IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.9563/2016 BETWEEN:
SRI SHIVASHARANA SHETTY MANAGING DIRECTOR, NAMMA T.V. (DOORDARSHANA) SRI.LAKSHMI GANESH KULAI-575011 MANGALURU TALUK (BY SRI ARUNA SHYAM M., ADVOCATE ) AND:
SMT. AMBIKA G. NAIK, WIFE OF SRI. GANESH S. NAIK, AGED ABOUT 43 YEARS, 4/173A, 7TH CROSS, LAKSHMENDRANAGAR, SHIVALLI VILLAGE, KUNJIBETTU POST, MANGALORE-575001.
(BY SRI CHANDRASHEKAR, ADVOCATE ) ... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 22.06.2016 AND ENTIRE PROCEEDINGS IN PCR No.367/2016 AND C.C.No.1820/2016 ON THE FILE OF II ADDITIONAL PRINCIPAL JUDGE AND JMFC, UDUPI AND ALL FURTHER PROCEEDINGS PURSUANT THERETO WHICH ARE PRODUCED AT DOCUMENT Nos.1 AND 2 RESPECTIVELY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought to quash P.C.R.No.267/2016 and C.C.No.1820/2016 pending on the file of the II Additional Principal Judge and Judicial Magistrate First Class, Udupi.
2. Learned Counsel appearing for the petitioner has raised two fold contentions. Firstly, he contends that the learned Magistrate has committed a grave error in accepting the sworn statement of the respondent and directing registration of the case without even taking cognizance of the offences. Secondly, the publication made by the petitioner is based on truth and therefore, the petitioner has not committed any offence entailing his prosecution.
3. Learned Counsel for the respondent submits that the petition is premature and the allegations made in the complaint make out a prima facie offence and therefore there is no ground to quash the proceedings.
4. Charge sheet has been laid against the petitioner herein in Crime No. 232/2015 for the offences punishable under Sections 406, 420, 387, 389, 201, 120B r/w 34 of the Indian Penal Code.
5. In so far as the first contention raised by the learned Counsel for the petitioner is concerned, on going through the order sheet maintained by the learned Magistrate, it is noticed that the aforesaid private complaint was filed by the respondent herein on 29.4.2016. The same was put up for recording sworn statement on 29.4.2016. The learned Magistrate after receiving the affidavit in lieu of sworn statement on 22.6.2016, directed the office to register a case and to put up the file. The order reads as follows:
“Complainant is present. Filed an Affidavit in lieu of Sworn Statement recorded it is to be believed that there is material available to register Criminal case against the accused. Hence, office is directed to register CC and put up file. Call on 11/8.”
There is nothing in the entire order sheet to indicate that the learned Magistrate has taken cognizance of the offence so as to proceed against the petitioner.
6. The order dated 11.8.2016 reads ‘issue summons to accused No.2’ . From the above order it reveals that the learned Magistrate has proceeded with the matter without taking cognizance of the offence. In view of Section 200 Cr.P.C., a Magistrate derives jurisdiction to examine the complainant upon oath only after taking cognizance of the offence alleged in the complaint. This basic infirmity has vitiated the entire proceedings. In the wake of this order, there is no other alternative than to quash the entire proceedings and remit the matter to the learned Magistrate to proceed in the matter in accordance with law from the stage of taking cognizance.
7. In so far as the second contention urged by the learned Counsel for the petitioner, that the contents of the publication are based on the charge sheet filed against the petitioner and the husband of the respondent in Crime No.232/2015, the same is a matter of defense which could be raised and canvassed only by way of defense at the stage of trial and cannot be considered as a ground to quash the proceedings. Moreover, the proceedings in Crime No.232/2015 being sub judice, there is absolutely no justification whatsoever for the petitioner to telecast the proceedings in Crime No. 232/2015. Therefore, this contention also is rejected.
8. In the light of the above discussion, petition is allowed. The matter is remitted to the learned Magistrate to proceed in the matter from the stage of filing of private complaint and proceed in accordance with law.
9. Learned Magistrate shall apply his mind to the allegations made in the private complaint and shall proceed in the matter in accordance with law.
Sd/-
JUDGE Nsu/-