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Judgment
The learned counsel for the petitioners has filed IA
No.2/2017 praying to permit the petitioners to add an
additional prayer to the main petition as:
"(ii)(a). Set aside the order dated 29.11.2016 passed by the leaned Principal District Judge, Chikkamagalur in Crl.RP No.177/2015."
Heard the learned counsel for the petitioners in this
regard. For the reasons stated in the affidavit filed
along with the application, petitioners are permitted to
add the additional prayer as (ii)(a) to the main prayer of
the petition.
Heard the learned counsel for the petitioners
and the learned counsel for the respondent on the main
petition. The petitioners have called in question the
order passed by the Senior Civil Judge & JMFC at Kadur
in CC No.235/2013 dated 3.7.2013 in issuing process
against the petitioners. The petitioners have also
sought for quashing of the order dated 29.11.2016
passed by the by the Principal District and Sessions
Judge, Chickmagalur in Crl.RP No.177/2016.
The records disclose that the respondent
Smt.Sannaeramma, filed a private complaint u/s.200
Cr.P.C . for the alleged offence punishable u/s.416, 463,
464, 419, 465, 471, 193 and 196 read with Section 34
of IPC. At the first instance, the trial Judge has referred
the complaint for investigation to the jurisdictional
police u/s.156(3) of Cr.P.C .. The Jurisdictional Police
have filed B-report before the court which has been
challenged by the complainant by filing a protest
petition. The learned Magistrate after receiving the
protest petition has directly jumped to record the sworn
statement of the complainant and thereafter issued
summons to the accused. The said irregularity in
following the procedure by the Magistrate was called in
question before the Principal District and Sessions
Judge, Chickmagalur in Crl.RP No.177/2015. The
learned Sessions Judge without looking into these
procedural irregularity has straight away considered the
factual aspects of the matter and dismissed the Revision
Petition. Against the above said orders, the present
petition is filed.
The learned counsel for the petitioners
strenuously contends that the protest petition is bald
and in the said protest petition, there are no allegations
which constitute any offence against the petitioners
herein. Therefore, the learned Magistrate would not
have proceeded on the basis of the protest petition.
Be that as it may, now let me consider whether
the learned Magistrate has followed the procedure as
contemplated under the Cr.P.C . It is evident from the
provisions of Cr.P.C . that after filing of the B report by
the Jurisdictional Police, it is the duty of the learned
Magistrate to issue notice on the B report to the complainant and after the said B report is contested, the
option left open to the Magistrate is to look into the B
report contents and allegations made in the B report, to
constitute any offence. In such an eventuality on the
basis of the report of the police itself, the Magistrate can
take cognizance and issue process against the accused
persons. If the Court is of the opinion that, the B
report filed by the police has to be rejected, in such an
eventuality, he has to consider the objection filed or
protest petition filed by the petitioner and reject the
said B report and thereafter, he can take cognizance on
the basis of the contents of the original complaint
coupled with the protest petition and if it takes
cognizance of the offence alleged in the private
complaint and protest petition, then only he gets
jurisdiction to record the sworn statement of the
complainant as per the provisions of Section 200 of
Cr.P.C. where the opening words of Section 200 Cr.P.C.
begins with -
"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."
After taking the sworn statement, the Magistrate has to
consider the allegations made in the complaint and the
averments made in the sworn statement and give a
finding whether the complaint is liable to be dismissed
u/s.203 of Cr.P.C .. If the Magistrate is of the opinion
that there are sufficient grounds to proceed against the
accused on the basis of a private complaint contents
and as well as the sworn statement, he should give such
finding about his opinion and thereafter issue process
against the accused u/s.204 of Cr.P.C .
The above said procedures have not been
looked into by the learned Magistrate. The learned
counsel for the petitioners has relied upon various
number of rulings in this behalf and the statutory
provisions which are existed in the Cr.P.C . This shows
non application of the judicious mind by the Judicial
officer in not adhering to the procedure contemplated
under the Cr.P.C . Even the learned Sessions Judge has
not bestowed his attention so far as these procedural
irregularity which are incurable in nature while
dismissing the Revision Petition.
Under the above said circumstances, the order
passed by he learned Magistrate and the order passed
in the Crl.RP as noted above deserves to be quashed.
Accordingly, I pass the following:
ORDER
The Petition is allowed. The order passed by the
learned Magistrate in CC No.235/2013 dated 3.7.2013,
in taking cognizance against the petitioners and
consequent order passed by the Principal Sessions
Judge, Chikkamagalur in Crl.RP No.177/2015 are hereby
quashed.
The matter is restored on to the file of the Senior
Civil Judge, Kadur, with a direction that the Magistrate
has to follow the procedure as noted in the body of this
order and then pass appropriate order either u/s.203 or
204 of Cr.P.C .