IMPORTANT POINT
The main legal point established in the judgment is that the Magistrate's order can be typed and signed, witness statements need not be recorded at the time of filing a complaint, and the delay in taking cognizance is to be excluded from the limitation period.

ORDER :

1. The respondent filed a private complaint under Section 200 of Cr.P.C. read with Section 499 IPC. Cognizance having been taken, criminal process having been issued in C.C.No.1524/2017 by the II Additional Chief Metropolitan Magistrate, Bengaluru, challenging the same the petitioner is before this Court seeking for the following reliefs:

To quash the entire proceedings in C.C.No.1524 of 2017 in the court of II Additional Chief Metropolitan Magistrate, Bengaluru, to meet the ends of justice.

2. Sri.S.G.Bhagavan, learned counsel for the petitioner would submit that:

2.1. Firstly, that in terms of Rule 1 of Chapter VII of the Criminal Rules of Practice, a Magistrate is required to record the order sheet in his own handwriting. In the present case, the same having been typed, the order of cognizance is bad in law and is required to be quashed.

2.2. Secondly, that the initiation of criminal proceedings by way of issuance of summons is required to be exercised with circumspection and should not be resorted to unless there is exfacie criminal case made out. In this regard, he relies upon the decision of the Hon’ble Supreme Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, 2015 4 SCC 609 more particularly Para 48 thereof, which is reproduced hereunder for easy reference:

48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.

2.3. He further relies on the decision of the Hon’ble Supreme Court in the case of Mr. Behram Bomanji Dubash and Others vs The State of Karnataka, 2010 Criminal Law Journal 3963 more particularly Para 28 thereof which is reproduced for easy reference:

28. On perusal of the certified copy of the order sheet maintained by the Magistrate in C.C. No. 20672/2003 indicates that after the IO submitted the fresh charge sheet, on 20.12.2003 the office placed the same before the Learned Magistrate with an office note and the Learned Magistrate passed the order thereon. The notings in the order sheet reads as under:

“20.12.03. Charge sheet filed by the A.C.P. of police C.C.B.F. & M (J.P. Nagar P.S.) Through senior A.P.P. as against the accused for an offence punishable under Section. 418-420 r/w 34 IPC.

Original F.I.R. in Cr. No. 633/99 and complaint, charge sheet and connected papers are hereby checked.

A-1 is on anticipatory bail of Sessions Court 9th.

A-2 is on bail of 5th ACMM.

Accused 3 and 7 are on police bail.

A.5, 6 and 8, 9 are absconding.

Accused copy enclosed.

For Order

Perused the records. Cognizance of the offence is taken. Register the case and issue S.S. to A-1, 2, 3 and 7, and Issue N.B.W. to A-5, 6 and 8, 9. Call on 8.1.2004.”

2.4. On merits of the matter, he submits that the only allegation which has been levelled against the petitioner is that the petitioner has called the respondent a rowdy sheeter in a general meeting of the Bangalore Club, the same being the truth of the matter cannot amount to defamation.

2.5. There is no statement made in the PCR that due to the statement made by the petitioner, the reputation of the respondent has suffered damage. There is no name of the witnesses mentioned in the PCR. Cognizance could therefore not have been taken, when there is no such statement made in the PCR. In this regard, he refers to and relies upon Explanation 4 to Section 499 of IPC. The said section 499 is reproduced hereu