IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No. 3639 OF 2015 BETWEEN:
Sri Anandakumar Sub Inspector of Police, Presently working at Belur Town Police Station, Belur Taluk Hassan District Pin Code 573 121 …PETITIONER (By Sri Sharath S Gowda, Advocate) AND:
1. State by Somwarpet Police Station, Pincode 571 236 2. Smt. Veena, W/o Late Venkatesh, Aged about 35 years Besur Village & Post, Kodlipet Hobli, Somwarpet Taluk, Pincode 571 231 ….RESPONDENTS (By Sri Vijayakumar S Majage, Addl.S.P.P. for respt.No.1) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE PRIVATE COMPLAINT NO.292/2014 FILED IN THE COURT OF PRL. C.J. AND J.M.F.C., SOMWARPET AGAINST THE PETITIONER VIDE ANNEXURE-A AND CONSEQUENTLY ALSO TO QUASH THE ORDER DATED 12.1.2015 PASSED BY THE PRL. J.M.F.C., SOMWARPET IN TAKING COGNIZANCE FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448, 504,354, 326, 464 AND 201 OF IPC, ; QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.113/2015 PENDING ON THE FILE OF PRL. C.J. AND J.M.F.C., SOMWARPET VIDE ANNEXURE-B.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned Addl.
S.P.P. for respondent No.1. Respondent no.2 is duly served and unrepresented.
2. On perusal of the records, I find that the impugned order suffers from basic infirmities. Firstly, learned Magistrate is seen to have proceeded to record sworn statement of the complainant without taking cognizance of the offence, contrary to the provisions of Sections 190 and 200 of Cr.P.C. The order sheet reveals that a private complaint was submitted before the learned Magistrate, on which date, learned Magistrate passed the following order:
“19-08-2014 Complainant present. She presented complaint against the Accused for the offence punishable under sections 448, 504, 354, 326, 464, 201 of IPC is registered as P.C. and put up record for S/St of Complainant by 19.8.2014 Sd/-xx, 30.07.14 JMFC., Somwarpet 19-08-14 Complt. By SSM For S/St. Complainant present, S/s recorded as PW1 Ex.P1 to P18 were marked.
For F/S/S of complainant Prays time. Call on 17.09.2014.
Sd/- 19.8.14.”
The above order indicates that, prior to recording of the sworn statement, learned Magistrate had not taken cognizance of the above offence. Section 200 of Cr.P.C. in unambiguous terms requires the Magistrate to record the sworn statement only upon taking cognizance of the alleged offence. Since learned Magistrate failed to follow the procedure as contemplated under the Act, impugned order and consequent proceedings conducted by the learned Magistrate cannot be sustained.
3. The other illegality noted in the impugned order is that allegations made in the complaint go to show that petitioner herein was serving as Sub Inspector of Police of Somwarpet Police Station at the relevant time. According to the complainant, on 09.12.2013 at 11.50 p.m. one Prabha and her followers illegally trespassed into complainant’s grand father’s land and tried to construct a shed and in this regard, she informed the situation to the petitioner through mobile, but petitioner failed to take action.
4. It is further alleged that on 10.12.2013 at 2 a.m., petitioner/accused suddenly trespassed into the house of the complainant, abused her in filthy language, assaulted her with lati, forcibly took her into the Jeep and also assaulted her with a torch and kicked her stomach. The records produced before this Court indicate that, in respect of the above incident, a complaint was lodged by respondent no.2 on 10.12.2013 at 3 a.m., which goes to show that in respect of both occurrences a single complaint was filed. In the said circumstances, it is incumbent upon the learned Magistrate to find out as to whether the alleged acts were committed by the petitioner while in discharge of his official duty. The impugned order reveals that the learned Magistrate has deferred consideration of the said issue, which undoubtedly has bearing on the very jurisdiction of the learned Magistrate to proceed in the matter.
4. Having regard to above circumstances, it was incumbent upon the learned Magistrate to consider the requirement of Section 197 of Cr.P.C. before proceeding in the matter. Since, learned Magistrate has proceeded in the matter without taking cognizance of the alleged offences and without considering the requirement of sanction under Section 197 of Cr.P.C., on both these grounds, impugned order is liable to be set aside.
Accordingly, petition is allowed. Order dated 12.01.2015 in C.C.No.113/2015 (PC No.292/2014) pending on the file of Prl. Civil Judge & JMFC., Somwarpet is quashed. The matter is remitted to the learned Magistrate to reconsider the same from the stage of receiving the complaint.
Respondent No.2/complainant is directed to appear before the learned Magistrate on 03.09.2019.
Sd/- JUDGE psg*