2021 Supreme(Kar) 462

IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
H.P.SANDESH, J.
MOSEEN S/O ANNIS SHAIKH - Appellant
Vs.
THE STATE OF KARNATAKA REPRESENTED BY ADDL. SPP HIGH COURT OF KARNATAKA KALABURAGI BENCH - Respondent
CRIMINAL PETITION No.201236/2021
Decided On : 10-12-2021

Point of law: Court can postpone the issue of process

Headnote:

Criminal Procedural Code, 1973 - Section 482, 340(3)(b), 202(1), 340, 439, 201, 202, 195(1)(b)(i), 340(3) – Indian Penal Code, 1860 - Sections 209 and 417 – Punishment for cheating - Dishonestly making false claim in court - Respondent herein is complainant who is in-charge Chief Administrative Officer of District Court, had filed complaint against petitioner herein who is accused in S.C wherein complainant had alleged that petitioner had approached High Court of Karnataka for grant of bail in Criminal Petition and that, Court has rejected bail petition with an observation that petitioner shall not be entitled to bail till trial is concluded before Sessions Court - Despite of said order, petitioner, by suppressing said observation, approached Judge, for grant of bail and that bail application was allowed and thereby, he was released on bail - Hence, allegation against petitioner is that he has suppressed order passed by Court and same is nothing but playing fraud on Court and same amounts to interference in administration of justice - Whether there was no authorization to file complaint as envisaged under Section 340(3)(b) of Cr.P.C - Whether taking of cognizance and subsequently holding of enquiry under Section 202(1) of Cr.P.C., vitiates proceedings initiated against petitioner herein - Whether or not there is sufficient ground for proceeding - Whether accused/petitioner is residing within jurisdiction of Court - Whether same vitiates issuance of process after taking cognizance - Whether accused/petitioner herein is residing within jurisdiction of Court-

Finding of the Court:

Court would like to refer to Section 202(1) of Cr.P.C. Section 202(1) of Cr.P.C., envisages that any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, may postpone issue of process against accused, and either inquire into case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for purpose of deciding whether or not there is sufficient ground for proceeding - Court also would like to refer to Section 201 of Cr.P.C. which envisages procedure by Magistrate not competent to take cognizance of the case - If complaint is made to a Magistrate who is not competent to take cognizance of offences, he shall, if complaint is in writing, return it for presentation to proper Court with an endorsement to that effect; and if complaint is not in writing, direct complainant to proper Court - Having read Sections 201 and 202 of Cr.P.C., it is clear that an enquiry has to be held whether accused is residing within jurisdiction of Court in which complaint is filed and if accused is not residing within jurisdiction of Court in which complaint is filed, then enquiry has to be held - Magistrate while passing an order taken note of the contents of complaint and has come to conclusion that prima facie appears that accused has committed offences punishable under Sections 209 and 417 of IPC and also while exercising power has come to conclusion that Section 195(1)(b)(i) of Cr.P.C., is complied and further comes to conclusion that complainant has been authorized in writing by I-Additional Sessions Judge, Section 340(3) of Cr.P.C., is also complied and found prima facie offences are punishable under Sections 209 and 417 of IPC - It is not in dispute that the petitioner is residing within the jurisdiction of II-Additional Civil Judge - However, in order Magistrate has taken note of Section 202(1) of Cr.P.C., in order to verify whether accused/petitioner is residing within jurisdiction of the Court and compliance of Section 202(1) of Cr.P.C., is necessary - As a matter of caution, Magistrate postponed issue of process - For enquiry, dates are given and subsequently, vide order, after enquiring Chief Administrative Officer under Section 202(1) of Cr.P.C., issued process - As cognizance was taken vide order and as an abundant caution, for compliance of Section 202(1) of Cr.P.C., matter was postponed for issue of process - Hence, said order is also in compliance Section 202(1) of Cr.P.C. - Contention of counsel for petitioner is that once cognizance was taken, Magistrate ought not to have invoked Section 202(1) of Cr.P.C - Question before Court is whether same vitiates issuance of process after taking cognizance - Section 202(1) of Cr.P.C., makes it clear that Court can postpone issue of process - Magistrate though taken cognizance, postponed issuance of process for compliance of Section 202(1) of Cr.P.C. and hence, very contention of counsel that it amounts to illegality and it vitiates proceedings cannot be accepted and it is only procedural irregularity - Magistrate has complied Section 202(1) of Cr.P.C., before issuance of process. proviso to Section 202 of Cr.P.C., enables Magistrate postponement of issuance of process - Hence, do not find any force in contention of counsel for petitioner that it vitiates proceedings, at the most, it is only a procedural irregularity and procedural irregularity will not vitiate proceedings of issuance of process against petitioner.

Result: Petition dismissed