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V. Dhanalakshmi and anr. Vs. C.L. Dikshitulu and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Misc. Petn. No. 1316 of 1982
Judge
Reported in1983CriLJ560
ActsIndian Penal Code (IPC), 1860 - Sections 34, 109, 120-B, 193 to 196, 199, 200, 205 to 211, 228, 408 and 468; ;Code of Criminal Procedure (CrPC) , 1973 - Sections 195, 195(1), 340 and 340(1)
AppellantV. Dhanalakshmi and anr.
RespondentC.L. Dikshitulu and anr.
Appellant AdvocateB.V. Sesha Reddy, Adv.
Respondent AdvocateC.S. Narayana Murthy, Adv.
Excerpt:
.....file of magistrate - magistrate without following procedure prescribed under section 340 took on file complaint for offence punishable under section 211 - held, cognizance by magistrate was illegal and liable to be quashed. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to..........procedure prescribed under s. 340, cr.p.c. he also contends that it is the magistrate that has to file a complaint but not a private party under section 195, cr.p.c. for an offence punishable under s. 211, i.p.c. and that too after following the procedure prescribed under s. 340. cr.p.c. he, therefore, contends that the criminal proceedings in c.c. no. 399 of 1981 should be quashed. 4. sri c. s. narayanamurthy, the learned counsel for the first respondent, contends that the learned magistrate has initiated the criminal proceedings under s. 340, cr.p.c. and the matter is under the stage of enquiry as contemplated under sub-section (1) of section 340, cr.p.c. and hence the question of quashing of the proceedings does not arise. 5. section 195(1)(b)(i), cr.p.c. specifically provides that.....
Judgment:
ORDER

1. In this petition the criminal proceedings in C.C. No. 399 of 1981 on the file of the X Metropolitan Magistrate, Secunderabad are sought to be quashed. The petitioners herein are the accused 1 and 2 in the abovementioned C.C. which was taken on file under S. 211 read with Sections 120B, 109 and 34, I.P.C.

2. The brief facts leading to this petition are stated thus : The police filed a charge-sheet against the first respondent herein in the X Metropolitan Magistrate's Court, Secunderabad which was taken on file as C.C. No. 95 of 1979 under sections 408 and 468, I.P.C. The case was tried and ultimately the learned magistrate acquitted the accused therein, who is the first respondent herein. Then the first respondent became aggrieved with the criminal proceedings initiated against him and filed a complaint before the same learned Magistrate. His sworn statement was recorded and it was taken S. 211 read with Sections 120-B, 109 and 34, I.P.C. against the petitioners who are the accused therein and the summons were issued for the apprehension of the accused.

3. Sri B. V. Sesha Reddy, the learned counsel for the petitioners, contends that the learned magistrate has no jurisdiction to initiate proceedings without following the procedure prescribed under S. 340, Cr.P.C. He also contends that it is the Magistrate that has to file a complaint but not a private party under section 195, Cr.P.C. for an offence punishable under S. 211, I.P.C. and that too after following the procedure prescribed under S. 340. Cr.P.C. He, therefore, contends that the criminal proceedings in C.C. No. 399 of 1981 should be quashed.

4. Sri C. S. Narayanamurthy, the learned counsel for the first respondent, contends that the learned Magistrate has initiated the criminal proceedings under S. 340, Cr.P.C. and the matter is under the stage of enquiry as contemplated under sub-section (1) of Section 340, Cr.P.C. and hence the question of quashing of the proceedings does not arise.

5. Section 195(1)(b)(i), Cr.P.C. specifically provides that no court shall take cognizance of any offence punishable under sections 193 to 196, 199, 200, 205 to 211 and 228, I.P.C. when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of that Court or of some other Court to which that Court is Subordinate. As the offence alleged in the case on hand is one punishable under S. 211, I.P.C., S. 195(1)(b)(i), Cr.P.C. expresses prohibition against taking cognizance of the said offence except on the complaint in writing of such Court. This section is enacted wit the intention to safeguard against irresponsible and reckless prosecutions by private individuals in respect of offences, which relate to the administration of justice. If a party files a private complaint as in the case on hand alleging that the accused committed an offence punishable under S. 211, I.P.C., the Legislature insists on the Magistrate to follow the procedure prescribed under S. 340, Cr.P.C.

6. Section 340, Cr.P.C. requires the Magistrate before whom the private complaint is filed to hold preliminary enquiry, if he thinks it necessary and (a) record a finding to that effect, (b) make a complaint thereof in writing, and (c) send it to a Magistrate of the first class having jurisdiction. In this case, the learned Magistrate without following the procedure prescribed under S. 340, Cr.P.C. has taken on file the complaint for an offence punishable under S. 211, I.P.C. The cognizance taken by the Magistrate is, therefore, illegal and it is liable to be quashed. Hence the proceedings in C.C. No. 399 of 1981 on the file of the X Metropolitan Magistrate, Secunderabad, are quashed and the petition is allowed.

7. Petition allowed.


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