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Gurubasappa Gurupadappa Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1979CriLJ294
AppellantGurubasappa Gurupadappa
RespondentState of Karnataka and ors.
Excerpt:
.....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. indian penal code,1860[c.a.no.45/1860] section 292: [dr. k.bhakthavatsala, j] offence under - allegation that petitioners were watching obscene film privately in their residence - whether privately viewing obscene film constitute an offence punishable under section 292 of i.p.c., ? held, section 292 of i.p.c. was added in accordance with the resolution passed by the international convention for the suppression and circulation of, and traffic in, obscene publications, signed at geneva on behalf of the governor general in council on the 12th day of september 1923. it is..........to sub-section (1) of section 202 cr.p.c. is a statutory bar for referring the complaint to the police lor investigation since one of the offences alleged against the accused is exclusively triable by the court of session. this contention will have no force for the reasons i presently show. the procedure to be followed in complaints to the magistrate is laid down in chapter xv of the cr.p.c. which contains section 200 to section 203- it is provided under section 200 that a magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and it shall be signed by the complainant and the witnesses, and also by the magistrate. an exception is made for the.....
Judgment:
ORDER

N.R. Kudoor, J.

1. The short point involved in this criminal petition is whether a Magistrate before whom a private complaint is filed is empowered to refer the complaint for investigation under Section 156 (3) of the Code of Criminal Procedure, if the offences disclosed in the complaint are exclusively triable by the Court of Session.

2. The facts necessary for deciding the question involved in the petition may be stated as under:

The petitioner herein Sled a private-con-plaint under Section 200. Cr. P. G. on 26-8-1977 against respondents 2 to 19 before the Munsiff and J. M. F. G., Ranebennur alleging commission of offences punishable under Sections 395, 149, 447 and 504 read with Section 34, I. P. C. After the complaint was (To set aside the order of Prl. Munsiff and J. M. F. C. Ranebennur, D/- 29-8-1977.) filed, the Magistrate, under his order dated 29-8-1977, referred the case to the Circle Inspector of Police, Ranebennur for investigation and report under Section 156 (3) Cr.P.C.

3. The question now for consideration will be whether this order referring the complaint for investigation under Section 156 (3) Cr, P. C. is valid in law.

4. Sri A. H. Bhagavan, the learned Counsel appearing for the petitioner contended that Clause (a) of the proviso to Sub-section (1) of Section 202 Cr.P.C. is a statutory bar for referring the complaint to the police lor investigation since one of the offences alleged against the accused is exclusively triable by the Court of Session. This contention will have no force for the reasons I presently show. The procedure to be followed in complaints to the Magistrate is laid down in Chapter XV of the Cr.P.C. which contains Section 200 to Section 203- It is provided under Section 200 that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and it shall be signed by the complainant and the witnesses, and also by the Magistrate. An exception is made for the examination of the complainant and the witnesses if the complaint is made in writing to the Magistrate in the cases referred to in Clauses (a) and (b) of the first proviso to Section 200. Section 202, Cr.P.C. will come into play after the Magistrate takes cognizance of the offence under Section 200 Cr.P.C. and before issue of process to the accused. If after taking cognizance of the offence, the Magistrate thinks fit in a given case to postpone the issue of process against the accused, he can either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. However, in a case which is exclusively triable by the court of session, the Magistrate is not empowered to give any direction for investigation in view of the provision contained in Clause (a) of the proviso to Sub-section (1) of Section 202. Cr.P.C. On the other hand, he himself should conduct an inquiry as provided under the proviso to Sub-section (2) of Section 202, Cr.P.C.

5. Section 156 is found in Chapter XII of the Code of Criminal Procedure under the head Information to the police and their powers to investigate'. It is provided under Section 156 (3) that any Magistrate empowered under Section 190 may order an investigation of a cognizable case by the police. The power of the Magistrate to direct an investigation under Section 156 (3) is an independent power outside the scope of Chapter XV. However, if the Magistrate once takes cognizance; of an offence on complaint under Section 200, then he could act only under the other Sec-1 tions of Chapter XV. On the other hand, if the Magistrate does not take cognizance of an offence on a complaint filed under Section 200, he is empowered to refer the complaint for investigation by the police under Section 150 (3) Cr.P.C In such a case, the prohibition contained in Clause (a) of the proviso to Sub-section (1) of Section 202 would not come into play-

6. In the instant case, admittedly the Magistrate did not take cognizance of the offence on the complaint filed by the petitioner. He straightway referred the complaint for investigation under Section 156 (3) Cr. P- C. That being so, the contention urged by the learned Counsel for the petitioner is clearly unsustainable. Consequently the petition also fails and the same is dismissed.


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