Sri Parasuramappa vs Praveen Kumar

Hon''ble Mr Justice K N Keshavanarayana

In this petition filed u/s 482 of Cr.P.C. the petitioner has sought for setting aside the order dated 19.10.2010 passed by the Civil Judge and JMFC (Sr. Dn.), Soraba in PCR No. 27/2007 taking cognizance of the offences punishable under Sections 323, 324, 342, 504 of IPC against him and ordering issue of summons for his appearance. The respondent-complainant filed a private complaint u/s 200of Cr.P.C. on 14.03.2007 against this petitioner, who was then working as Sub-Inspector of Police in Anavatti Police Station in Soraba Taluk alleging the offences punishable under Sections 323, 324, 342 & 504 r/w. 34 IPC. On presentation of the complaint, the learned Magistrate referred the complaint u/s 158(3) of Cr.P.C. to Superintendent of Police for investigation and to submit a report. Pursuant to such reference, case in Crime No. 44/2007 came to be registered in Anavatti Police Station, Soraba Taluk. Shimoga District, and investigation was taken-up. After completing investigation, the Dy.S.P., Shikaripura Sub-Division, Shikaripura, filed "B" summary report. Upon service of notice on ''B'' summary report, the respondent herein filed protest petition in the form of objections. The learned Magistrate after recording sworn statement, of the complainant and the witnesses, by the order impugned in this petition, took cognizance of the offences punishable under Sections. 323, 324 and 504 of IPC and ordered issue of summons to the petitioner herein. It is to quash the said order, the petitioner has presented this petition.

I have heard the learned counsel appearing for the petitioner and perused the records produced.

It is the contention of the learned counsel for the petitioner that the learned Magistrate had no jurisdiction to take cognizance oil 19.10.2010 since the offences alleged took place on 18.02.2007, as such, the period of limitation prescribed u/s 468 Cr.P.C. had expired, therefore, cognizance taken was without jurisdiction. It is his further submissions that the petitioner being a public servant and since all the alleged acts took place in the police station, the learned Magistrate had no jurisdiction to take cognizance in the absence of any sanction u/s 197 of Cr.P.C. It is also his submission that the allegations made in the complaint and the sworn statement of the complainant as well as his witnesses, read as a whole, does not make-out any case for any of the offences, therefore, the cognizance taken and the order directing summons is bad in law as such, it is liable to be set aside.

I have bestowed my serious considerations to the submissions made by the learned counsel for the petitioner. No doubt, the allegations made in the complaint indicates that the incident alleged took place on 18.02.2007 inside the police station of which the petitioner was the Station House Officer. As could be seen from the certified copy of the complaint, the same was presented before the learned Magistrate on 14.03.2007 i.e., less than a month from the date of the offences alleged. Immediately thereafter, the complaint was referred to the police for investigation and after investigation, as could be seen from the certified copy of the order sheet, ''B'' summary report came to be filed on 27.07.2007. Thereafter, the respondent-complainant filed the protest petition. The case was set down for recording sworn statement of the complainant and his witnesses. It was done on 26.09.2009. From that day onwards, the case was being adjourned from time to time without hearing arguments for one or the other reasons and ultimately, by the impugned order dated 19.10.2010 the learned Magistrate took cognizance and ordered issue of summons to the petitioner. of course having regard to the period of punishment prescribed for the offences for which cognizance is taken, Clause(e) of sub-section (1) of Section 468 Cr.P.C. would get attracted. In ether words, for such offences cognizance could not be taken beyond three years from the date of the commission of the offence. On this basis, it is argued that as on the date of taking cognizance, the Court had no jurisdiction. Section 473 of Cr.P.C. is an exception to Section 468. Section 473 opens with words "not withstanding anything contained in the foregoing provisions of this Chapter", may take cognizance of an offence after the expiry of the period of limitation.....''. Therefore, Section 468 is not an absolute one; it is subject to the provisions of Section 473. u/s 473, the Court may take cognizance of any offence after the expiry of the period of limitation prescribed u/s 468, if it is satisfied in the facts and circumstances of the case, the delay is properly explained or it is necessary to do so in the interest of justice. In the case on hand, as noticed supra, though the protest petition was filed immediately after receipt of the notice of filing of ''B'' summary report and though the statements of the complainant and the witnesses on oath were recorded some time in October 2009, the learned Magistrate did not proceed to pass orders immediately thereafter. It was the duty of the learned Magistrate to have passed an order immediately thereafter keeping in mind the provisions of Section 468 Cr.P.C. The act of the Court should not cause prejudice to any one. In the case on hand, having regard to the fact that the Court has failed to take immediate action in passing the orders, the time spent after October 2009, would constitute sufficient cause as provided u/s 473 and in the interest of justice, the delay, if any, in taking cognizance of the offence is required to be condoned. No doubt, the learned Magistrate has not given such reasons. Nevertheless, I find no substance in the contention that the cognizance taken by the learned Magistrate was beyond the period of limitation prescribed u/s 468 of Cr.P.C. In view of the above said facts, the learned Magistrate is justified in taking cognizance even after the expiry of the period of limitation prescribed u/s 468 Cr.P.C.

In the argument with regard to want of sanction u/s 197 is concerned, I find no substance. It, is no part of the duty of the police officer either to detain wrongfully any person or inflict, injury on the body of the person in the Police Station. At any rate, the question as to whether or not an act alleged to have been committed by a public servant was in discharge of his official duty would depend upon the facts and circumstances of the case and want of sanction as per Section 197 of Cr.P.C. will have to be decided depending upon the facts, from state to stage. Therefore, at this stage, it cannot be said that the cognizance taken without sanction u/s 197 of Cr.P.C. is improper. This question is still left open to be considered by the learned Magistrate at the time of final disposal of the case or at any stage before that, if the circumstances demand.

Perusal of the statement made in the complaint, in my considered opinion, prima facie makes-out a case against the petitioner for the offences for which cognizance is taken. Therefore, it cannot be said that there were no materials before the learned Magistrate to take cognizance. In this view of the matter, I find no grounds to entertain this petition and to quash the prosecution launched against the petitioner at the thresh-hold. It is submitted by the learned counsel for the petitioner that a non-bailable warrant has been issued against the petitioner. It is noticed from the certified copy of the order sheet that, though summons issued from the Court was duly served on the petitioner for his appearance, he remained absent. Therefore, left with no alternative, the learned Magistrate has issued non-bailable warrant. Such an order cannot be found fault with. The petitioner being an officer in the police department and who is expected to respect the law, should have appeared before the Court pursuant to the summons issued. It is still open for him to appear before the learned Magistrate and seek appropriate relief. Therefore, looking from any angle, I find no grounds to entertain this petition. Therefore, the petition is dismissed.