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Nagawwa Vs. Veeranna Shivalingappa Koujalagi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1975CriLJ1367
AppellantNagawwa
RespondentVeeranna Shivalingappa Koujalagi and ors.
Excerpt:
.....dismissing the suit. - 20. the case, therefore, stands remitted to the court below to proceed according to law, and to examine other witnesses, if there are any, himself under section 202. criminal procedure code as regards the politically powerful personalities, accused nos......his mind for the purpose of proceeding under section 200 and subsequent sections of ch. xvi of the code of criminal procedure or under section 204 of chapter xvii of the code that it can be positively stated that he had applied his mind and therefore had taken cognizance.10. on the above observations of the supreme court, referred to in the previous para, sri swami tried to derive support. sri motaiya, however, argued that the above observations only apply to the ultimate taking of cognizance beyond the vesting of any doubt and it cannot be invoked in a case of the present nature, where we have to deal with an earlier stage.11. as agreed on all sides, the lines of a statute, when clear and precise, are of paramount importance and no reading between them is permissible. section 200,.....
Judgment:
ORDER

D. Noronha, J.

1. For the limited purpose of this Criminal Revision Petition, which can be dubbed as a storm in a tea-cup, only a few particulars need be stated to resolve a technical legal point.

2. One Nagappa was way-laid and mercilessly assaulted on 19-7-1973 at about sun-set time by a group of persons in Benachinamaradi village, Gokak Taluk. The reason is attributed to personal feuds and political vendetta. The police patil recorded the dying declaration of Nagappa. A few hours after the assault on him, Nagappa succumbed to his injuries in the car which was brought to take him to the hospital. The police of Gokak Police Station, after investigation, laid a charge-sheet against 8 persons as the accused, before the Judicial Magistrate First Class, Gokak. alleging overt acts leading to the murder of Nagappa. The learned Magistrate committed the case against those 8 accused to the Sessions Court, Belgaum. That Sessions Case No. 30 of 1974 is pending trial before the I Additional District and Sessions Judge, Belgaum, and has for the nonce been stayed by order of this Court, dated 29-11-1974.

3. Smt. Nagawwa, mother of deceased Nagappa, filed a private complaint under Section 200, Criminal Procedure Code (1898) before the same Magistrate arraying 10 persons as the accused, namely two more than in the Sessions Case No. 30 Of 1974. These two additional persons are accused No. 9, who is a State Minister and accused No. 10, a sitting Member of Parliament. It is alleged against them that they being present at the scene during the fatal assault On Nagappa, abetted by instigation the committing of the offence, hence attracting Section 114, Indian Penal Code.

4. The concluding portion (Paragraph 8) of the order, dated 3-12-1973. of the Magistrate, is-

In the light of discussion made above, I direct the Superintendent of Police, Belgaum, to inquire and report about the truth or falsehood of the complaint as against accused No. 9 and accused No. 10 only under Section 202. Criminal Procedure Code in the light of the observations made above, within six weeks from the date of receipt of the direction.

It is the above portion of the order that is assailed by the complainant in this Criminal Revision Petition filed under Sections 435 and 439 read with Section 561-A of the Criminal Procedure Code (1898) The relief claimed is-Wherefore, the petitioner prays that this Hon'ble Court may be pleased to call for the records, to set aside the said order of the Court below and to direct the issue of the process to the respondents 1 and 2 in the said case and to proceed against them according to law to meet the ends of justice.

Respondents 1 and 2 here are accused Nos. 9 and 10 in the complaint, respondent No. 3 is the State of Karnakata.

5. Sri C. B, Motaiya, Sri K. A. Swami, and the State Public Prosecutor (learned Advocates), appeared for the petitioner (complainant), respondents Nos. 1 and 2 (accused Nos. 9 and 10), and the State, respectively. The State supported the stand taken by respondents 1 and 2, According to all the three learned Advocates, the sole and moot point which has to be determined is - Whether the learned Magistrate had taken cognizance of the case under Section 200, Criminal Procedure Code, or not, and at what stage ?

6. The above point was argued vehemently, and at quite some length. All the three learned Counsel were agreed that in the above context, the Order sheet of the Court of the Magistrate looms large. It is therefore necessary to set out the Order Sheet verbatim and in extenso. It is at below:

P.C. No. 55 of 1973.

IN THE COURT OF JUDICIAL

MAGISTRATE,

F.C., Gokak at Gokak

CRIMINAL CASE NO. of 1973.

Nagawwa, w/o Basappa Latti of Benachinamaradi v. Nagappa Basappa Giddanavar of Benachinamaradi and 9 Ors. Accused, 4-10-1973.

Offences under Sections 143, 147. 149, 341, 302, 114 read with 149, Indian Penal Code.

Before Shri A. Sreenivasa Murthy, B. A., B. L.Judicial Magistrate. F. C., Gokak.

Complaint is presented by the complainant through Shri B. R. Kopp. Advocate, at 1.30 p.m.

Vakalat of Shri B. R. Kopp, Advocate for the complainant filed.

Register it in P. C. register and put up for verified statement of the complainant.

The sworn statement (verified statement) of the complainant is recorded.

The complainant alleges offences under Sections 143. 147, 148 341, 302, 114 read with Section 149, Indian Penal Code against A-1 to A-10. It is seen in para. 11 of the. complaint that the incident has resulted in Cr. No. 72/73 of the Gokak P. S., and that it is only against A-1 to A-8. It is alleged in para. 3 of the complaint that the deceased mentioned the names of A-1 to A-10 before the P. P. P. P. has recorded the dying declaration of the deceased. It is alleged in para 4 that the deceased mentioned the names of A-1 to A-10 even before the police, who arrived thereafter. It is alleged in para 10 that the complainant learnt that the P. P. and the police have left out A-9 and A-10 though the complainant told about them also before the police, and though the deceased said so before the P. P. when the P. P. recorded the dying declaration. It is alleged in the said para that the complainant has sent up her representations to the Chief Minister and the Prime Minister and others, taut to no avail. It is alleged in para. 12 of the complaint that A-9 and A-10 are influential persons, that A-9 is Minister, that A-10 is a Parliament Member, that therefore the police did not take action against them, and that the police of the Mysore State will not take action against them. Therefore, the complainant prays that the Court should not send her complaint for enquiry or investigation by the Police, as she will not get justice at their hands, and that the Court should enquire into the matter.

Cr. No. 72/73 is pending enquiry before this Court, it is against A-1 to A-8 only.

The above allegations are spoken to by the complainant in her sworn statement before Court.

For the above reasons, I am of the opinion that process to the accused should be postponed, and the matter should be enquired into by the Court : the other witnesses of the complainant are to be examined to determine whether cognizance should be taken or not.

Complainant is directed to keep her witnesses present on the next date.

Call on 8-10-1973 for examination of the witnesses of the complainant.

Sd/-

A. Sreenivasa Murthy,

4/10/73.

8-10-1973.

Four witnesses examined today in Open Court. Call on 9-10-1973.

Sd/-

8-10-73.

9-10-1973

One more witness Mallappa is examined.

Call on 10-10-1973.

Sd/-

9-10-73.

10-10-1973.

Sri B. R. Kopp for the complainant present. I have examined six witnesses in all, including the complainant.

I find that there are three sets of witnesses. The first set is the eye-witnesses. They are the complainant and Basavanthappa Basappa Latti. The second set is the witnesses or attestors to the dying declaration. They are Siddappa Bhuthappagol and Chandrappa Sangannavar. The third set is the witnesses who allege that they were present at the time the dying declaration was recorded by the Police Patil. They are Nagappa Harijan and Mallappa Gidnavar.

In my opinion, the above sets of witnesses have placed sufficient material on record to determine whether the Court should proceed further or not. Hence, I do not propose to examine any more witnesses,

Sri B. R. Kopp for the complainant submits that he will address arguments on the available material on record. Call on 12-10-1973

Sd/-

10-10-73.

12-10-1973.

Sri B. R. Kopp for the complainant present. Heard arguments. Orders by 16-10-1973.

Sd/-

12-10-73.

16-10-1973.

Called Out, Sri B. R. Kopp, advocate for the complainant present. The Presiding Officer is under orders of transfer. Hence case is adjourned to 30-10-1973 for orders

Sd/-

I/C. J. M. F. C.

30-10-1973.

Called out. Sri B. R. Kopp for complainant is present. The case in which police have placed charge-sheet is adjourned to 12-11-1973. Hence call on 12-11-1973

Sd/-

30-10-73.

12-11-1973.

Complainant is absent when called. Sri B. R. Kopp present. Sri B. R. Kopp submits that the complainant has gone to hospital just now. Sri B. R. Kopp submits that he may be heard as this Court has not heard the arguments after the transfer of my Predecessor-in-office. Time granted, Call On 26-11-1973.

Sd/-

J. M. F. C.

26-11-1973.

Complainant by Sri B. R. Kopp. Present, Sri R. R. Talacherkar files cower for the complainant.

Heard Sri R. R. Talcherkar for the complainant. For consideration of the complaint and for further proceedings call on 3-12-1973.

Sd/-

J. M. F. C.

3-12-1973.

Complainant is present. By Sri B. R. Kopp present. Order pronounced in Open Court directing enquiry and report of the complaint as against A-9 and A-10 only under Section 202. Criminal Procedure Code by S. P., Belgaum, within 6 weeks from the date of receipt of direction from the Court.

Call 10-1-1974

Sd/-

J. M. F. C.

3-12-73.

7. In several Judgments of the Supreme Court placed before me, a passage from AIR 1950 Cal 437 : ((1951) 52 Cri LJ 806), (Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji) has been quoted, which is as below:

What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190 (1) (a). Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

8. Towards the end of the judgment of the Supreme Court in : 1959CriLJ1368 (Narayanadas Bhagwandas Madhavdas v. State of West Bengal), we find the following passage:

As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence.

Pausing here for a moment, it may be observed, as pointed out by Sri Motaiya, that the above circumstances are not present here.

9. The Supreme Court proceeds on to say-

Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Ch. XVI Of the Code of Criminal Procedure or under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.

10. On the above observations of the Supreme Court, referred to in the previous para, Sri Swami tried to derive support. Sri Motaiya, however, argued that the above observations only apply to the ultimate taking of cognizance beyond the vesting of any doubt and it cannot be invoked in a case of the present nature, where we have to deal with an earlier stage.

11. As agreed on all sides, the lines of a statute, when clear and precise, are of paramount importance and no reading between them is permissible. Section 200, Criminal Procedure Code reads-

A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :

On a plain reading of the above provision, it perforce follows that taking cognizance of the offence or offences on complaint is a condition precedent to examining at once the complainant and the witnesses, if any, present on that day. Hence we can take it that on 4-10-1973 no witness for the complainant was present. The Order Sheet is silent about it. Towards the end of it of that day, the endorsement is that the complainant is directed to keep her witnesses present on the next date, and call the case on 8-10-1973 for examination of the witnesses of the complainant.

12. While Sri Swamy places dependence on the entry in the Order Sheet of date 4-10-1973 viz., 'To determine whether cognizance should be taken or not', Sri Motaiya with equal vehemence, and I must say justifiably, relies upon the entry of the same date that the matter should be enquired into by the Court The word 'enquire' is absent in Section 200, Criminal Procedure Code but is there in Section 202, Criminal Procedure Code.

13. The complainant's substance of the examination was reduced to writing on 4-10-1973 itself, and this would mean on a plain reading of Section 200, Criminal Procedure Code, as set out already, was after the Magistrate took cognizance of the offences. The Supreme Court has made the above position crystal clear in a later case reported in AIR 1961 SC 986 : (1961) 2 Cri LJ 39 (Gopal Das Sindhi v. State of Assam), which is the ruling most apposite to the circumstances of the instant case. The relevant portion at para. 7 of the above judgment reads-.. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath hand the witnesses present at the time of the filing of the complaint ....

(The underlining for emphasis is mine).

14. Sri Motaiya represented, and I feel rightly, that the sworn statement of the complainant (petitioner) could not, as per Section 200, Criminal Procedure Code be recorded unless the condition precedent was fulfilled, i.e., cognizance being taken, and that 5 witnesses being examined for the complainant on subsequent days is of no materiality. Chapter XVI, Criminal Procedure Code contains only four sections namely, 200 to 203. We are not concerned with Section 201 here. The Chapter that follows immediately is Chapter XVII, which contains only two sections. What is relevant at this juncture is either Section 203 or Section 204. As represented by Sri Motaiya. after taking cognizance of an offence on complaint, the courses open to the Magistrate are, at once, to examine the complainant and the witnesses present, even if the words 'at once' are given a liberal interpretation, and then, if need be, if the Court entertains any doubt on certain matters about the involvement of some of the alleged accused, to call for a report from a police officer, and that the Magistrate is prohibited from directly having recourse to Section 202, Criminal Procedure Code abdicating the functions which he has already assumed, or even a portion thereof, to a police officer, however highly he may be placed, to make an enquiry or an investigation as is envisaged under Section 202. The above position is amply made evident in a Division Bench ruling of this Court in (1973) 2 Mys LJ 214 (State of Mysore v. B. M. Burlij. The observations found at para. 6 of the above decision are:

It is clear from the wordings of Section 202 that a Magistrate, if he thinks fit, for reasons to be recorded in writing can postpone the issue of process and then either:

(i) inquire into the case himself; or

(ii) call for a report from a subordinate Magistrate : or

(iii) call for a report from a police officer; or

(iv) call for a report from such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint.

It is open to the Magistrate to follow any of these four alternatives laid down by Section 202, but this section does not authorised the Magistrate to make use of all these alternatives.

15. The above ruling approved a Single Bench decision of this Court in Sabawa v. Gopalappa, in Cri. Revn. Petn. No. 622 of 1970, rendered on 7-4-1971 (Karnataka). Sri Swami was at considerable pains to distinguish the above two rulings, stating that the facts and circumstances were different. As pointed out by Sri Motaiya, it appears to me that the distinctions are without a difference. No two cases can be identical on all fours. What has to be borne in mind are the essential principles laid down and culled out from them.

16. The learned State Public Prosecutor drew my attention to one sentence at the end of paragraph 7 in Burli's case (19731 2 Mys LJ 214 viz., it is open to the Court after taking into account the complaint and the sworn statement of the complainant and witnesses, if any, produced by him at the time of taking cognizance of the complaint, and the police report, to decide whether there was sufficient ground for proceeding with the case and issuing process against the accused. He stressed the expression 'and the police report'. That alone cannot be read, torn out of the context, because the facts and circumstances in the decision referred to above were a bit different.

17. What follows on the above discussion is that we have passed the stage of Section 200, Criminal Procedure Code where respondents 9 and 10 have no say in the matter. Under Section 202, Criminal Procedure Code, the Magistrate having commenced the enquiry himself is debarred from referring a portion of it to an outside agency, in a divided bent of mind, as a half-way and hybrid measure. Within the sacred precincts of the Court Hall, politics and influence have no entry. The Magistrate himself has expressed this in no uncertain terms, and he has perforce to follow in practice what he has preached, without fear or favour. Justice, within the bounds of law, has got not only to be done but also appear to be done.

18. Let me remark that only one gate at this stage is closed. The rest are left wide open.

19. In the Order Sheet dated 10-10-1973 of the Court below, we find the following in the penultimate para:

In my opinion, the above sets of witnesses have placed sufficient material on record to determine whether the Court should proceed further or not. Hence. I do not propose to examine any more witnesses.

This Order made 'suo motu' is, to say the least, wholly unwarranted.

20. The case, therefore, stands remitted to the Court below to proceed according to law, and to examine other witnesses, if there are any, himself under Section 202. Criminal Procedure Code as regards the politically powerful personalities, accused Nos. 9 and 10 (respondents Nos. 1 and 2 here), and then deal with the matter either under Section 203 or under Section 204, Criminal Procedure Cote

21. The revision petition is allowed, setting aside the impugned portion of the Order of the court below, and the case is remanded to it to proceed in the light of the observations made above.


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