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H. Basavaiah and anr. Vs. H.G. Krishnappa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1973CriLJ1318
AppellantH. Basavaiah and anr.
RespondentH.G. Krishnappa and anr.
Excerpt:
.....therefore, the act of the petitioners privately viewing obscene film does not constitute an offence under section 292 of i.p.c., the magistrate has erred in taking cognizance of offence under section 292 of i.p.c. hence, proceedings initiated against the petitioners is quashed. - section 436 of the code clearly empowers a sessions judge to direct any judicial magistrate to make further enquiry into any complaint which has been dismissed under section 203 or sub-section (3) of section 204. or into the case of any person accused of an offence who has been discharged. 7. in the light of the above enunciations and discussion, i am clearly of the view that the orders impugned herein cannot be sustained......the accused appeared in response to summons issued, after the case was taken cognizance of by the learned magistrate, in the other case. crime no- 6/1972 the accused appeared even before such summons were issued. in both cases, a contention was taken that the complaints were vitiated on account of want of sanction in accordance with section 170 of the mysore police act. the learned magistrate came to the conclusion, that such sanction was necessary and consequently dismissed the complaints purporting to act in accordance with section 203 criminal p. c. it is relevant to note that the allegations in both the complaints were common and related to one and the same incident and one of the accused was common to both. the complainants thereupon took the matter up in separate revision.....
Judgment:
ORDER

B. Venkataswami, J.

1. These two petitions are directed against two orders made by the Sessions Judge, Bangalore in Criminal Revision Petitions Nos. 11' and 8 of 1972. The said petitions had been preferred by Krishnappa and his brother Subbaiah against the dismissal of their complaints in C.C. No. 2041/1971 and C. R. No. 6/72 made by the Judicial Magistrate First Class (Second Court) Bangalore.

2. The petitioners herein are Police Officers. The complaint of the respondent is that they have committed offences under Sections 345. 323, 355, 384 and 324 I.P.C In C.C. No. 2041/1971 the accused appeared in response to summons issued, after the case was taken cognizance of by the learned Magistrate, In the other case. Crime No- 6/1972 the accused appeared even before such summons were issued. In both cases, a contention was taken that the complaints were vitiated on account of want of sanction in accordance with Section 170 of the Mysore Police Act. The learned Magistrate came to the conclusion, that such sanction was necessary and consequently dismissed the complaints purporting to act in accordance with Section 203 Criminal P. C. It is relevant to note that the allegations in both the complaints were common and related to one and the same incident and one of the accused was common to both. The complainants thereupon took the matter up in separate revision petitions, as mentioned above, before the learned Sessions Judge of Bangalore. The learned Sessions Judge came to the conclusion, in substance, that the dismissal of the complaints was premature and the matter required a further Judge. He therefore remitted the matters to the learned Magistrate for further Judge purporting to exercise the power conferred under Section 436 Criminal P. C. Aggrieved by these orders. the petitioners have approached this Court.

3. On behalf of the petitioners, only one contention has been urged. It is that the learned Sessions Judge had no jurisdiction to interfere with the orders of the learned Magistrate while purporting to act under Section 436 Criminal P. C. The question is that having regard to the true scope and effect of Sections 436, 203. 204 (3) and Section 202 Criminal P. C it would be clear that the learned Sessions Judge's jurisdiction under Section 436 Criminal P. C. is restricted and it would not take within its ambit a dismissal of a complaint for want of sanction under Section 170 of the Mysore Police Act. In support of this submission, the learned Counsel placed reliance on two decisions: Tarlok Nath v. Emperor. AIR 1947 Pesh 58 : (48 Cri LJ 953) and Thimmaiah v. Narasappa AIR 1955 Mys 113 : (1955 Cri LJ 1269).

4. It seems to me that this submission of the learned Counsel must be accepted as correct. Section 436 of the Code clearly empowers a Sessions Judge to direct any Judicial Magistrate to make further enquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204. or into the case of any person accused of an offence who has been discharged. We are now concerned with the case of dismissal under Section 203 of the Code, as that is the provision referred to by the learned trial Magistrate. It seems to me that the reference to Section 203 is rather in a Propriety in the facts and circumstances of the case. As laid down in the decision of Tarlok Nath's case. AIR 1947 Pesh 58 : (48 Cri LJ 953) cited above, such order must be treated as one made by a Court in the exercise of its inherent power and not as one falling under Section 203 of the Code. Section 203 refers to two elements on a consideration of which a Magistrate is empowered to record a finding that there is no sufficient around for proceeding further with a case instituted on a private complaint. The two elements in question are the statement on oath of the complainant and any of his witnesses recorded before the actual taking cognizance of the case and the result of an investigation or enquiry conducted under Section 202 by the Police or such other person who is authorised by the Magistrate to conduct such investigation or enquiry. It is relevant to note that Section 202 provides for the postponement of issue of process to the accused and also for directing an Judge or- investigation to be made by any Magistrate subordinate to such Magistrate before whom the complaint is presented 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. In the instant case, it is clear from the facts of the case, at least in C- C No. 2041/1971 that the accused raised the question as to want of sanction only after they appeared before the Court in response to summons. That being so. it cannot be postulated that the dismissal of the complaint is one really falling under Section 203 of the Code.

5. In regard to the other case i. e.. Crime No. 8/1972 it is true that the petitioners-accused entered appearance voluntarily even before the process was issued. Even in such a case it seems to me that So long as a dismissal of a complaint could not be said in the eve of law to be one falling under Section 203 of the . Code, the jurisdiction of the learned Sessions Judge, under Section 436 of the Code would not come into plav. In this view of the matter, the order made by the learned Sessions Judge in the two revision petitions cannot bp sustained.

6A. The support for this view can be found in the enunciations made in the two decisions cited before me by Shri Shamanna, with which I am in respectful agreement. In Tarlok Nath's case. AIR 1947 Pesh 58 : (48 Cri LJ 953) a Division Bench of the Court of the Judicial Commissioner at Peshawar has stated the position thus:

We are fortified in our view by the fact that their Lordships of the Federal Court when holding that the proper order is to dismiss a complaint where previous sanction for the prosecution of an accused had not been obtained did not refer to Section 203. Criminal P. C. as a provision under which such a dismissal should be ordered. In fact a perusal of Sections 201 and 202 Criminal P. C. leaves no room for doubt that complaints can be dismissed under Section 203 Criminal P. C. only if the Magistrate entertaining them has jurisdiction to take cognizance of them and the dismissal is only possible if after considering the statement of the complainant and the result of any inquiry or investigation under Section 202, Criminal P. C- the court comes to the conclusion that there is no around for issuing any process to secure the attendance of the accused. The dismissal of a complaint under Section 203 Criminal P. C, is therefore, essentially a dismissal on the merits, and can be ordered only where the Court has jurisdiction to hear it. The orders dismissing the complaints in the present cases therefore, do not fall under Section 203, Criminal P.C. They were passed not under any express provision of the Code, but in the exercise of the inherent powers of the Court. In these circumstances, it was not open to the District Magistrate to order further inquiry under Section 436. Criminal P.C. which permits reversals of orders under Sections 203. 204 (3) and 253 Criminal P.C

6B. In Thimmaiah' case AIR 1955 Mys 113 , (1955 Cri LJ 1269) the learned single Judge of the former High Court of Mysore has stated the position thus:

It appears to me that the powers of revision given to a District Magistrate under Section 436 are limited. Those powers can be exercised only for the limited purpose indicated in the section. A further inquiry can be ordered under that section under the revisional jurisdiction of a District Magistrate in cases where a complaint has been dismissed under Section 203 or Sub-section (3) of Section 204 or in cases where a person accused of an offence has been discharged. the present order of the learned District Magistrate holding that no sanction of Government was necessary to Prosecute the present petitioners can neither be said to be an order of dismissal under Section 203 or one under Sub-section (3) of Section 204 nor an order of discharge made under Section 209, 253 or 259 Criminal P. C .Therefore, I am of opinion that the order of the learned District Magistrate was without jurisdiction.

7. In the light of the above enunciations and discussion, I am clearly of the view that the orders impugned herein cannot be sustained. Accordingly. the petitions have to be allowed and the impugned .orders are therefore set aside and consequently the orders made by the learned Magistrate in C. C No. 2041/1971 and C. R. No. 6/1972 stand restored.


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