IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5577 OF 2013 BETWEEN:
1. NARAYANA REDDY SON OF NARASA REDDY AGED ABOUT 66 YEARS 2. MUNISWAMY SON OF LATE NARASA REDDY AGED ABOUT 63 YEARS 3. PARANDAMA SON OF NARAYANA REDDY AGED ABOUT 29 YEARS 4. SOMASHEKARA SON OF MUNISWAMY AGED ABOUT 32 YEARS 5. VISHWANATH SON OF MUNISWAMY AGED ABOUT 26 YEARS 6. JAYAMMA WIFE OF NARAYANA REDDY AGED ABOUT 50 YEARS 7. SHAMALAMMA WIFE OF MUNISWAMY AGED ABOUT 36 YEARS ALL ARE RESIDING AT SHANKAMVARIPALLI VILLAGE, KASABA HOBLI BAGEPALLI TALUK CHIKKABALLAPURA DISTRICT – 561 207.
…PETITIONERS (BY SRI.MURTHY.K, ADV.,) AND:
1. THE STATE OF KARNATAKA BY BAGEPALLI POLICE CHIKKABALLAPUR DISTICT – 561 207.
2. SRI.KRISHNAPPA SON OF RAMAPPA AGED ABOUT 50 YEARS SHANKAMVARIPALLI VILLAGE, KASABA HOBLI BAGEPALLI TALUK CHIKKABALLAPURA DISTRICT – 561 207.
... RESPONDENTS (BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1 SRI.NAGARAJA N.NAIDU, ADV., FOR R2 - ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 23.08.2013 PASSED IN C.C.NO.123/11 PASSED BY THE CIVIL JUDGE AND JMFC, BAGEPALLI.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners have assailed the order dated 23.08.2013 passed by the Civil Judge and JMFC at Bagepalli in C.C.No.123/2011, whereby, the learned Magistrate has allowed the application filed by the prosecution under Section 323 of Cr.P.C. and has committed the matter to the Sessions Court for trial in respect of the offence punishable under Section 307 of IPC.
2. Heard learned counsel for the petitioners and learned Additional Special Public Prosecutor for respondent No.1 – State. Learned counsel for respondent No.2 is absent and has not addressed any arguments.
3. The undisputed facts are that, FIR was registered against the petitioners for the offences under Sections 143, 147, 148, 323, 324, 504, 448, 307 read with Section 149 of IPC. However, after investigation, charge under Section 307 of IPC was dropped and charge sheet was filed only for the offences punishable under Sections 143, 147, 148, 323, 324, 448, 504 and 506 read with Section 149 of IPC. Learned Magistrate took cognizance of the offences and during trial recorded the evidence of six witnesses as PWs-1 to 6. Since the evidence of these witnesses disclosed commission of the offence under Section 307 of IPC, the prosecution moved an application under Section 323 of Cr.P.C. The application was opposed by the petitioners. Considering the material on record, by the impugned order dated 23.08.2013, the learned Magistrate allowed the application and consequently, committed the matter to the trial Court under Section 323 of Cr.P.C.
4. Placing reliance on the decision of the Orissa High Court, learned counsel for the petitioners submits that once the learned Magistrate having taken cognizance of the offences, he had no authority to further take cognizance on the basis of the application filed by the A.P.P. in exercise of the powers under Section 323 of Cr.P.C.
5. I have gone through the said decision. In the said case, after the charge sheet was submitted for the offences under Sections 341 and 323 of the Penal Code read with Section 34 of IPC, learned Magistrate took cognizance for the said offences. Even after the order was passed, learned A.P.P. appearing on behalf of the State filed an application before the Court to take cognizance under Section 316 of IPC and learned Magistrate took cognizance of the offence under Section 316 of IPC. This order was assailed before the High Court contending that after taking cognizance on 03.10.1997, the learned Magistrate could not have taken cognizance again on the basis of the application filed by the A.P.P. and only recourse open to the prosecution was to take steps under Section 323 of Cr.P.C.
6. The High Court of Orissa relied on the decision of the Hon’ble Supreme Court in the case of RAJ KISHORE PRASAD v. STATE OF BIHAR reported in (1996) 11 OCR (SC) 139 : 1996 Cri.LJ 2523) and held that:
“If the learned Magistrate failed to take cognizance of that stage and took cognizance of offences in respect of which charge-sheet has been filed, he has no authority to take further cognizance on the basis of an application filed by the A.P.P. in exercise of powers under Section 323 of the Cr.P.C. as by that time enquiry was over and trial had not commenced. It was open for the learned Magistrate to take cognizance of any other offence at the time of trial and has no jurisdiction to take cognizance again in respect of any other offence after conclusion of inquiry and before commencement of trial.”
7. This decision does not advance the contention urged by the learned counsel for the petitioners. Undisputedly, in the instant case, after commencement of the trial, the prosecution examined six witnesses namely, P.W.s-1 to 6 and at that point, an application was moved by the A.P.P. under Section 323 of Cr.P.C.
8. Section 323 of Cr.P.C. deals with the procedure when, after commencement of inquiry or trial, Magistrate finds the case should be committed to the Sessions Court. Section 323 reads as under:-
“323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed . – If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall, commit it to that Court under the provisions hereinbefore contained [and thereupon the provisions of Chapter XVIII shall apply to the commitment so made].”
9. In the case on hand, the impugned order has been passed under Section 323 of Cr.P.C. i.e., after commencement of trial, based on the prima facie material produced by the prosecution making out an offence under Section 307 of IPC. The learned Magistrate was bound to commit the case to the Sessions Court as he had lost jurisdiction to try the offence under Section 307 of IPC. Therefore, there is absolutely no error or illegality in the impugned order warranting interference by this Court. Consequently, the petition is dismissed.
Sd/- JUDGE VMB