Home > Quash > Justice K.S. Puttaswamy (Retd.) in 498A as accused!!!

Justice K.S. Puttaswamy (Retd.) in 498A as accused!!!

http://www.indiankanoon.org/doc/612870/

Equivalent citations: II (1997) DMC 503, ILR 1997 KAR 1729, 1997 (3) KarLJ 227

Bench: A Farooq

Justice K.S. Puttaswamy (Retd.) vs State Of Karnataka on 14/2/1997

ORDER

1. This is a petition filed under Section 482 of the Code of Criminal Procedure, Petitioner has sought for quashing proceeding in C.C. No. 2937/96 on the file of the learned Addl. C.M.M. Bangalore. He has also sought for quashing of the order dated 16-12-1996 passed by the learned magistrate taking cognisance of the offences under Sections 498A, 302, 30-B, 506, 201 and 202, I.P.C. and Sections 3, 4 & 6 of Dowry Prohibition Act.

2. A notice of this petition was given to the presecution and the respondent State has filed a detailed objections.

3. The brief facts that are necessary to dispose of this criminal petition are that on 9-1-1992 at about 5.30 a.m. Smt. Sujatha w/o Reveendra the third son of the petitioner suffered burn injuries in the house of the petitioner where she lived along with the petitioner, her husband, her mother-in-law and other family members. At about 6.30 a.m. she was shifted to Agadi Nursing Home, Bangalore and at the Nursing Home, she made a statement to the doctor stating that she suffered burn injuries accidentally. She was discharged from Agadi Nursing home on 11-1-1992 and she was admitted to the Lakeview Nursing home at Bangalore on 12-1-1992. At the time when she was admitted to Lakeview Hospital her parents were with her and she has made a statement before the doctor at Lakeview Hospital stating that she has suffered burn injuries accidentally. She was discharged from Lakeview Nursing home on 1-2-1992 and thereafter she was admitted to M. S. Ramaiah College Hospital. However, she died while undergoing treatment on 2-2-1992 and the cause of death was due to the burn injuries. No complaint was lodged by any person till then. However, the death of Smt. Sujatha was published in a Kannada news paper published from Bangalore ‘Ee Sanje’ and a case was registered by the Wilson Garden Police in C. Misc. 107/92 on 20-2-1992 and on the next day, the P.S.I. of the said Police Station went and met the mother of the deceased, who later on filed the complaint. However, she refused to give a complaint or any statement to the police. On 23-2-1992 the mother of the deceased Lalithamma lodged a complaint with the Wilson Garden Police alleging offence under Sections 498-A, 304-B, 302, 201, I.P.C. and Sections 3, 4 & 6 of the Dowry Prohibition Act. FIR was sent to the Court on the said complaint. After due investigation by the COD to whom the investigation was entrusted filed a charge-sheet on 21-3-1994 in C.C. No. 2155/94 before the learned Additional Chief Metropolitan Magistrate, Bangalore. In the said charge-sheet, the police has shown the husband of the deceased Smt. Sujatha that is, Raveendra as accused No. 1, Smt. Theyamma wife of the petitioner as accused No. 2 and the M. R. Anand Rama, Administrator of M. S. Ramaiah College Hospital as accused No. 3. A note was put up alongwith the charge-sheet by the Investigating Officer stating that for want of proof, accused Nos. 4, 5 & 6 were not sent for trial. Accused No. 4 mentioned in the report is none other than the petitioner. The learned Magistrate took cognizance of the offence for which the charge-sheet has been filed and committed the case to the Court of Session. The Court of Session was seized of the matter after it was committed before it by the learned Magistrate and the Sessions case No. 50/95 has been registered before the 23rd Additional City Civil and Sessions Judge, Bangalore. It is stated that in the said matter, accused persons had already started arguing for discharge of all the accused persons and the matter is still pending and the argument has not completed. At this stage, the Investigating Officer, filed another charge-sheet before the learned Magistrate against A-1 to A-4 showing the petitioner as accused No. 4 for the same offences, for which cognizance was already taken by the Magistrate earlier and which has been already committed to the Court of Session and the Court of Session has seisin of the matter and which is pending trial in the Sessions case No. 50/95. The learned Magistrate on receipt of the charge-sheet on 16-12-1996 has noted that charge-sheet has been filed by the Inspector of COD through the Senior APP against accused Nos. 1 to 4 for offences punishable under Sections 498-A, 302, 302-D, 506, 176, 201, 202, I.P.C. and Sections 3, 4 & 6 of the Dowry Prohibition Act. Original F.I.R. in Crime No. 118/92 kept in C.C. No. 2155/94 (which was the first charge-sheet and on which cognizance was taken and the matter which is already committed to the Sessions Court). It is also written in the order sheet that the charge-sheet and connected papers were checked and accused Nos. 1, 2 & 4 were on bail and accused No. 3 was not arrested and the copies for the accused were also enclosed and thereafter, he took cognizance of the offence and directed registration of the case and also directed issue of summons to the accused persons. 4. Sri M. V. Devaraju, learned counsel appearing for the petitioner submitted that the learned Magistrate has already taken cognizance of the offences alleged in the charge-sheet originally presented before the Magistrate and committed the matter to the Sessions Court and sent the three accused persons against whom report has been filed to the Sessions Court for trial. When such is the case, it is submitted that under Section 193 of the Criminal Procedure Code, the Sessions Court takes cognizance of the offence and when the Sessions Court has already taken cognizance of the offences under Section 193 of Cr. P.C., the Magistrate has no jurisdiction to again take cognizance of the very offences for which the Sessions Court has already taken cognizance. The learned counsel also submitted that even though the Investigating Officer has got power to further investigate into the offence and file additional charge-sheet as provided under Section 173(8) of the Code of Criminal Procedure, that has to be done only before the Court, where the matter is pending trial and once the Magistrate has committed the matter to the Court of Sessions, the Investigating Officer has to file the additional charge-sheet before the Court of Sessions. The learned counsel further submitted that the learned Magistrate has no jurisdiction at all to take cognizance of the same offences twice.

5. Sri M. H. Ibrahim, learned High Court Government Pleader, on the other hand, submitted relying upon the judgment of the Gujarat High Court in Deepak Dwarkadas Patel v. State of Gujarat, 1980 Cri LJ 29, that it was not at all necessary that there should be a fresh investigation and discovery of new material for filing an additional charge-sheet in a criminal case and if the very material is misunderstood by the Police Station Officer and if he has received proper light from his superiors, he can certainly file an additional charge-sheet and the Magistrate has got power to take cognizance on the additional charge-sheet filed by the Investigating Officer. In the judgment of the Gujarat High Court, Court was considering about filing of additional charge-sheet. Therefore, while I am unable to accept the submission made by the learned High Court Government Pleader, I am of the view that there is much force in the submission made by the learned counsel for the petitioner. Under Section 190 of the Cr.P.C., the Magistrate before whom a report is filed has jurisdiction to take or not to take cognizance of any offence. The Magistrate takes cognizance of the offence and not the offenders. Once he takes cognizance of the offence and if the case is triable by the Sessions Judge and in the course of the trial Sessions Judge comes to the conclusion from the evidence on record that there are other accused persons also involved in committing the offence, for which the charge-sheet has been filed, he has got jurisdiction under Section 319 of the Criminal Procedure Code to add any person as an accused, who has not been named by the Investigating Officer as an accused. Thus power of the Magistrate is restricted when the Magistrate takes cognizance in a case, which is exclusively triable by the Court of Sessions. When a charge-sheet is filed by the police in an offence which is exclusively triable by the Court of Sessions, if the Magistrate takes cognizance of the offence, for which the charge-sheet is filed, he has to commit the matter to the Court of Sessions. When once the matter is committed to the Court of Sessions, the Court of Sessions takes cognizance of the offence or the offences under Section 193, Cr.P.C. When once the Sessions Court takes cognizance of the offence under Section 193, Cr.P.C., any further documents or materials in respect of the offence, for which the Sessions Court has taken cognizance has to he placed before the Sessions Judge, who has taken cognizance. The Investigating Officer has no authority to place any document in respect of the said case before a Magistrate or before any other Court. In this respect, the Hon’ble Supreme Court in Raj Kishore Prasad v. State of Bihar, has held in paras 8, 11, 14 & 16 as follows :

8. Sub-section (1) of Section 319 makes it clear that it operates in an on-going inquiry into, or trial of, an offence. In order to apply Section 319, it is thus essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial, Proceedings before a Magistrate under Section 209, Cr.P.C., are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. Now do they continue to be so is the core question, to determine and spell out the powers of the Magistrate under Section 209 Cr.P.C. If proceedings under Section 209, Cr.P.C. continue to be an inquiry, Sections 319 Cr.P.C., would be obviously attracted, subject of course to deciding whether the material put-forth by the investigation could be termed as ‘evidence’, as otherwise no evidence is recordable by a Magistrate in such proceedings.”

11. “The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as “committal proceedings” have been abolished in case triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application or mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirement of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of “inquiry” as defined in Section 2(g) of the Code of Criminal Procedure, which defines that “inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court”, because of the prelude of its being “subject to the context otherwise requiring”. As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209, Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session.”

14. “Learned counsel differ however on the other question posed in Kishun Singh’s case 1993 AIR SCW 771 : (1993 Cri LJ 1700). It was whether a Court of Session, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision ? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the Court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court sustained the order of the Court of Sessions (though it ostensibly was under Section 319, Cr.P.C., terming material of investigation before it as ‘evidence’) summoning the un-named accused to stand trial with the name – accused. A stage has thus been discovered, before the reaching of the state for exercise of power under Section 319, Cr. P.C., on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Sections 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228 the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused if a prima facie case is made out from the material available on the record.” 16. “Thus we come to hold that the power under Section 209, Cr.P.C., to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an ‘inquiry’ and material before him not being ‘evidence’. When such power was not vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, (sic) the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319, Cr.P.C. has not arrived. The Order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319, Cr.P.C. when handling a matter under Section 209, Cr.P.C., the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Sessions and evidence is recorded, it may then in exercise of its powers under Section 319, Cr.P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguard envisaged under sub-section (4) of Section 319. Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the Magistrate, the Court of Session and that of the High Court. Any other course would cause serious prejudice to the appellant. We order accordingly.”

From the above reading of the observation made by the Hon’ble Supreme Court in the above mentioned case, it is clear that the Magistrate undertaking commitment under Section 209 of the Code of a case triable by a Court of Sessions cannot associate another person as accused in exercise of the power under Section 319 of Cr.P.C., or under any other provision. In order to apply Section 319, Cr.P.C., it is essential that need to proceed against a person other than the accused appearing to be guilty of the offence arises only on evidence recorded in the course of any enquiry or trial and the Hon’ble Supreme Court has held that a committal proceeding before a Magistrate is neither an enquiry nor a trial. Therefore, the Magistrate has no power either to add or delete an accused. Here in this case, what the Investigating Officer has done, is to file another charge-sheet for the same offences and for the same incident, for which she had already filed the charge-sheet, for which the Magistrate has already taken cognizance and already committed the case of the Court of Sessions. Along with the new charge-sheet she has filed a memo in Kannada, the translation of which reads as follows :

“In the above case, the charge-sheet was filed on 22-3-1994, in C.C. No. 2155/94, and the same is pending before the Hon’ble Court. In that case A1. Ravindra, A2. Thayamma and A3. Ananda Ram are accused.

The Legal Advisor Sri B. Venkata Rao, of COD has opined that on re-examination of the records of the case, even against the omitted accused K. S. Puttaswamy, there is material to charge-sheet him.

After accepting the suggestion and discussing the same with him and on the higher officer’s direction to file Additional charge-sheet against accused No. 4, K. S. Puttaswamy an additional charge-sheet is filed.” No other extra materials have been produced before the Magistrate. What the I.O. has done is to tell the Magistrate that even though the I.O. has opined in the earlier charge-sheet that there is no case made out against accused No. 4, who is the petitioner herein, the Legal Advisor of the C.O.D. has given an opinion that on re-examination of the records of the case, there is a case against the petitioner, who is accused No. 4 and therefore, there is material to charge-sheet him and accepting the legal opinion given by the Legal Advisor, the I.O. has filed the present charge-sheet. The learned Magistrate takes cognizance of the same as narrated in the earlier paragraphs and issues summons to the petitioner. The Investigating Officer, in this case done (sic) is to tell the Magistrate to commit the present petitioner also to the Court of Sessions to be tried along with the other accused persons in the matter, which is already committed to the Court of Sessions. In other words, the Investigating Officer is directing the Magistrate to take cognizance of the offender and not the offences, which is clearly in violation of the principles laid down by the Hon’ble Supreme Court in the various decisions including the one relied upon by me in the above mentioned paragraphs. When the Court takes cognizance of only an offence, the power of the Court is unfettered and includes the power to add or delete any other accused as mentioned by me above, if in the course of the trial, there is evidence to indicate that the said person is also involved in the crime. Once the Investigating Officer has filed a charge-sheet and Court has taken cognizance of the offence and committed the case to Court of Sessions and also directed some of the accused persons to stand for trial before the Court of Sessions, it should be presumed that the Magistrate has perused the records filed before him and the Magistrate has himself come to the conclusion while taking cognizance that there is prima facie case only against those persons, whom he has asked to stand for trial before the Court of Sessions. That view of the Magistrate while taking cognizance and committing the case to the Court of Sessions, cannot be substituted by any act of an Investigating Officer by giving his opinions. The opinion of the Investigating Officer in any particular case is not relevant at all for the Magistrate either while taking cognizance or while sending the matter to the Court of Sessions. Even if the Investigating Officer has given an opinion that there is no case made out against any of the accused, the Magistrate can always take cognizance of the offence and also commit accused persons against whom a charge-sheet is filed in spite of a negative opinion given by the Investigating Officer. In the earlier charge-sheet eventhough the petitioner’s name has been mentioned as one of the accused, the Investigating Officer has given an opinion along with his report saving that this petitioner, who is accused No. 4 has not been sent up for trial because of lack of evidence against him. The learned Magistrate after perusal of the record has accepted the report and took cognizance of offence and made up his mind to send only three of the accused persons to stand trial before the Sessions Court. Once it is committed to Sessions Court, the Sessions Court having seized of the matter and having taken a cognizance under Section 193 of Cr.P.C., it is for the Sessions Court to look whether there is any accused to be added or deleted in the matter and the Magistrate has no power at all to take cognizance for the second time for the same offences. In Rajkishore Prasad’s case (1996 Cri LJ 2523) the Hon’ble Supreme Court as mentioned above, has observed in para 14 that on the basis of section 193 of the Code as it presently stands provides that once an accused is committed to the Court of Sessions by a Magistrate, the restriction placed on the power of the Court of Sessions to take cognizance of an offence as a Court of original jurisdiction gets lifted thereby investing the Court of Sessions an unfettered jurisdiction on take cognizance of the offence, which would include summons of the person or persons, whose complicity in the crime can prima facie be gathered from the material available on the record.

6. In Hemani P. Visanji v. Mulshankar Shivaram Raval, 1991 Crl. LJ 3144, the High Court of Bombay has held that the policy of the legislature appears to be that when cognizance is taken of the offence, the Court taking cognizance will take cognizance of the offence as such and not merely the particulars of the person, who are alleged to have committed an offence. It is quite conceivable that in a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making persons who are known offenders as the accused. When such a trial proceeds against the known accused and if the evidence led in the trial disclose the offence committed by other persons, who could be tried along with the accused, then Section 319 of the Code comes into play and it would be permissible to exercise its powers thereunder. It is, therefore, observed that Section 319 of the Code of Criminal Procedure that policy of the Code is that offence can be taken cognizance once only and not repeatedly upon discovering further particulars and if it was permissible to take cognizance of the same offence repeatedly, then it was unnecessary for the Legislature to have put Section 319 of the statute book as it would be redundant.

7. After considering the entire materials on record, I am of the view that the impugned order passed by the Magistrate taking cognizance of the offences and issuing summons to the petitioner is without jurisdiction and it cannot be sustained.

8. In the result, I allow this petition and set aside the impugned order and the proceedings pending against the petitioner in C.C. No. 2937/96 on the file of the learned First Addl. C.M.M. Bangalore are hereby quashed.

9. Petition allowed.

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