IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.2308 OF 2019 C/W CRIMINAL PETITION No.2451 OF 2019 IN CRL.P. No.2308 OF 2019 BETWEEN:
REV. DR. ALOYSIUS PAUL D’SOUZA AGED ABOUT 77 YEARS EX. BISHOP OF MANGALORE RESIDING AT JEPPU SEMINARY JEPPU, MANGALURU-575 002 … PETITIONER (BY SHRI. ASHOK HARANAHALLI, SR. COUNSEL FOR SHRI. CYRIL PRASAD PAIS, ADVOCATE) AND:
ROBERT ROSARIO S/O S.H. ROSARIO AGED ABOUT 51 YEARS RESIDING AT HILDA COTTAGE AIKALA VILLAGE AND POST MANGALORE TALUK-574 141 ... RESPONDENT (BY SHRI. ROBERT ROSARIO, PARTY-IN-PERSON) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 26.02.2019 PASSED BY THE J.M.F.C.-II COURT, D.K., MANGALURU IN C.C.NO.1254/2019 ARISING OUT OF PRIVATE COMPLAINT NO.75/2017 AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1254/2019 ARISING OUT OF THE PRIVATE COMPLAINT NO.75/2017 IN J.M.F.C.-II COURT, D.K., MANGALURU.
IN CRL.P. No.2451 OF 2019 BETWEEN:
REV. PADRE DENIS MORAS PRABHU AGED ABOUT 78 YEARS EX.VICAR, GENERAL OF MANGLORE DIOCESE PRESENTLY RESIDING AT GLADSOM, MONKEYSTAND MANGALORE-1 … PETITIONER (BY SHRI. ASHOK HARANAHALLI, SR. COUNSEL FOR SHRI. CYRIL PRASAD PAIS, ADVOCATE) AND:
MR. ROBERT ROSARIO S/O S.H. ROSARIO AGED ABOUT 51 YEARS RESIDING AT HILDA COTTAGE AIKALA VILLAGE AND POST MANGALORE TALUK-574 141 ... RESPONDENT (BY SHRI. ROBERT ROSARIO, PARTY-IN-PERSON) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 26.02.2019 PASSED BY THE J.M.F.C.-II COURT, D.K., MANGALURU IN C.C.NO.1254/2019 ARISING OUT OF PRIVATE COMPLAINT NO.75/2017 AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS OF PETITIONER (ACCUSED NO.) FOR THE ALLEGED OFFENCES P/U/S 120-B, 403, 406, 413, 414, 417, 420 468 AND 477-A OF IPC AND ACQUIT THE PETITIONER HEREIN OF THE SAID OFFENCES.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER These two petitions have been presented by accused Nos.2 and 7 respectively challenging the proceedings before the learned JMFC (II Court), Mangaluru, in PCR No.75/2017 filed by complainant-respondent.
2. Shri Ashok Haranahalli, learned Senior Advocate urged a solitary contention that the learned Magistrate has recorded in the impugned order that it was not a fit case to exercise power under Section 156(3) of Cr.P.C and passed an order on 02.05.2017 directing the complainant and witnesses to be examined on oath. Thereafter, sworn statements have been recorded on 11.05.2017.
3. Shri Haranahalli, pointed out that in paragraph No.3 of the order dated 16.07.2018, learned Magistrate has recorded that cognizance of offences was not taken. Further, on 26.02.2019, learned Magistrate has issued process against the accused. He argued that a procedural irregularity has taken place inasmuch as learned Magistrate has proceeded further without taking cognizance of offences.
4. Shri Robert Rosario, respondent/party-in-person submitted that though it is not recorded by the learned Magistrate that cognizance has not been taken, the same does not vitiate the proceedings.
5. It is settled that when a complaint under Section 200 of Cr.P.C., is presented before the learned Magistrate, he is required to peruse the papers and take cognizance of offence if any made out and direct registration of criminal case. Learned Magistrate may also refer the case for investigation under Section 156(3) of Cr.P.C. In the instant case, the learned Magistrate has recorded that this is not a fit case to exercise power under section 156(3) of Cr.P.C. In such circumstances, he ought to have followed the procedure laid down in the Code of Criminal procedure, 1973, by taking cognizance of offences and then proceeded to record the sworn statements of the complainant and witnesses.
6. Shri Haranahalli, is right in his submission that the learned Magistrate, after recording sworn statements of the complainant and witnesses, has separately recorded that cognizance of offences was not taken. Therefore, the irregularity in the procedure has vitiated the proceedings. Resultantly, these petitions merit consideration. Hence the following;
ORDER (i) Petitions are allowed;
(ii) Order dated 02.05.2017 and all subsequent orders in PCR No.75/2017 passed by JMFC (II Court), Mangaluru, are set-aside; and (iii) The matter is remitted to the learned Magistrate to reconsider the same in accordance with law.
No costs.
Sd/- JUDGE AV