V.S. Joshi and anr. Vs. N.G. Bhat Chitrigi and anr. - Court Judgment

Excerpt:
code of criminal procedure, 1973 - sections 200, 204,482- complaint-cognizance of-quashing of complaint -non mentioning in the order sheet while proceeding to record sworn statement of the witnesses, that cognizance is taken-whether fatal-should proceedings be quashed under section 482 of crpc on such technical grounds-held- the magistrate need not specifically state in his order that he has taken cognizance of the offences. taking of cognizance by the magistrate can be inferred from the facts and other material on record. the very fact that the court below has decided to record the sworn statements after perusing the complaint itself would mean that magistrate has applied his mind and has taken cognizance of the offences at the initial stage itself. hence, it can be safely said that the magistrate has applied his mind and thereafter, recorded the sworn statements of the witnesses. thus, the subsequent observation of the learned magistrate at the time of passing the aforesaid order that the cognizance taken becomes redundant and shall have to ignored. even otherwise, it may amount to taking cognizance or applying mind to the facts of the case for the second time, at the time of passing of impugned order and the same is not barred. hence the same cannot be said to be illegal. moreover, the order of issuing process cannot be set aside merely on such hypertechnical ground. added to it, no prejudice is caused to the petitioners by non mentioning in the order sheet while proceeding to record sworn statements of the witnesses, that the cognizance is taken. it is not a mandate of law that the magistrate should mention that he has taken cognizance of the offence, before recording sworn statement.; criminal petition dismissed. - motor vehicles act (59 of 1988)section 147(1)(b)(i): [n.k.patil,j] third party risk - extent of liability in respect of gratuitous passengers traveling in lorry held, insurers liability does not extend to such passengers. hence award passed by tribunal directing insurance company to pay compensation to claimants, with liberty to recover amount paid by it from owner of offending vehicle, cannot be sustained, and is liable to be set aside. it is open to claimants to recover amount from owner of offending vehicle. ordermohan shantanagoudar, j.1. petitioners being the accused in private complaint no. 31/2003, have sought for quashing the proceedings pending on the file of i addl. j.m.f.c, sirsi.2. the learned magistrate has issued process against the petitioners for the offences punishable under sections 323, 504, 506 r/w. section 34 of ipc. respondent no. 1 is the complainant who is advocate by profession. accused are officials of revenue department. the complaint and the sworn statement of the complainant prima facie disclose that he went to the office of the accused on 20.1.2003 at 5.00 p.m. to enquire about the supply of certified copy of record of rights of the property pertaining to his client. the accused, instead of reasonably and properly responding to the complainant about the supply of the copies of fresh record of rights, started abusing the complainant. it is alleged that the accused has uttered the following words against the complainant.thereafter, the complainant was pulled out of the office by the accused. based on the said complaint and the sworn statement, the trial court has issued process against the petitioners for the aforesaid offences.3. learned counsel for the petitioners submits that as the petitioners are public servants, the complainant should have obtained sanction prior to lodging of the complaint, as required under section 197 of cr.p.c. secondly, he submits that as the cognizance is taken after recording the sworn statements, the proceedings vitiate.4. the aforementioned utterances of the accused in public not only tarnishes the entire class of advocates, but also the civil judge concerned. the act of making such utterances will not fall within the purview of the official duty of public servants. it is not possible to accept the contention of learned counsel for the petitioners that the aforesaid utterances by the petitioners are connected with the discharge of the petitioners' official duty. calling the respondent-advocate as mischievous and causing aspersions on the judicial officers cannot even remotely be said to be connected with the discharged of official duty of the petitioners. in this case, there is no reasonable connection between the act in question and the discharge of official duty. filthy abuses allegedly made by the petitioners, if proved, would amount to offence. hence, such act of the petitioners can never be an official duty. hence, the complainant need not obtain sanction by the concerned authority to prosecute the accused, in such cases.5. the operative portion after order of court below reads thus:

Judgment:
ORDER

Mohan Shantanagoudar, J.

1. Petitioners being the accused in Private Complaint No. 31/2003, have sought for quashing the proceedings pending on the file of I Addl. J.M.F.C, Sirsi.

2. The Learned Magistrate has issued process against the petitioners for the offences punishable under Sections 323, 504, 506 r/w. Section 34 of IPC. Respondent No. 1 is the complainant who is advocate by profession. Accused are officials of revenue department. The complaint and the sworn statement of the complainant prima facie disclose that he went to the office of the accused on 20.1.2003 at 5.00 p.m. to enquire about the supply of certified copy of record of rights of the property pertaining to his client. The accused, instead of reasonably and properly responding to the complainant about the supply of the copies of fresh record of rights, started abusing the complainant. It is alleged that the accused has uttered the following words against the complainant.

Thereafter, the complainant was pulled out of the office by the accused. Based on the said complaint and the sworn statement, the Trial Court has issued process against the petitioners for the aforesaid offences.

3. Learned Counsel for the petitioners submits that as the petitioners are public servants, the complainant should have obtained sanction prior to lodging of the complaint, as required under Section 197 of Cr.P.C. Secondly, he submits that as the cognizance is taken after recording the sworn statements, the proceedings vitiate.

4. The aforementioned utterances of the accused in public not only tarnishes the entire class of advocates, but also the Civil Judge concerned. The act of making such utterances will not fall within the purview of the official duty of public servants. It is not possible to accept the contention of Learned Counsel for the petitioners that the aforesaid utterances by the petitioners are connected with the discharge of the petitioners' official duty. Calling the respondent-Advocate as mischievous and causing aspersions on the Judicial Officers cannot even remotely be said to be connected with the discharged of official duty of the petitioners. In this case, there is no reasonable connection between the act in question and the discharge of official duty. Filthy abuses allegedly made by the petitioners, if proved, would amount to offence. Hence, such act of the petitioners can never be an official duty. Hence, the complainant need not obtain sanction by the concerned authority to prosecute the accused, in such cases.

5. The operative portion after order of Court below reads thus: