Kedargouda Vs. Mallanagouda - Court Judgment

Excerpt:
criminal procedure code, 1973 (central act no. 2 of 1974) - section 200 -- magistrate can entertain complaint against others not sent up by police in their final report -- having already taken cognizance of offences against some, on the final report of police, it is sufficient to examine few important witnesses, not all, to take cognizance against others.;on the final report placed by police, against four accused, cognizance having been taken, they were committed to sessions. meantime, a complaint having been preferred against another i.e 5th accused (petitioner), who was omitted in police report, magistrate took cognizance after recording statements of complainant (1st respondent) and 3 others and issued process ; challenged on the ground that magistrate had no powers to entertain the complaint in view of section 319 of the code, which conferred necessary powers on sessions court. per contra, contended that power of magistrate to go into a private complaint is unaffected by section 319 of the code.;(i) in a situation like this, in an appropriate case, the jmfc can entertain a complaint and examine on merits to find out as to whether he should issue process to others also not sent up by the police in their final report.;(ii) the court takes cognizance of the offences and not of the offenders. before issuing process, the court will have to see as to whether there is a prima facie case in re : the alleged offence and, if so, process is to be issued.;in the instant case, the court below, had taken cognizance of the offences in question on the final report submitted by the police earlier to this complaint. the only question that was required to be examined by the learned magistrate in the matter of this complaint was as to whether process was required to be issued to the petitioner also. it is from this angle and to examine this limited question the learned magistrate, using his discretion, had chosen to examine some of the important witnesses and this he appears to have done exercising his powers under section 202 of the code. in this circumstances, the ratio that the court should examine all the witnesses will not apply and it is sufficient if he examines a few important witnesses. - mysore general clauses act, 1899section 6: [s.r. bannurmath & subhash b. adi, jj] karnataka rent act, 1999, section 70 - held, if there is only repeal of the act and nothing more is shown, provisions of section 6 of the mysore general clauses act, 1899 in its entirety would have applied. section 6 of the mysore general clauses act is subject to any different intention appearing in the repealing act. legislature in its wisdom has expressed a clear different intention in regard to pending cases, all pending cases and proceedings are governed by the provisions of section 70 of the act. in view of the provisions of section 70, sub-section (2), (b) and (c), none of the pending proceedings could escape from the said provision. section 70 does not take care of all situations such as, cases where the proceedings are pending in execution case, the cases where the proceedings are pending for which the act is applicable and cases to which the act is not applicable. hence, the proceedings are governed only by the provisions of section 70 of the act and the provisions of section 6 of the mysore general clauses act and same will have no application. division bench considered the effect of the provisions of section 70, sub-section (3) also. karnataka rent act, 1999 (34 of 2001) sections 3(n), 5 & 70: [s.r. bannurmath & subhash b. adi, jj] tenant and inheritability of tenancy - case referred to division bench by a single judge as there was a conflictive view regarding application of act - initially eviction petition filed under section 21(1)(h) of the 1961 rent act (repealed act) - trial judge passed eviction order by applying provisions of present rent act of 1999 - points for consideration - (i) whether the provisions of section 5 are applicable to the proceedings initiated under the repealed act ? (ii) whether the legal representatives brought on record during the pendency of the proceedings under the old act would become tenant within the meaning of section 3, clause (n) of the act and provisions of section 5 in such cases are not applicable ? (iii) whether the view taken by the single judge in smt. thilothamma & anr v smt rahmathunnisa, 2002 (6) klj 368 is good law or the view taken in smt. sundari acharthi v n. shankara bangera, 2003 (2) klj 181 is good law? held, the object and intention with which the karnataka rent act, 1999 has come into force is different from the object with which the repealed act was enacted. the object behind the new act is to balance the interest of the landlord and the tenants and to stimulate the future construction in the light of the economic reforms. in this regard, reference was made to economic administration reforms commission and the national commission on urbanisation, which commissions have recommended reform of the rent legislation in a way to balance the interest of both landlord and the tenant. in the light of the said object, if the provisions of the act are looked into, they make it clear that, the landlords rights are not rigid or restrictive, as they were in the repealed act. from the definition of section 3(n), it is clear that, it does not include any other person other than the tenant. definition of tenant read with the provisions of section 5 further makes it clear that, rights of the survivor to inherit the tenancy are also restricted and particularly, if they are not dependent. the maximum period to which the inheritance is permissible is five years from the date of death. section 5 also does not confer inheritance of tenancy for five years if the successors are not dependents or are having the accommodation of their own. on reading of these two provisions, further makes it clear that, the protection intended under the act is limited to tenant only. in this regard, if the provisions of section 27 of the act, which is analogous to section 21 of the krc act, 1961 are considered, it makes it clear that, the landlords right to seek possession is more liberalised and landlord is not required to undergo rigid test of requirement or hardship. furthermore, it is clear from the application of the provisions of the act that, under section 2, sub-section (2) of the act, provisions of the act are not made applicable in respect of non-residential premises having plinth area more than 14 square meters and is also not made applicable to premises to which the standard rent exceeds rs.3,500/- in respect of area mentioned in part a of the first schedule, that means, the protection given to the tenant is also in respect of certain premises and not all. it only shows that, in view of the fast urbanisation and economic growth to make more premises available, the restriction on the landlord has been taken away to encourage more construction to make more buildings available for occupation. section 70 of the act has got three parts viz., section 70, sub-section (2), clause (a), clause (b) and clause (c). the cases and the proceedings coming within the provisions of section 70, sub-section (2), clause (a), they will continue under the repealed act and the provisions of the act are not made applicable. to this extent, the act can be held to be prospective. no doubt, in this case, tenant has died prior to coming into force of the act and the legal representatives had already come on record. if the proceedings are to be continued and disposed of under this act, this act restricts the right of the legal representatives. if the provisions of section 5 are to be understood as not applicable to the tenant, who died prior to coming into force of the act, then, it may result in interpreting the provisions of section 70, sub-section (2), clause (b) of the act as not applicable to the proceedings in which the legal representatives brought on record prior to the act came in force, but this is not the intention of the legislation. legislation intended to apply the act is applicable and they have to be proceeded only in accordance with the provisions of the act. when there is a specific requirement to proceed with the case under the provisions of the act, no other meaning could be attached, which otherwise would defeat the very purpose of making the act applicable. plain meaning of the provisions of section 70 of the act and considering the intention of the legislation, to bring about the changes makes it clear that, the provisions of the act in toto are applicable to all the pending cases to which the act is applicable, as such, the provisions of section 5 are also applicable in case, merely because the tenant had died before the act came into force, that does not by itself confer a special status on the legal representatives other than what is provided under the provisions of the act. it cannot be held that, for one purpose, old act is not applicable and for the remaining, the new provisions of the act to the cases and proceedings to which the act is applicable. grammatical interpretation: if the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will give effect to the purpose will be put on the words, if necessary, even by modification of the language used. however, if any provision of the legislation is unambiguous and clear, the plain and normal grammatical meaning could be derived from words used therein, it does not require any interpretation and the provisions have to be understood in terms of the plain meaning of the words. - according to me, there is a good deal of force in this contention. in a situation like this, in an appropriate case, the jmfc can entertain a complaint and examine on merits to find out as to whether he should issue process to others also not sent up by the police in their final report.ordervenkatesh, j.1. in this petition filed under section 397 r/w. s. 401 cr. p.c., the challenge is to an order made by the jmfc, ron, on 4-12-82 in c.c. 658/82 on his file issuing process to the petitioner for an offence under section 302 r/w. 109 ipc.2. in order to appreciate the contentions raised by the petitioner in the matter, a few facts which are not in dispute may be stated :the proceeding in the court below in c.c. 658/82 was initiated by the first respondent mallanagouda by filing a complaint therein under section 200 cr. p.c. (code). hiscase was that 4 persons mentioned in his complaint as accused 1 to 4 had during the night between 13th and 14th of march 1982 at arahunshi, taluk ron of district dharwad assaulted shantavva and basanagouda and that due to that assault shantavva had sustained injuries and basanagouda had died: that they had done so at the instance of the 5th accused kedargouda (petitioner herein): that, the ron police who had registered a case for these offences, afterinvestigation, had placed their final report in the court showing only the first four as the accused and omitted the 5th accused; that therefore he had preferred this complaintdirectly to the court so that the court may take cognizance of the offence against the 5th accused also and further proceed in the matter.3. the j.m.f.c. taking cognizance of this complaint under section 200 of the code recorded the swornstatements of the complainant mallanagouda and 3 others, kamalavva, shantavva and appanna. on examination of that material, and, being of opinion that there was sufficient ground to proceed against the 5th accused (the petitioner herein) also in the case, issued process on 4-12-1982 to him for the aforesaid offence.4. it may be relevant to note that by then (by 4-12-1982), having taken cognizance of the offences in question on the charge sheet placed by the ron police against the first 4 accused, he had held an enquiry and committed those accused to the court of session, exercising his powers under section 209 of the code.5. challenging the order dated 4-12-1982 issuing process to the petitioner it was argued by his learned counsel that in view of section 319 of the code the court below ought not to have entertained the complaint, held an enquiry and issued process to the petitioner. elaborating his submission what he contends is that it would be open to the court of session, if it appears to it during the trial of the case from the evidence that this petitioner also had a hand in thecommission of that offence to proceed against and try him along with the other accused who are already before him. he further argued that since the sessions court has also already taken cognizance of the offence in question u/s. 193 of the code, the jmfc had no powers to entertain this complaint and proceed in this way. on the other hand, it was argued by the learned state public prosecutor that the power vested with the jmfc under section 190 of the code to take cognizance of the offence and to entertain a complaint under section 200 thereof and to proceed with the enquiry has not been taken away by the court merely because section 319 of the code enables the court of session also to proceed against the person named not an accused. he conceded relying upon a decision in mahant amar nath -v.- state of haryana and another, : 1983crilj433 that in an appropriate case the sessions court can take recourse to section 319 also. however, he argues, that the power vesting with the magistrate of probing into a private complaint to find out as to whether in respect of an offence process is at all to be issued, and, if so, against whom all, cannot be said to have been in any manner affected either by 319 of the code or by any of the otherprovisions. according to me, there is a good deal of force in this contention. in a situation like this, in an appropriate case, the jmfc can entertain a complaint and examine on merits to find out as to whether he should issue process to others also not sent up by the police in their final report.6. another submission made by the learned counsel for the petitioner may also be noted. he argued that in issuing process to his client the learned magistrate had not complied with the requirements of the relevant pro-visions contained in chapter xv of the code. in this connection he drew my attention to a decision of this court in ramanatha & anr. -v.- state & ors., 1984(2) klj 126 it is true that in ramanatha this court has observed that a court on receipt of a complaint involving an offence exclusively triable by a court of session may have to examine all the witnesses before deciding as to whether process at all has to be issued to the persons concerned. that was a case in which the jmfc concerned had for the first time taken cognizance of the offences alleged on the basis of the com-plaint in question. the court takes cognizance of the offences and not of the offenders. before issuing process, the court will have to see as to whether there is a prima facie case in re: the alleged offence and, if so, process is to be issued. in the instant case the court below, as already stated, had taken cognizance of the offences in question on the final report submitted by the police earlier to this complaint. the only question that was required to be examined by the learned magistrate in the matter of this complaint was as to whether process was required to be issued to the petitioner also. it is from this angle and to examine this limited question the learned magistrate, using his discretion, had chosen to examine some of the important witnesses and this he appears to have done exercising his powers under section 202 of the code. in these circum-stances, this case being distinguishable on facts from the case in ramanatha and another, the ratio enunciated therein that the court should examine all the witnesses will not apply and it is sufficient if he examines a few important witnesses. since that is complied with in this case nothing else is required to be done.7. clarifying the interim stay issued by this court, in this proceeding it is made clear that since the court below had passed an order committing the accused to the court of session by the time the stay was communicated to it, the said stay order has become infructuous.8. for reasons stated above, i am not inclined to interfere with the order of the learned magistrate impugned herein. accordingly, this petition is dismissed.

Judgment:
ORDER

Venkatesh, J.

1. In this petition filed Under Section 397 r/w. S. 401 Cr. P.C., the challenge is to an order made by the JMFC, Ron, on 4-12-82 in C.C. 658/82 on his file issuing process to the petitioner for an offence under Section 302 r/w. 109 IPC.

2. In order to appreciate the contentions raised by the petitioner in the matter, a few facts which are not in dispute may be stated :

The proceeding in the Court below in C.C. 658/82 was initiated by the first respondent Mallanagouda by filing a complaint therein under Section 200 Cr. P.C. (Code). Hiscase was that 4 persons mentioned in his complaint as Accused 1 to 4 had during the night between 13th and 14th of March 1982 at Arahunshi, Taluk Ron of District Dharwad assaulted Shantavva and Basanagouda and that due to that assault Shantavva had sustained injuries and Basanagouda had died: that they had done so at the instance of the 5th accused Kedargouda (petitioner herein): that, the Ron police who had registered a case for these offences, afterinvestigation, had placed their final report in the Court showing only the first four as the accused and omitted the 5th accused; that therefore he had preferred this complaintdirectly to the Court so that the Court may take cognizance of the offence against the 5th accused also and further proceed in the matter.

3. The J.M.F.C. taking cognizance of this complaint under Section 200 of the Code recorded the swornstatements of the complainant Mallanagouda and 3 others, Kamalavva, Shantavva and Appanna. On examination of that material, and, being of opinion that there was sufficient ground to proceed against the 5th accused (the petitioner herein) also in the case, issued process on 4-12-1982 to him for the aforesaid offence.

4. It may be relevant to note that by then (by 4-12-1982), having taken cognizance of the offences in question on the charge sheet placed by the Ron police against the first 4 accused, he had held an enquiry and committed those accused to the Court of Session, exercising his powers under Section 209 of the Code.

5. Challenging the order dated 4-12-1982 issuing process to the petitioner it was argued by his Learned Counsel that in view of Section 319 of the Code the Court below ought not to have entertained the complaint, held an enquiry and issued process to the petitioner. Elaborating his submission what he contends is that it would be open to the Court of Session, if it appears to it during the Trial of the case from the evidence that this petitioner also had a hand in thecommission of that offence to proceed against and try him along with the other accused who are already before him. He further argued that since the Sessions Court has also already taken cognizance of the offence in question U/s. 193 of the Code, the JMFC had no powers to entertain this complaint and proceed in this way. On the other hand, it was argued by the Learned State Public Prosecutor that the power vested with the JMFC under Section 190 of the Code to take cognizance of the offence and to entertain a complaint under Section 200 thereof and to proceed with the enquiry has not been taken away by the Court merely because Section 319 of the Code enables the Court of Session also to proceed against the person named not an accused. He conceded relying upon a decision in Mahant Amar Nath -v.- State of Haryana and another, : 1983CriLJ433 that in an appropriate case the Sessions Court can take recourse to Section 319 also. However, he argues, that the power vesting with the Magistrate of probing into a private complaint to find out as to whether in respect of an offence process is at all to be issued, and, if so, against whom all, cannot be said to have been in any manner affected either by 319 of the Code or by any of the otherprovisions. According to me, there is a good deal of force in this contention. In a situation like this, in an appropriate case, the JMFC can entertain a complaint and examine on merits to find out as to whether he should issue process to others also not sent up by the police in their final report.

6. Another submission made by the Learned Counsel for the petitioner may also be noted. He argued that in issuing process to his client the Learned Magistrate had not complied with the requirements of the relevant pro-visions contained in Chapter XV of the Code. In this connection he drew my attention to a decision of this Court in Ramanatha & Anr. -v.- State & Ors., 1984(2) KLJ 126 It is true that in Ramanatha this Court has observed that a Court on receipt of a complaint involving an offence exclusively triable by a Court of Session may have to examine all the witnesses before deciding as to whether process at all has to be issued to the persons concerned. That was a case in which the JMFC concerned had for the first time taken cognizance of the offences alleged on the basis of the com-plaint in question. The Court takes cognizance of the offences and not of the offenders. Before issuing process, the Court will have to see as to whether there is a prima facie case in re: the alleged offence and, if so, process is to be issued. In the instant case the Court below, as already stated, had taken cognizance of the offences in question on the final report submitted by the police earlier to this complaint. The only question that was required to be examined by the Learned Magistrate in the matter of this complaint was as to whether process was required to be issued to the petitioner also. It is from this angle and to examine this limited question the Learned Magistrate, using his discretion, had chosen to examine some of the important witnesses and this he appears to have done exercising his powers under Section 202 of the Code. In these circum-stances, this case being distinguishable on facts from the case in Ramanatha and another, the ratio enunciated therein that the Court should examine all the witnesses will not apply and it is sufficient if he examines a few important witnesses. Since that is complied with in this case nothing else is required to be done.

7. Clarifying the interim stay issued by this Court, in this proceeding it is made clear that since the Court below had passed an order committing the accused to the Court of Session by the time the stay was communicated to it, the said stay order has become infructuous.

8. For reasons stated above, I am not inclined to interfere with the order of the Learned Magistrate impugned herein. Accordingly, this Petition is dismissed.