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TMI Blog2022 (11) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent herein has filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act. Upon filing the complaint, the learned magistrate posted the matter for recording the sworn statement and after recording the sworn statement, cognizance was taken and issued summons to the petitioner which is against the law. Hence the petitioner is before this Court by challenging the same for quashing the impugned order of cognizance after recording sworn statement. Learned counsel for the petitioner has relied upon the judgment of the Co-ordinate Bench of this Court in the case of State By A. Mahadeva vs. Papireddy reported in ILR 1988 KAR 666. 4. Learned counsel for the petitioner has seriously co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Supreme Court wherein it is held as under: "8. The Supreme Court also in GOPAL DAS SINDHI AND OTHERS v. STATE OF ASSAM AND ANOTHER, AIR 1961 SC 986 has stated in para 7 on page 988 as :- "When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station, Gauhati, for investigation. Section 156(3) states "Any Magistrate empowered under Section 190 may order such investigation as above mentioned." Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce for investigation. There is no reason as to why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code." The said Supreme Court decision is an authority for the proposition that if the Magistrate wants to proceed under Section 200 Cr.P.C. he must take cognizance of the offence and after taking cognizance of the offence he must proceed under Section 200 Cr.P.C. and the subsequent Sections." 7. The another Co-ordinate Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n statement. In view of the same, I do not find any reason to interfere in the order passed by the Court below." 8. Based upon the rival citation produced by learned counsel for the petitioner, it is a well settled process of law that the Magistrate has to take the cognizance and post the matter for recording the statement of the complainant and thereafter, proceed to issue notices. The Hon'ble Co-ordinate Bench of this Court in the case of V.S. Joshi stated supra, wherein, it is categorically stated that when the Magistrate posted the matter for recording the statement without mentioning the word as taking cognizance, it cannot be said that the Magistrate has not applied the mind and thereafter, taking cognizance for second time is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int, affidavit and list of documents are furnished. Returnable by 26.08.2019." 9. On careful reading of the order passed by the Magistrate on filing of the complaint, he has already put up the records by registering the PCR, thereafter in the paragraph No. 1, it is stated the fact of the case and where in this case, when sworn affidavit also filed along with the complaint, it is considered as a sworn statement recording and also evidence of the complainant by way of affidavit and thereafter, taking the cognizance. Of course in the first paragraph, the learned Magistrate has not stated that he has taken the cognizance and thereafter posted the matter for recording the statement. But this statement along with the complaint both of them we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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