Judgment:
ORDER
M.P. Chinnappa, J.
1. Cr.P. 1829/1992 is filed under Section 482 Cr.P.C. to quash the entire proceeding in CC. No. 1546/92 (P.C. No. 66/92) on the file of the learned Addl. Munsiff and JMFC., Virajpet. The operative portion of the order reads :
In the result, cognizance for the offences under Section 427, 324, 506 r/w 34 IPC. is taken against all the accused. Issue S/S to the accused. Call on 8.1.1993'.
2. Similarly, Cr. P. 572/93 is also filed under Section 482 Cr.P.C. questioning the order passed by the Civil Judge & JMFC., Athni, in C.C. No. 111/93 (P.C. No. 35/93). The operative portion of the order reads as under :
'Heard Complainant's counsel. Cognizance is taken of the offences under Section 504, 323 and 506 IPC. against the accused. Register and issue 66 to accused Call on 1/4.'
3. Since common question is involved in these two petitions, they are disposed of by a common order.
In both the cases these impugned orders came to be passed after recording the sworn statement of the complainant and witnesses. As far as facts are concerned, it is not necessary to narrate here as the only point that was canvassed before me is that, the Magistrates have committed an error in taking the cognizance of the offence after recording the sworn statement. Therefore, it is contrary to Section 190 and Section 200 Cr.P.C. On that ground, they submitted both the impugned orders are liable to be quashed.
4. Per contra, learned advocate appearing for the respondent contended that, notwithstanding the fact that, the impugned orders disclose that the cognizance was taken after the sworn statement was recorded, the very tact that, they proceeded to record the sworn statement clearly indicate that, they have taken cognizance and thereafter proceeded to record the sworn statement. Such being the case, learned Magistrates deemed to have taken cognizance before proceeding to record the sworn statement. Therefore, they submitted that, the impugned orders do not call for interference.
5. Learned Counsel for the petitioners however, submitted that, this Court has taken a different view on the ground that, if the order discloses that the cognizance was taken subsequent to the recording of sworn statement, itself is sufficient to quash the proceeding However, this court in a Decision reported in SAMANT vs. K.G.N.TRADERS which reads as under :
'From the fact that the Magistrate on receipt of the complaint directed that it be registered and then adjourned the case to another date and that on that date as well as on subsequent date examined the complainant would clearly indicate that he had taken cognizance of the offence and had decided to take further steps under Chapter XV. Mere fact that while passing a formal order issuing process the Magistrate has again stated that cognizance is taken does not take away the effect of his earlier action which indicated that he had already taken cognizance. The second order regarding cognizance is only superfluous and this cannot vitiate the entire proceedings.'
6. Learned counsel for the petitioners also submitted another Division Bench decision of this Court reported in D.P. SHARMA vs. C.R. GOWDA 1982(2) K.L.C. 358 has held that, in a private complaint examination of the complainant without taking cognizance of the offence would definitely render the subsequent proceedings invalid. Learned counsel for the respondent however submitted that, head note of this decision leads to confusion but it is clearly held in the body of the order that, recording of sworn statement and the subsequent issue of process are made in accordance with law. In view of this, it is necessary to refer the paras 9 and 10 of the order passed by this Court :-
9. 'Therefore, taking cognizance of an offence must precede examination upon oath of the complainant. Therefore, examination of the complainant on oath without taking cognizance of an offence would definitely render the subsequent proceedings invalid.
10. Therefore, now we have to see in this case whether the Magistrate before he recorded the sworn statement of the complainant, had taken cognizance of the offence. There is a note on the front page of the complaint itself that the complainant is presented at 3 p.m., register it as P.C. and call on 6.2.1980' This endorsement clearly goes to show that the Magistrate has applied his mind to the contents of the complaint and, therefore, he adjourned the case for recording the sworn statement of the complainant as required under Section 200. This endorsement coupled with the fact that the Magistrate adjourned the case for recording the sworn statement of the complainant, leaves no doubt in our mind that the Magistrate did apply his mind to the contents of the complaint and found that it was a fit case for taking congnizance and therefore, he adjourned the case for recording the sworn statement of the complainant. Therefore, the argument of Sri Desai that there was no material to show that the Magistrate took cognizance of the offence first before he recorded the statement on oath of the complainant, does not appeal to us in the least. As already stated above, the said endorsement made by the Magistrate coupled with the fact that he adjourned the case for recording the sworn statement of the complainant leaves no doubt in our mind that the Magistrate applied his mind clearly to the allegations in the complaint and after finding that the allegations made in the complaint were sufficient enough to follow the next procedure i.e, recording of sworn statement, he recorded the sworn statement of the complainant. Therefore, we find that the Magistrate has followed the procedure as enjoined on him by Section 200. Therefore, recording of sworn statement and the subsequent issue of process are perfectly legal and in accordance with law. Hence, the said argument advanced by Sri Desai is rejected.'
7. From this also, it is clear that, if the Magistrate proceeds to record the sworn statement, it is implied that, the Magistrate has applied his mind and was of the opinion that, the sworn statement has to be recorded clearly indicates that, he has taken cognizance of the offence. In the order sheet it is clear that, in C.C.No. 56/92, the complaint was lodged on 16.12.1992. On that day, he recorded the statement of the complainant and one witness. Similarly, in C.C.No. 111/93, learned Magistrate recorded the sworn statement of the complainant on 4.3.1993 and thereafter, he passed the order.
8. The Single Judge of this Court in a Judgment reported in NITTI alias KITTARAJU AND ANOTHER. vs. THAMMAIAH SETTY AND ANOTHER 1967 (3) Mys. 105 has held that where on the presentation of a complaint the Magistrate recorded the sworn statement of the complainant that amounts to taking cognizance of the case. Once such cognizance is taken, if the Magistrate desires to postpone the issue of process, he can act only under Section 202 Cr.P.C. The fact that after taking cognizance, the Magistrate directed the complaint to be forwarded to the police for investigation and report under Section 156(3) Cr.P.C. does not detract from the position that the Magistrate had already taken cognizance. This decision came to be rendered following the Judgment of the Supreme Court reported in .
9. The Hon'ble Supreme Court has held in DEVARAPALLI LAKSHMINARAYANA REDDY AND OTHERS. vs. V. NARAYANA REDDY AND OTHERS. AIR 1476 SC 1672
'The expression 'taking cognizance of an offence' by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding section in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a), if instead of proceeding under Chapter IX, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. , Ref.'
From the above decisions it is abundantly clear that the expression 'taking cognizance of an offence' has not been defined. When the Magistrate on receiving a complaint applies his mind for proceeding under Section 200 to Sections 203, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If he takes action of some other kind such as issuing a search warrant or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. Taking cognizance does not involve a formal action or action of any kind that occurs as soon as a Magistrate applies his mind to the suspected commission of offence for initiating judicial proceedings or taking steps but whether there is any basis for initiating judicial proceedings.
10. In this case, the very fact that the learned Magistrate have not referred the case to police for investigation under Section 156(3) or dismissed the complaint or passed any other order but proceed to record the sworn statement of the complainant and the witnesses itself is indicative of application of judicial mind to take cognizance, the very fact completely establishes the act of taking cognizances. In other words the very act further establishes the fact deemed to have taken cognizance of the offence. The section contemplates the fact of taking cognizance only once. When once cognizance was taken, subsequent order only emphasises the fact of taking cognizance but it does not imply the taking of cognizance after recording the sworn statement. Even otherwise Their Lordships of the Supreme Court have held in K.M. MATHEW vs. STATE OF KERALA AND ANOTHER. as under:
'It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.'
From this it is clear that it is always open to the accused to appear before the Magistrate and make out a case that the issuance of process is contrary to the provisions of law. Under those circumstances this Court cannot interfere with the order of issuance of process invoking the inherent power of the Court under Section 482 Cr.P.C. This is further supported by yet another decision of the Supreme Court reported in STATE OF H.P. vs. PIRTHI CHAND AND ANOTHER. 1996 (2) SCC 38 wherein Their Lordships have held :
'High Court should exercise its inherent power to quash FIR/ charge-sheet/complaint only in rarest of rare cases-It should not weigh the pros and cons of the prosecution case or consider effect of non-compliance of mandatory provisions of law.'
Therefore, even if there is any lacuna in the issuance of process it is for the accused to plead before the Court below and establish the same, instead of invoking the jurisdiction of this Court under Section 482 Cr. P.C.
11. Further their Lordships of the Supreme Court in a case reported in STATE OF HARYANA AND ORS. vs. CH. BHAJAN LAL AND OTHERS. wherein Their Lordships have formulated 7 guidelines and held that the High Court may exercise powers under Article 226 or 482 Cr.P.C., may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court. From the above discussion it is abundantly clear even if there is any lacuna it could be cured or the accused can take advantage of it at the time of enquiry or trial before the Magistrate. The accused can also plead before the Court as to why the cognizance should not be taken. All the benefits provided under the Act and also the defence can be taken by the accused before the Trial Court itself.
12. The learned counsel for the petitioner further contended that the sworn statement was recorded with the assistance of advocate and therefore, the entire proceedings have to be quashed. This question was decided by this Court in a decision reported in DURVASA VS. CHANDRAKALA ILR 94 KAR 2429 wherein it is held:
'Examination of complainant : not by party but by Magistrate himself - Non-examination or improper examination not ground to set aside order of Magistrate.'
It is further held that it is the duty of the Magistrate himself to question the complainant and witnesses with regard to the complaint filed before him and the record the substance of the statement. Even if there is any irregularity, that is cured under Section 465 of the Cr.P.C.
13. Therefore, viewed from any angle these petitions are liable to be dismissed. Accordingly they are dismissed.