1987 (11) TMI 403 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the Magistrate took cognizance of the offence before recording the sworn statements of the complainant and his witnesses.
2. Validity of the subsequent proceedings and the order of issuing process.
3. Misdescription of the revision petitioner.
4. Other contentions raised by the State Public Prosecutor, including the want of sanction under Section 197 Cr.P.C.

Issue-wise Detailed Analysis:

1. Whether the Magistrate took cognizance of the offence before recording the sworn statements of the complainant and his witnesses:
The primary issue in this case revolves around the procedural requirement under Section 200 Cr.P.C., which mandates that a Magistrate must take cognizance of an offence before recording the sworn statements of the complainant and his witnesses. The complainant alleged that the accused, Mahadevaiah, committed offences under Sections 499, 500, and 510 of the I.P.C. The complaint was filed on 4-7-1987, and the Magistrate issued process against the accused after recording the sworn statements of the complainant and two witnesses. The State Public Prosecutor contended that the Magistrate did not take cognizance of the offences before recording the sworn statements, rendering the subsequent proceedings void and bad at law. The judgment emphasized that the stage of taking cognizance must precede the act of recording sworn statements, as supported by precedents such as *Revanappa and Another v. S.N. Raghunath* and *Gopal Das Sindhi and Others v. State of Assam and Another*. The Court concluded that the Magistrate did not apply his mind to the allegations before recording the sworn statements, thereby failing to take cognizance as required by law.

2. Validity of the subsequent proceedings and the order of issuing process:
The judgment clarified that taking cognizance of an offence is a prerequisite for recording sworn statements under Section 200 Cr.P.C. The Magistrate's failure to take cognizance before recording the sworn statements rendered the subsequent proceedings, including the order of issuing process, invalid. The Court noted that the endorsement in the order sheet indicated that the Magistrate did not take cognizance before proceeding to record the sworn statements. Consequently, the order of issuing process was quashed due to non-compliance with Sections 190 and 200 Cr.P.C. The Court emphasized that cognizance of an offence can only be taken once and must precede the recording of sworn statements.

3. Misdescription of the revision petitioner:
The revision was filed with the petitioner described as "State by A. Mahadeva, Assistant Commissioner and Sub-Divisional Magistrate, Chickballapur Sub Division, Kolar District." The Court observed that the complaint was filed against Mahadevaiah in his personal capacity, not against the State or in his capacity as a public servant. Therefore, Mahadevaiah should have been the revision petitioner. The Court noted that the State's involvement in the revision was inappropriate and should have been left to Mahadevaiah alone.

4. Other contentions raised by the State Public Prosecutor, including the want of sanction under Section 197 Cr.P.C.:
The Court did not address other contentions raised by the State Public Prosecutor, such as the requirement of sanction under Section 197 Cr.P.C., as the case was disposed of on the technical ground of non-compliance with Sections 190 and 200 Cr.P.C. These contentions were kept open for consideration in future proceedings.

Conclusion:
The order passed by the Magistrate was set aside, and the revision was allowed. The matter was remanded to the Magistrate for fresh disposal in accordance with the law, with specific directions to first consider whether to take cognizance of the offence and, if so, to record the sworn statements of the complainant and his witnesses afresh before proceeding further.