his mind to proceed with the enquire into the matter and posted the matter for recording of sworn statement that itself if taking of cognizance as held by the judgment referred supra and in the case on hand has done the same and while issuing the process mentioning of cognizance is taken has to be redundant and ignored as held by this Court and does not vitiates the proceedings. Hence, I am of the opinion that the Court below has not committed an error and the contention of the counsel for petitioner cannot be accepted.

In view of the discussions made above, I pass the following;

ORDER

The petition is dismissed.