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Davud Bhai Hasan Alli Vs. Abbas Bhai Abdul Karim and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1972CriLJ970
AppellantDavud Bhai Hasan Alli
RespondentAbbas Bhai Abdul Karim and anr.
Excerpt:
.....so. thereafter the magistrate held an enquiry by examining the complainant and 8 witnesses on his behalf and came to the conclusion that the complainant had failed to make out a case against the petitioner and in that view, he discharged the petitioner. the magistrate was well within his right to do so for many reasons. he is in seisin of nothing and neither the police nor anybody else would complain before him and strictly speaking he could not entertain the complaint. the magistrate will do well in asking the complainant whether any witnesses are present in court and if witnesses are present it is his duty to examine them on path: but if no witnesses are present, he will do well to mention in the order himself that no witnesses were present according to the statement of the complainant..........he will have to merely file the complaint without taking cognizance of the offence. when the police report is against the complainant the magistrate has nothing further to do thereafter. he is in seisin of nothing and neither the police nor anybody else would complain before him and strictly speaking he could not entertain the complaint. if however the magistrate either comes to the conclusion on the material collected by the police during investigation that there is suspicion of commission of the offence, he can direct the police to make further investigation into the matter though it would not be competent for him to direct the police to place a charge sheet.7. when the complainant undertakes to prove his complaint, then it becomes his duty to treat the complaint as a fresh.....
Judgment:
ORDER

C. Honniah, J.

1. This Revision Petition is directed against the order of the Sessions Judge, Bijapur setting aside the order of the J. M, F. C. II court Bijapur, in Criminal Case No. 1763/69 on his file and directing him to hold further enquiry into the case in accordance with law.

2. The facts that have given rise to this revision petition lie in a very narrow compass. One Abbas Bhai Abdul Karim Bhorishet (1st respondent herein) filed a complaint against Dayal Bhai Hasan Alii Kolhapurwala Petitioner herein) alleging that in the year 1962 the petitioner was entrusted with certain jewels and was asked to pledge them for him for Rs. 1100/- in Mahalakshmi Bank at Bijapur as he wanted the money immediately for starting a hotel. Accordingly the petitioner pledged the jewels in the Bank for Rs. 1100/- and paid the same to the complainant.

Later it appears the complainant paid back this sum on various occasions asking the accused to redeem the pledged article and deliver the same to him. The accused appears to have paid the loan amount and got back the jewels from the Bank on 2-1-1967, but he did not hand over the same to the complainant. Inspite of repeated requests made by the complainant to return the jewels the petitioner did not return them to him. In this behalf there was a panchayati and in that panchayati the petitioner promised to return the jewels but he failed to do so. But on the other hand, he pledged the jewels in another Bank. On these facts, it was alleged by the complainant that the accused had committed an offence punishable under Section 406 of the Indian Penal Code.

3. The Magistrate without taking cognizance of the complaint, sent the same under Section 153 (3) Cr. P.C. to the Circle Inspector of Police, Bijapur, for investigation and report. The circle Inspector of Police entrusted the work to the Sub Inspector of police of Gandhi Chowk Police Station who registered a case in Crime No. 87/68. After investigation into the complaint, he submitted a 'B' report on 9-10-1968 stating that the complainant had given a false complaint due to the ill-will existing between him and the petitioner.

4. Some time after the report was submitted, the Magistrate heard the counsel for the complainant and the Assistant Public Prosecutor about the 'B' report. It appears that the Assistant Public Prosecutor could not support the 'B' report submitted by the police. Whereupon the Magistrate directed to register a case against the petitioner under Section 406 I. P.C. and also directed the complainant to file a list of witnesses to be examined on his behalf. The complainant filed a list of witnesses and requested the court to issue summons to the petitioner. The Magistrate issued summons to the petitioner and in obedience thereto the petitioner appeared in court. Thereafter the Magistrate held an enquiry by examining the complainant and 8 witnesses on his behalf and came to the conclusion that the complainant had failed to make out a case against the petitioner and in that view, he discharged the petitioner. Aggrieved by this decision the complainant preferred a revision petition to the court of the Sessions Judge at Bijapur, which, as already stated above, set aside the order of the Magistrate and directed him to hold further enquiry according to law.

5. The Question that arises in this case is whether the learned Magistrate, without following the provisions of Section 200 Cr. P.C. could have issued summons to the accused to appear before him to answer a charge under Section 406 I. P.C. and whether he could have proceeded further to examine the witnesses on the complaint being presented before the Magistrate without taking cognizance of the offence and sent complaint to the police under Section 156 (3) Cr. P.C. for investigation and report.

The Magistrate was well within his right to do so for many reasons. When there is an investigating agency made for that purpose he thought that the police would do the thing and by doing so he would be saving his own time. On receipt, of the 'B' report, the Magistrate straight way directed issue of process to the petitioner which in view of the mandatory provisions of Section 200 Cr. P.C. is illegal and this non-compliance with the provisions goes to the very root of the jurisdiction of the Magistrate to proceed to investigate into the allegations made by the complainant against the petitioner.

6. 'What is taking cognizance' has not been defined in the Code and it is not for me to attempt to define it. It seems to me clear however that before it ran be said that any Magistrate has taken cognizance of any offence under Section 190 (1) (a) Cr. P.C. he must not only have applied his mind to the contents of the petition but he 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 Chapter XVI. but for taking action of some other kind. i. e. 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. It is thus clear that a Magistrate proceeding under Section 156 (3) on receipt of a complaint, does not take cognizance of the complaint.

When the Magistrate refers the complaint to the Police for investigation and report, he would not be taking cognizance of the offence. On investigation into the allegations contained in the complaint, the police may submit a report either confirming the allegations or negativing the same. In the former case the Police Officer shall send a charge sheet against the concerned person as provided under Section 170 Cr. P.C. and thereafter the Magistrate will have to proceed to enquire into the same as if a case instituted on the report of the Police. In the latter case however there are two courses open to the Magistrate either to accept the report or not to accept it. In the former case he being not in seisin of anything, he will have to merely file the complaint without taking cognizance of the offence. When the Police report is against the complainant the Magistrate has nothing further to do thereafter. He is in seisin of nothing and neither the police nor anybody else would complain before him and strictly speaking he could not entertain the complaint. If however the Magistrate either comes to the conclusion on the material collected by the police during investigation that there is suspicion of commission of the offence, he can direct the police to make further investigation into the matter though it would not be competent for him to direct the police to place a charge sheet.

7. When the complainant undertakes to prove his complaint, then it becomes his duty to treat the complaint as a fresh complaint and to proceed as provided under Chapter XVI Cr. P.C. Section 200 of the Code of Criminal Procedure provides:

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

(The other clauses of this proviso are not necessary for the decision of this case).

It is therefore clear that Section 200 Cr. P.C. is mandatory and it is obligatory on the part of the Magistrate to examine not only the complainant, but also the witnesses who are present in court. The Magistrate will do well in asking the complainant whether any witnesses are present in Court and if witnesses are present it is his duty to examine them on path: but if no witnesses are present, he will do well to mention in the order himself that no witnesses were present according to the statement of the complainant or the Advocate who appears in Court. If in spite of the opportunity given to the complainant he does not ask the Magistrate to take the evidence of his witnesses there is no obligation on the part of the Magistrate to call upon the complainant suo motu to examine his witnesses.

The examination of the complainant is not to be a mere matter of routine but must be such as to help the Magistrate in judging whether or not sufficient grounds exist for proceeding with the case. It is obvious from the provision that the Magistrate to whom a complaint is preferred is bound to examine the complainant and his witnesses who are present and should not issue process unless the complainant satisfies him that there is sufficient ground for proceeding. If that is done and if the Magistrate finds the complaint false and groundless then he would dismiss the complaint and it follows that he would not issue process to the accused. It is only in cases where the complainant satisfies the Magistrate by examining himself and his witnesses on oath that there are sufficient grounds to issue process against the accused then only he would do so.

8. In the instant case, the Magistrate after the 'B' report was received, as already stated, took cognizance of the offence under Section 406 IPC and directed issue of process to the petitioner without examining the complainant or his witnesses that were present, if any. The stage at which the Magistrate took cognizance of the offence and directed issue of process to the petitioner was stage at which as if the complainant filed his complaint for the first time before the Court. If that be so if the Magistrate failed to follow the mandatory provisions of Section 200 Cr. P.C. the subsequent proceedings as examining the complainant and his witness and other assessing their evidence discharging the accused all become illegal.

9. I may observe here that the Magistrate could have done well by examining the complainant and his witnesses, examined now, before issuing process to the accused. If that had been done, on the facts of this case, probably the Magistrate would not have issued process to the accused. But any way. it is entirely a matter for the Magistrate to decide whether on examining the complainant and his witnesses process has got to be issued or not. The Magistrate's directed to adhere to the mandatory provisions of Section 200 Cr. P.C. and then decide whether process has got to be issued to the petitioner or not

10. For the reasons stated above this revision petition fails and is accordingly dismissed.


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