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Chamma Vs. Laxmichand and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 441 of 1969
Judge
Reported inAIR1970Mys316; 1970CriLJ1588
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 156, 156(3), 190, 190(1), 192, 200 and 202; Indian Penal Code (IPC), 1860 - Sections 488
AppellantChamma
RespondentLaxmichand and anr.
Appellant AdvocateVasudha Ramachandran, Adv.;E. Kanakasabhapathy and ;A.K. Laxmeshwar, Advs.
Respondent AdvocatePublic Prosecutor
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. sections 386 & 378: [v. jagannathan, j] appeal against acquittal - appellate court has got power to re-appreciate and reweigh evidence and come to its own conclusion. indian evidence act,1872[c.a.no.1/1872]-- section 3: [v. jagannathan, j] appreciation of evidence - hostile witness held, his evidence cannot be ignored in totality. where the hostile witness is not supporting prosecution case in certain minor aspects which has no bearing on prosecution case, said portion of evidence can be rejected. part of evidence which supports prosecution case will have to be accepted. - 202 (1). any magistrate, on receipt of a complaint of an offence of which he is .which has been transferred to him under section 192, may, if he thinks fit,..........of the record, i think, there appears to be no force in the first contention.4. section 156 of the code of criminal procedure provides:--'156 (1) any officer in charge of a police-station may without the order of a magistrate investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of chapter xv relating to the place of inquiry or trial. (2) no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) any magistrate empowered under section 190 may order such an investigation as above mentioned.' section 200 of the code of.....
Judgment:
ORDER

Ahmed Ali Khan, J.

1. This revision petition is directed against the order of the City Magistrate, Bangalore, passed on 6-11-1969 in C. C. No. III of 1969 on the file of his Court, dismissing the complaint filed by the petitioner. The operative portion of the order is as follows:--

'On a careful consideration of these fads, I do not find sufficient grounds to proceed with the case and hence I refuse to take cognizance of the alleged offence.'

The complaint was for an offence of house trespass punishable under Section 488, Indian Penal Code. The learned Magistrate dismissed the complaint by his order referred to above.

2. Two contentions were advanced before me by the learned counsel for the petitioner. The first contention was that the Magistrate ought to have examined the complainant on oath after the complaint was filed and that the Magistrate has erred in not examining the complainant on oath. It was submitted that the provision of Section 200, Criminal Procedure Code, is mandatory and Omission to examine the complainant on Oath is an illegality and the order of the Magistrate is liable to be set aside on that ground.

3. The second contention was that the Magistrate has erred in dismissing a private complaint without giving the complainant an opportunity to prove her case in spite of her counsel submitting that the petitioner had evidence both oral and documentary, to support her case. After a perusal of the record, I think, there appears to be no force in the first contention.

4. Section 156 of the Code of Criminal Procedure provides:--

'156 (1) Any Officer in charge of a police-station may without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of a police Officer in any such case shall at any stage be called in question on the Ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.'

Section 200 of the Code of Criminal Procedure lays down:--

'200. 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:

Provided as follows:--

(a) When the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192;

(aa) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties:

(b) where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing, need not be reduced to writing; but the Magistrate may, if he thinks fit, before the matter of the complaint is brought before him, require it to be reduced to writing;

(c) when the case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is to transferred shall not be bound to re-examine the complainant.'

Section 202 of the Code of Criminal Procedure reads:

'202 (1). Any Magistrate, on receipt of a complaint of an offence of which he is ...... which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or, if he is a Magistrate other than a Magistrate of the third Class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint: Provided that, save 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.

(2) If any inquiry or investigation under this Section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.

(2A) Any Magistrate inquiring into acase under this section may, if he thinks fit,take evidence of witnesses on oath.

(3) This section applies also to the police in the towns of Calcutta and Bombay'.

It is thus clear that when the complaint was filed before the Magistrate he would have adopted one of two courses; he would have examined the complainant upon oath and then issue process. On the other hand, he could, under Section 202, Criminal Procedure Code postpone the issue of process and refer the complaint to the Police for further enquiry and then take action on receipt of the report.

5. The other course open to the Magistrate was to send the complaint to the police asking them to take action under Section 156 (3) of Criminal Procedure Code. In that case, the Magistrate would not examine the complainant but merely forward the complaint to the police for investigation and taking cognizance. In the instant case, after the complaint was filed by the petitioner, the Magistrate had referred the complaint to the Police. The order of the Magistrate is as follows:--

'Referred to Police (Magadi Road Post) for investigation under Section 156 (3), Criminal Procedure Code.'

It will be seen that the Magistrate in this case has forwarded the complaint to the Police for investigation and taking cognizance and it is quite clear that the Magistrate acted under Section 156 (3), Criminal Procedure Code and did not take cognizance of the offence. Therefore, the Magistrate was not bound to examine the complainant on oath. He is bound to do so only when he takes cognizance of the case under Section 200, Criminal Procedure Code. In that case, he would have to proceed under Chapter XVI of the Code. On the other hand, if the Magistrate sends the complaint to the Officer-in-charge of the Police Station directing him to proceed under Chapter XIV, he need not examine the complainant on oath. In the present case, it is quite clear that the Magistrate had referred the complaint to the Police (Under Section 156 (3), Criminal Procedure Code); directing him to proceed under Chapter XIV of the Code of Criminal Procedure. Thereafter, when 'B' report was submitted by the Police, on consideration of the material on record, he passed the order in revision. I think, the procedure followed by the Magistrate was proper and it cannot be said that the same is vitiated by any legal infirmity.

6. The second contention of the learned Counsel for the petitioner is also devoid of force. When the complaint petition was sent to the police asking them to take action under Section 156 (3), Criminal Procedure Code, the Magistrate is not bound to examine the complainant, much less, examining the evidence of the complainant. In such a situation he would merely forward the complaint to the Police for investigation and taking cognizance, which he has done. No other contention was raised before me.

7. On the grounds stated above, this revision petition must fail and the same is dismissed.

8. Revision dismissed.


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