R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.172/2017 BETWEEN:
Nagaraja Rao C.H., Aged 49 years, Chartered Accountant, S/o. Sri. C.H. Rao, No.1247, 2nd Cross, Krishnamurthy Puram, Mysore -570 004. …Petitioner (By Sri. S.K. Acharya, Advocate) AND 1. S.K. Sheshachandrika, Aged about 74 years, R/at Kabini, Khadi Layout, No.18, 2nd Main, B.S.K. Main Road, Katriguppa, Bengaluru -560 085.
2. B. Gopalakrishna Upadhya, S/o. Srinivasa Upadhya, Aged about 60 years, R/at 2-3-10-B, Vyasa Kuteera, Behind Hotel Karavali, Bannanje Adi Udupi, Ambalapadi Post, Udupi -576 103.
3. Arun Kumar, S/o. Dheerendra Ayachith, #33, 12th Cross, 12th Main, Raghavendra Block, Srinagar, Bengaluru -560 050.
4. Anjan Aged about 34 years, #370, BEML Layout, Basaveshwara Nagar, Bengaluru -560 074.
5. Dr. Krishna, S/o. S.K. Sheshachandrika, Aged about 39 years, R/at. Kabini, Khadi Layout, No.18, 2nd Main, BSK Main Road, Katriguppa, Bengaluru -560 085.
6. M.s. Gangaprasad, S/o. Srinivasamurthy, Aged about 40 years, R/o. 320, 10th Road, Alakapuri Colony, Ramantpur, Hyderabad.
Now at House No. 11-13-544/2, Flat No.1, Yadhav Nagar Colony, SRK Puram, Hyderabad -500 035.
7) State of Karnataka, By Udupi Town Police Station, Udupi -576101, Represented by State Public Prosecutor, High Court of Karnataka Building, Bengaluru -560 001. …Respondents (By Smt. Rachana Bharadhwaj J.R., for Sri. Pramod N. Kathavi, Advocate for R-1, 2, 5 and 6; Sri. Venkateshwaran, Advocate for R3;
Vide order dated 19.07.2018 petitioner abated against – R4;
Sri. M. Divakar Maddur, HCGP for R7) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C. praying to set aside the impugned order dated 08.08.2016 passed in C.C. No.90/2014 on the file of the Additional Civil Judge and JMFC, Udupi in so far as not taking cognizance of the offence punishable under Sections 397, 364A and 307 of IPC against the accused.
This Criminal Revision Petition coming on for Admission this day, the Court made the following:
ORDER This revision petition has been filed by the petitioner/complainant challenging the order dated 08.08.2016 passed by Additional Civil Judge and JMFC, Udupi in C.C. No.90/2014.
2. I have heard the learned counsel Sri. S.K. Acharya for the petitioner/complainant and learned counsel Smt. Rachana Bharadhwaj R., for Pramod N. Kathavi for respondents No.1, 2, 5 and 6 and learned counsel Sri. S. Venkateshwaraiah for Sri. S.R. Muralidhar for respondent No.3.
3. Heard Sri. M. Divakar Maddur the learned High Court Government Pleader.
4. Though this case is listed for admission with the consent of the learned counsel appearing for both the parties, same is taken up for final disposal.
5. The factual matrix of the case are that petitioner/complainant has filed a private complaint and the Court below took cognizance of the same on 16.01.2014. Subsequently, the complainant filed a memo contending that the material produced in the complaint and the sworn statement of the complainant attracts offence punishable under Sections 397, 364A and 307 of IPC, but the Court has not taken the cognizance of the said offences prayed to, to take cognizance of the said offences.
6. The said memo has been objected by the accused by filing objections contending that already the cognizance has been taken by the Court and at this juncture taking the cognizance of the offences punishable under Sections 397, 364A and 307 of IPC is not maintainable. The Court below after hearing both the counsel dismissed the memo. Being aggrieved by the same the petitioner/complainant is before this Court.
7. It is the submission of the learned counsel for the petitioner/complainant that there is ample material to show that the accused/respondents have committed the offence punishable under Sections 120A, 420, 441, 442, 379, 506, 386, 405, 410, 425, 390, 108, 141 read with 34 and also under Sections 397, 364A and 307 of IPC. He further submitted that these offences are exclusively triable by the Courts of Sessions. The Court below without looking into the material placed on record, has committed an error in taking the cognizance only to some of the offences, excluding major offences. It is further submitted that in order to bring to the notice of the Court a memo has been filed and to take cognizance of the alleged offences, but Court below erroneously dismissed the memo. He further submitted that the offences clearly go to show that they are triable by the Court of Sessions. Even the documents produced along with the complaint clearly go to show that the accused persons were having intention to cause the death of the injured. Under such circumstances, the Court below ought to have taken the cognizance of the offence punishable under Section 307 of IPC. It is further submitted that on the basis of the material available on record the charge has to be framed. Without looking into the said facts, the memo has been dismissed. In order to substantiate his argument he relied upon the decision in the case of Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana and Another reported in 2016 SAR (Criminal) 444. He further submitted that if the said memo is not allowed and the complainant is not given a liberty to prove his case on those Sections, then he will be put to major hardship and injustice will be caused to the complainant. On these grounds he prayed to allow the petition.
8. Per contra, learned counsel appearing on behalf of the respondents/accused vehemently argued and submitted that the present revision petition is not maintainable, since no revision lies against the order passed by the trial Court. It is their further submission that already the Court below has taken the cognizance and subsequently once again it cannot revert back and go and take cognizance in the manner it is stated by the complainant. They further submitted that the complainant has come up with a memo when the case has been taken up for hearing before the charge. Taking into consideration the above said facts and circumstances, the trial Court has rightly come to the conclusion and has rightly dismissed the memo. There are no good grounds to interfere with the order of the trial Court. On these grounds they prayed to dismiss the petition.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records and the evidence produced in this behalf.
10. The first and foremost contention taken up by the learned counsel for the respondents is that the present revision petition is not maintainable and on that ground itself it is liable to be dismissed. It is well established proposition of law by the Hon’ble Apex Court ‘that in case of jurisdictional error or any illegality in the order, the Revisional Court can interfere with such orders and entertain the revision petition. As could be seen from the records though the trial Court has no power to pass such order it has passed the impugned order. Under such circumstances, this Court can exercise the power under Section 397 of Cr.P.C. As could be seen from Section 397 of Cr.P.C. this Court can exercise its power and call the records, set right the illegality if it is there exfacia on record. In that light suo-motto this Court under the revisional power can call the records and pass an appropriate order. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Southern Sales and Services and others Vs. Sauermilch Design and Handels GMBH reported in (2008) 14 SCC 457 and also the said decision has been referred in the case of Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197.
11. Keeping in view the above said ratio and facts and circumstances, the contention of the learned counsel for the respondents is that the present revision petition is not maintainable, is not having any force and the same is liable to be rejected.
12. The next question which has been raised in this revision petition is that though there is material to take cognizance for the offences punishable under Sections 397, 364A and 307 of IPC, the Court below has not taken the cognizance and even though the memo has been filed to take the cognizance, the said memo has been erroneously dismissed is correct or not?
13. Admittedly, the trial Court after considering the complaint and the sworn statement has taken the cognizance on 16.01.2014. The said order has not been challenged before any Court but subsequently a memo has been filed to include some more offences. However, accused challenged the said order of taking cognizance before this Court in Criminal Petition No.7376/2014. The Coordinate Bench of this Court by order dated 17.06.2019 has dismissed the petition as there is no merits in the case.
14. The word “Cognizance” indicates the point when a Magistrate takes judicial notice of an offence. Section 190 of Cr.P.C. enumerates about taking of the cognizance by the Court. For the purpose of brevity, I quote Section 190 of Cr.P.C. which reads as under:
“190. 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 own 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.”
15. On close reading of the above said Section it states “the various ways in which a Magistrate can take cognizance of an offence i.e., take notice of the allegation of commission of offence with a view to take some kind of action provided in the code to bring the offender to justice.” It is taken in three ways, (i) upon complaint (ii) upon police report (iii) upon other information or the Magistrate on his own knowledge. Taking cognizance has not been defined in Cr.P.C. Various decisions of this Court as well as the Hon’ble Apex Court have clarified, it is the application of mind for proceedings by the concerned Judge to the proceedings under Section 200 and 203 of Cr.P.C. which are said to be taking the cognizance. If the Judge applies his mind that he will take cognizance, the word ‘cognizance’ indicates that when a Magistrate first takes judicial notice of the offence.
16. Taking cognizance and initiation of proceedings are two different things. Initiation of proceedings is entirely different from taking cognizance. He takes the cognizance of the accused with reference to offence. This issue came before the Kerala High Court in the case of K. Venugopalan Vs State of Kerala reported in 2003 CRI.L.J. 1427 at paragraph No.8, it has been observed as under:
“8. The expression “cognizance of the offence” has not been defined in the Code and Section 190 of the Code talks of cognizance of offences by Magistrates. This expression, in its broad and literal sense, means taking notice of an offence and would include the intention of initiating judicial proceedings against the offender in respect of that offences or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes Judicial notice of an offence. Initiation of proceedings is entirely different from taking cognizance of an offence and taking cognizance of an offence is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. In Wharton’s Law Lexicon 14th Edn.
at page 209 “cognizance” is defined, which reads as follows:
“Cognizance (Judicial), knowledge upon which a judge is bound to act without having it proved in evidence: as the public statutes of the realm, the ancient history of the realm, the order and course of proceedings in Parliament, the privileges of the House of Commons, the existence of war with a foreign State, the Several seals of the Kind, the Supreme Court and its jurisdiction, and many other things. A Judge is not bound to take cognizance of current events, however notorious, nor of the law of other countries.”
What amounts to taking cognizance has been observed by the Hon’ble Apex Court in the case of R.R. Chari Vs. State of Uttar Pradesh reported in AIR 1951 SC 207 at paragraph No.9. It has been observed as under:
“9. After referring to the observations in Emperor v. Sourindra Mohan, 37 Cal. 412®6 I.C.S), it was stated by Das Gupta J. in Supdt. and Remembrancer of Legal Affairs, W.B. v. Alani Kumar, A.I.R.(37) 1950 Cal. 437, as follows:
“What is taking cognizance has not been defined in the Cri.P.C. and I have no desire to attempt to define it. It seems to me clear’ however that before it can be said that any Mag.has taken cognizance of any offence u/S.190(1)(a), Cri.P.C, he must not only have applied his mind to the contents of the petn.but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap.,-proceeding u/s.200 and thereafter sending it for inquiry and report u/s.202. When the Mag applies his mind not for the purpose of proceeding under the subsequent sections of this Chap, but for taking action of some other kind e.g. ordering investigation. . . u/S.158 (3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.”
it is further observed in the case of H.N. Rishbud & another Vs. State at Delhi reported in AIR 1955 SC 196 about taking cognizance for the second time Court is not barred from taking cognizance on the subsequent report. It is further observed that only in case of miscarriage of justice it can be set aside.
17. After consideration of above interpretation about taking cognizance of the case and the Court takes the cognizance of not offence but case consideration to what offence the charge has to be framed has to be looked in only at the time of framing of the charge, if prima facie case is established. The Court can frame the charge for the offences which are attracted under the said facts and circumstances. The cognizance of all the offences with regard to which the evidence has already been collected, can be included in that case and the case can be tried if no jurisdictional error is there. If the jurisdictional point comes into picture then under such circumstances, the Court can transfer or commit the case to the jurisdictional Court. In this behalf it is brought to my notice that so far the charge has not been framed and case is posted for hearing before the charge. At that time the trial Court can look into all the aspects whether the ingredients of provisions of Sections 397, 307 and 364A of IPC are there in the complaint or in the sworn statement. If it comes to the conclusion that ingredients of all the above offences were in existence already, then under such circumstances, it can commit the case by exercising the power under Section 323 of Cr.P.C. and there is no question of framing the charge by the same Court, if the said ingredients are not existing, then under such circumstances, it can proceed in accordance with law by framing the charge, with which it can try. This proposition of law has also been laid down by the Patna High Court in the case of Ramakant Singh and etc., Vs. State of Bihar and another reported in 2006 Cr.L.J 4752 at paragraph No.15 it has been observed as under:
“15. In the present case admittedly the F.I.R. of G.R.P.P.S. Case No. 225 of 2006 relates to same incident and investigation so far the petitioners are concerned is still going on. No final form under Section 173(2), Cr.P.C. has been submitted, there is no reason for institution of the second F.I.R. in the facts and circumstances of the case. State though admitted in the counter-affidavit that the present case is not a new case and it relates to the same incident in which already Railway P.S. Case No.29 of 1998 has been registered, but has tried to justify the institution of the second F.I.R. stating that the other facts were unearthed during investigation making out offence punishable under the Prevention of Corruption Act. The Court of Railway Magistrate is not competent to take cognizance for such offence or charge the accused for such offence or try them as such there was need for instituting second F.I.R. I do not find force in this submission. So far the offences under P.C.Act are concerned. It can be included in the same case, if evidence collected during investigation prima facie makes out a case for such offences. If the Magistrate before whom the case is presently pending has got no jurisdiction for issuance of warrant, cognizance and trial, the case can be transferred to the Court of competent jurisdiction. A prayer can be made in this regard in the pending cases for transferring the case to the Court of competent jurisdiction. All offence with regard to which evidence has already been collected can be included in that very case and warrant of arrest can be issued, cognizance can be taken and the accused persons can be tried by the Court of competent jurisdiction. Filing of second F.I.R. for this purpose is neither justified nor legal. This exercise on the part of the State must be checked and restrained.
18. Taking into consideration of the above said facts and circumstances, I feel that the order passed by the Court below by its order dated 08.08.2016 is erroneous and no such order could have been passed, dismissing the memo. Filing memo was not warranted and the Court ought not to have passed a separate order, that too when the matter was pending for consideration of hearing before charge. The observation that already cognizance has been taken to certain offences and there is no need to take cognizance to other offence is not correct. This aspect ought to have been considered at the time of framing of the charge and at the time of hearing before the charge that too when the matter was kept for the purpose of hearing about charge. Keeping in view the above observation, order dated 08.08.2016 passed by Additional Civil Judge and JMFC, Udupi is set aside and the trial Court is directed to consider if material is there, in that event it can proceed as observed in accordance with law. If the said offences are triable by the Court of Sessions then commit the said case to the jurisdictional Court.
With the above observations, petition is allowed and impugned order is set aside. The above observation will not come in the way of disposal of the case on merits.
As the main matter is disposed of, I.A. No.2/2017 does not survive for consideration. Hence, I.A. No. 2/2017 is disposed off.
Sd/- JUDGE BVK