IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.3166/2017 BETWEEN:
M.S.Shivananda S/o Late Shivappa Aged 50 years Occupation: Member Mullusoge Gram Panchayath Kushalnagar R/o Mullusoge Village Kushalnagar Hobli Kodagu District Pin – 571 234 ... Petitioner (By Sri Prasanna Kumar P, Advocate) AND:
1. State of Karnataka by Kushalnagar Police Station Kushalnagar Circle Somwarpet Tauk Kodagu District Represented by its State Public Prosecutor High Court Building Dr.B.R.Ambedkar Veedhi Bengaluru – 560 001 2. Sri P.Chandrashekar S/o Not known to petitioner Age: Major Executive Officer Panchayath Development Somwarpet Kodagu District – 571 234 ...Respondents (By Sri S.Rachaiah, HCGP for R1) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 21.01.2016 passed by the Civil Judge and JMFC, Kushalnagar in C.C.No.56/2016 thereby taking cognizance against the petitioner herein for the offence p/u/s 406, 409, 465, 468, 471 and 477A r/w 34 of IPC and consequently the entire proceedings insofar as the same relates to the petitioner/accused No.2, etc.
This Criminal petition coming on for admission this day, the Court made the following:
ORDER Heard Sri Prasanna Kumar P, learned counsel appearing for petitioner and learned High Court Government Pleader for State. Perused records.
2. By consent of learned Advocates, matter is taken up for final disposal, though it is listed for admission.
3. Petitioner herein has been arraigned as accused No.2 for the offence punishable under Sections 406, 409, 465, 468, 471, 477A read with Section 34 of IPC in C.C.No.56/2016 and he is seeking for quashing of said proceedings, contending inter-alia that learned Magistrate has mechanically taken cognizance of the offence alleged against petitioner without application of mind and that too by filing up proto-type order sheet, which was in a printed format by filling up the blanks which would clearly indicate that there has been total non-application of mind. Learned counsel would also submit that averments made in the complaint and also in charge sheet would clearly indicate that whole case of the prosecution is against accused No.1, who used to fill up the cheques with certain amounts and thereafter obtain signatures of the petitioner who was the then President of the Panchayath and there being no allegation of mens-rea on the part of petitioner, which is sine quo non for initiation and continuation of criminal proceedings against petitioner and same being absent said proceedings are liable to be quashed.
3. Per contra, learned High Court Government Pleader appearing for State would contend that petitioner along with other accused persons had without authority of law, drawn self-cheques from the account of Panchayath Development and had withdrawn amounts from the account of the Panchayath Development and had utilized said amounts. Hence, there is a prima-facie against petitioner also as could be seen from the complaint averments as well as the charge sheet material. Hence, he prays for rejection of the petition.
4. Time and again, this Court has deprecated the use of printed formats for taking cognizance of the offence by use of a stereo type printed formats by the learned Magistrate. This Court in the case of VIJAYA BANK AND ANOTHER vs. STATE BY LABOUR ENFORCEMENT OFFICER, reported in ILR 2000 KAR 4773 had held that “the Magistrate having taken cognizance of the offence by mechanically signing a filled up form, it was held, that it is difficult to arrive at a conclusion that the process of taking cognizance has actually been complied with and such an act cannot be sustained”.
5. In M/S. PEPSI FOODS LTD. & ANOTHER V/S. SPECIAL JUDICIAL MAGISTRATE & OTHERS, reported in (1998) SCC 749, the Hon’ble Apex Court has held that “the exercise of power under Section 204 of Cr.P.C. to summoning an accused in a criminal case is a serious matter and that the process of criminal law cannot be set into motion in a mechanical manner. It has also been held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law governing issue”. It came to be held by the Hon’ble Apex Court as under:
“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
6. In similar circumstances, this Court in the case of YOGEESH DESAI AND ORS. VS. STATE OF KARNATAKA AND ORS. reported in ILR 2016 KAR 4820 has held “where there is no speaking order at the stage of application of the provision of Section 190 or 204 of Cr.P.C., there must be sufficient indication of application of mind by the Magistrate to the facts constituting commission of offence, so as to proceed against the offender/s, since summoning of the accused in a criminal case is a serious matter which may curtail the individual and as such while allowing a petition and remitting the matter back to the Magistrate, petition came to be allowed”.
7. Keeping these principles in mind, when facts on hand are been examined, it would disclose that learned Magistrate under the impugned order dated 21.01.2016 has taken cognizance of the offence alleged against petitioner and said order would disclose that the contents had been typed and the provisions of Indian Penal Code only have been written down in the hand writing of the learned Magistrate. In other words, the order does not disclose about the due application of mind has been there by the learned Magistrate.
8. However, this Court is also of the considered view that on account of advanced technology, use of computers in the Courts is the order of the day. Hence, if orders taking cognizance are passed in toto and said order disclosing that learned Magistrate has applied his mind, then in such circumstances accused would not be justified in contending that it is a proto-type order or there has been no application of mind or in other words, learned Magistrate did not take cognizance of the offence by writing down the order in his own handwriting.
9. However, in the instant case, the facts obtained would disclose that by the impugned order dated 21.01.2016, learned Magistrate had filled up the IPC provisions to take cognizance of the offence alleged against petitioner which does not remotely disclose that learned Magistrate had applied his mind while taking cognizance of the offence and there is no entry also to that said effect. This also fortified by proviso to Rule 1, Chapter-VII of The Karnataka Criminal Rules of Practice, 1968, which provides for orders being typed.
10. In that view of the matter, order taking cognizance in the instant case cannot be sustained and though this Court as already observed hereinabove has deprecated the practice of filling up of blanks, the same seems to have been going unnoticed by the learned Magistrates all over the State. In that view of the matter, impugned order has to be set aside by allowing this petition and remitting the matter back to the Magistrate for fresh consideration.
11. In so far as the second contention of the learned counsel for petitioner with regard to there being no mens-rea on the part of the petitioner as evident from the charge sheet or complaint averments is an issue, which can be examined by the learned Magistrate and no opinion is expressed in that regard.
12. Hence, the following:
ORDER 1. Criminal petition is hereby allowed.
2. Order dated 21.01.2016 passed by the Civil Judge and JMFC, Kushalnagar in C.C.No.56/2016, issuing summons to the petitioner is hereby quashed.
3. Matter is remitted back to the Magistrate for fresh consideration for passing orders afresh in accordance with law.
SD/- JUDGE KMV