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K.V. Subbiah Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 349 of 1967
Judge
Reported in(1968)2MysLJ604
ActsCode of Criminal Procedure (CrPC) , 1889 - Sections 156(3), 173, 200, 202, 202(1), 203, 251, 251-A, 251-A(2) and 252; Indian Penal Code (IPC), 1860 - Sections 420
AppellantK.V. Subbiah
RespondentState of Mysore and anr.
Excerpt:
.....for trial of accused challenged - provisions of section 251-a applicable when case instituted on police report - former magistrate having taken cognizance and having examined complaint on oath on 04.11.1965, report subsequently submitted by police after investigation cannot be one falling within ambit of section 156 (3) - such report will be report called for by magistrate under section 202 - cognizance of offence complained of already taken by magistrate on 04.11.1965 - in light of precedent when once cognizance had been taken by magistrate there was no scope for cognizance being taken afresh of same offence after receipt of police officer's report - subsequent report by police officer though purported to be charge-sheet, to be treated as merely consequence of action taken by..........section 251 of the cr.p.c. states that the magistrate shall--(a) in any case instituted in a police report, follow the procedure specified in section 251-a; and (b) in any other case follow the procedure specified in the other provisions of that chapter, (chapter xxi). as to whether the procedure to be adopted was the one set out in section 251-a, depended upon as to whether the case had been instituted on a police report. the view taken by the learned magistrate, is, that the case is one instituted on a police report. the relevant facts which influenced the learned magistrate, to take this view, briefly stated, are as follows:--the complaint petition had been presented before one of the predecessors of the magistrate that has passed the order now under revision. the predecessor,.....
Judgment:
ORDER

1. By his order dated 16-10-1967 made in Criminal case No. 6144 of 1966 on the file of his court, The Special First Class Magistrate, Kolar Gold Fields decided that the procedure which had to be adopted for the trial of the accused (the present petitioner), was that prescribed in Section 251-A of the Code of Criminal Procedure. It is the correctness of that order that has been challenged in this criminal revision petition which has been filed by the said accused.

2. I have heard Sri. A. C. Nanjappa, the learned counsel for the petitioner and Sri Rego, the learned counsel appearing for the State Public Prosecutor.

3. The alleged offence for which the accused was being tried before the learned Magistrate, was one punishable under Section 420 of the I.P.C. It was one in regard to which the procedure prescribed by the Code of Criminal Procedure in respect of the trial of Warrant cases had to be followed. Section 251 of the Cr.P.C. states that the Magistrate shall--(a) in any case instituted in a police report, follow the procedure specified in Section 251-A; and (b) in any other case follow the procedure specified in the other provisions of that Chapter, (Chapter XXI). As to whether the procedure to be adopted was the one set out in Section 251-A, depended upon as to whether the case had been instituted on a police report. The view taken by the learned Magistrate, is, that the case is one instituted on a police report. The relevant facts which influenced the learned Magistrate, to take this view, briefly stated, are as follows:--

The complaint petition had been presented before one of the predecessors of the magistrate that has passed the order now under revision. The predecessor, after receiving the said complaint, examined the complainant on oath and made an order to the effect that the facts of the complaint clearly showed that there is a dispute between the parties of a civil nature, and hence no action could be taken on the complaint and it was therefore, dismissed. That order was made on 4-11-1965. The complainant then preferred a revision to the Sessions Judge, Kolar. That Criminal Revision Petition (12 of 1965) was allowed by the Session Judge and the order of dismissal which had been made by the Magistrate was set aside. The case was remanded to the Magistrate for being disposed of in accordance with law. After the case has been so remanded by the Sessions judge, an application was made by the complainant, to the Magistrate, requesting that the case be referred to the police for investigation and report. In compliance with the request of the complainant, the Magistrate directed the police to make an investigation and to submit a report. In consequence of the investigation made by them, the police then submitted a charge sheet. It is on the basis of these facts, that the magistrate has taken the view that this is a case instituted on a police report.

4. The learned Magistrate has stated as follows in the course of his order:--

'The complainant has not been examined on oath under Section 200 of Cr.P.C. and therefore it goes without saying that no offence was taken cognizance of by predecessor before sending the complaint to the police under Section 156(3) Cr.P.C. As such the complaint was not sent to the police under Section 202 Cr.P.C. and it was sent only under Section 156(3) of Cr.P.C. Therefore the report submitted by the police is a report under Section 173 Cr.P.C., and it cannot be treated as the one filed under Section 202 Cr.P.C. As such the procedure that was adopted under Section 251 A of Cr.P.C. was perfectly alright.'

Obviously the learned Magistrate was referring to the order made by the immediate predecessor, directing the police to make an investigation and submit a report under Section 156(3) of the Cr.P.C. But, what he has forgotten is, that before his immediate predecessor directed the police as stated above, to make and investigation and submit s report, the previous Magistrate has already examined the complainant on 4-11-1965 and had proceeded to dismiss the complaint on the ground that the dispute was of a civil nature.

5. As contended by Sri A. C. Nanjappa, the learned counsel for the petitioner, there cannot be any doubt that on 4-11-1965 when the Magistrate had proceeded to examine the complainant and thereafter to dismiss the complaint itself, the Magistrate had taken cognizance of the offence complained of.

6. Section 202(1) of the Code of Criminal Procedure provides that a Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance may direct an enquiry or investigation to be made by a police officer. The proviso to that sub-section requires that (except where the complaint has been made by a Court) no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200. Now, Section 200 states that a Magistrate taking cognizance of an offence on compliant shall at once examine the complainant (and witnesses present, if any). The examination of the complainant contemplated by Section 200, is by a Magistrate taking cognizance of an offence on complaint. The effect of these provisions is, that if there is an examination of the complainant by the Magistrate taking cognizance and thereafter an enquiry or investigation is directed to be made by a police officer then, the report submitted by the Police Officer consequent on such enquiry or investigation, will be report which will fall under Section 202 and Section 203 of the Cr. P.C. But, if the report is called for by the Magistrate without his having cognizance of the offence complained of on examining the complainant on oath, then, the report submitted by the police consequent upon an enquiry directed by the Magistrate will be one which will fall within Section 156(3) of the Cr.P.C.

By reason of the former Magistrate having taken cognizance of the complaint and having examined the complainant on oath on 4-11-1965, the report subsequently submitted by the police after investigation cannot be one which would fall within the ambit of Section 156(3) of the Cr.P.C. It will be a report called for by the Magistrate under Section 202 of the Cr.P.C.

7. The above view of mine is fully supported by the decision of the Supreme Court reported in : 1964CriLJ468 , the Supreme Court has observed as follows:--

'It is well settled now that on a petition before him, a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.'

In the above decision, the Supreme Court has also pointed out what view has to be taken in respect of a report submitted by the Police consequent on an enquiry or investigation directed by the Magistrate after he has taken cognizance of an offence. This is what the Supreme Court has stated :--

(Para 10, page 1544).

'It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the Police under Section 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under Section 202 of the Code of Criminal Procedure and not under Section 156 (3) of the Code of Criminal Procedure.

* * * * ** * * * * (Para 11). The fact that the Sub Inspector of Police treated the copy of the petition of complaint as a First Information report and submitted 'charge sheet' against accused persons cannot make any difference. In the view we have taken of the order passed by the Magistrate on November, 22, 1956, the report made by the police officer though purporting to be a report under Section 173 of the Code of Criminal Procedure should be treated in law to be a report only under Section 202 of the Code of Criminal Procedure.'

The latter part of the above observations made by the Supreme Court, apply with equal force to the facts of the present case. As already stated, on 4-11-1965 itself, cognizance of the offence complained of had already been taken by the magistrate (who was one of the predecessors of the present Magistrate). As pointed out by the Supreme Court in para 13, at page 1545, of the decision referred to above, when once cognizance had been taken by the Magistrate, there was no scope for cognizance being taken afresh of the same offence, after the receipt of the Police Officer's report. Therefore the subsequent report by the police officer, though it is purported to be a charge sheet, should be treated as merely a consequence of the action taken by the Magistrate under Section 202 of the Cr.P.C.

8. In a decision (1966) 2 Mys LJ 74, it has been stated by this Court that where on a complaint, the magistrate takes cognizance of the offence and directs investigation by the police under Section 436(3) of the Cr.P.C., the proceeding is not converted into one instituted on a police charge sheet so as to entitle the Magistrate to proceed under Section 251-A(2) of the Cr.P.C. and that he must proceed under Section 252, as the case is instituted otherwise than on police report. To the same effect is another decision of this court, (1966) 2 Mys LJ 89.

9. From the above discussion it is clear that the view taken by the learned Magistrate that the procedure to be adopted in the trial of the case before him was that prescribed in Section 251-A of the Cr.P.C. is wrong. The provision which has to guide him in the matter, is really Section 252 of the Cr.P.C.

10. A reference may be necessary to an earlier decision of this Court, (1963) 2 Mys LJ 41 = (AIR 1964 Mys 129). In that decision, there is an observation to the effect that if as a result of an investigation by them the police submit a report, then, the complaint which was received as a private complaint, loses its original character and becomes a final report under section 173 of the Cr.P.C., and that if the Magistrate takes cognizance of the police report, he has to proceed under Section 251-A of the Cr.P.C. These observation were made prior to the enunciation of the law by the Supreme Court in : 1964CriLJ468 ; with great respect, it may be pointed out that to the extent to which the observations of this Court are not in consonance with the view taken by the Supreme Court, they cannot be viewed as stating the correct legal position.

11. In the result, this revision petition is allowed and the order under revision is set aside and the Magistrate is directed to follow the procedure as required under Section 252 of the Code of Criminal Procedure.

12. Petition allowed.


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