Kitti Alias Kittaraju And Anr. vs Thammaiah Setty And Anr.

on 30 June, 1967

Karnataka High Court

Kitti Alias Kittaraju And Anr. vs Thammaiah Setty And Anr. on 30 June, 1967
Equivalent citations: AIR 1967 Kant 243, AIR 1967 Mys 243
Bench: B Venkataswami
ORDER
1. This petition is directed against the Order made by the learned Sessions Judge.
Chikmagalur, in Cr. R. P. No. 17 of 1966 on his file, on 24-10-1966. The learned Sessions Judge by
his order has set aside the order of discharge made by the learned Munsiff-Magistrate, Chikmagalur,
in C. C. No. 1008/65. It has also directed that the accused, the present revision petitioners should be
arrested and a fresh enquiry be held in the manner prescribed by law under Section 207-A Cr. P C.
He has further directed that the Magistrate should direct the police concerned to submit a charge
sheet against the concerned accused persons.
2. The facts relevant for the purpose of this application are briefly as follows: One Thammaiah Setty,
a resident of Chikmagalur Town, lodged a complaint against the present revision petitioners namely
Kitti and Jagga, who were also the residents of Chikmagalur Town. The allegations in the said
complaint were that the complainant and the accused were neighbouring cultivators of lands which
were Separated by a road and situated in Khasaba Hobli of Chikmagalur. It was also alleged that
since 7-9-1965 there were differences between them as regards the right to the use of water for
cultivation by the accused.
He has further alleged that on 17-9-1986 his brother Siddappa Setty went to his field at 4 a.m to
attend to some agricultural operation at about 6-30 am, on the same day, one Ameer, a jutka driver,
Informed the complainant that the said Siddappa had been beaten and buried, leaving his face
exposed and covered with thorns and that he should go quickly to the spot. On arriving at the spot
along with others, he found Siddappa in the posture described by Ameer He further alleges that he
complained to the police and that a police officer came to the spot and removed Siddappa to the
hospital He also complained that no further action was taken by the police. That way the reason for
his approaching the Court on 21-9 1965 the date on which the complaint petition was presented by
Mm.
3. The learned Magistrate recorded the sworn statement of the complainant on 21-9-1965. It is
relevant to set out the sworn statement as much of the argument addressed at the Bar centred round
the question whether the Magistrate had taken cognizance of the complaint with a view to taking
further action under the Criminal Procedure Code. The statement is as follows:
"The contents of this petition are all true and correct On hearing the words of a Muslim boy I went
with ladles in my family and found my brother buried under earth except for the head which had
been covered by thorns. I removed thorns and portion of mud. People came there and advised me to
inform police After police were informed my brother was taken to hospital. All the people there
removed the mud. Police were examined my brother (sic)".

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Kitti Alias Kittaraju And Anr. vs Thammaiah Setty And Anr. on 30 June, 1967

After recording the said statement, the Magistrate passed the following Order:
"Send the copy of this petition to G. I. Chikmagalur for investigation and report wider Section 168,
Clause (8) Cr. P. C. by 8/10." It is also relevant to observe that no summons were issued to the
accused immediately thereafter. The police after investigation submitted a report on 27-11-1966
along with the case diary. On 7-12-1966, the learned Magistrate made a further Order as follows:
"7-12-66 case called. Complainant in per-son. Take the case on file under Section 307 I.P.C."
Notwithstanding the order made on 7-12-1966, the Magistrate proceeded to enquire into the
complaint under Section 208 Cr P. C., which relates to an enquiry into a proceeding instituted
otherwise than on a police report. After enquiry, he made an order discharging the accused on
19-9-1966.
4. Against this order of discharge, the complainant preferred Criminal Revision Petition No 17 of
196.6 before the learned Sessions Judge at Chlckmagalur. The learned Sessions Judge without going
into the merits of the Order in question, as disclosed by the evidence therein, confined himself to the
question of law arising from the procedure followed by the learned Magistrate in making the enquiry
under Section 208 Cr. P. C. On a detailed discussion of the matter he came to the conclusion that the
Magistrate took cognizance of the matter only on 7-12-1965 on the police report, and as such he
should have proceeded with the enquiry in accordance with the provisions of Section 207-A Cr. P.
C., after directing the police to submit a charge-sheet under Section 173 Cr. P. C. in the result, he set
aside the order of the learned Magistrate and remanded the matter back to him with directions
which have been referred to earlier Against this Order, the present petition has been presented
before this Court by the accused named in the original complaint.
6. The contentions of Sri M. Gopala Krishna Shetty, the learned Counsel for the petitioners are: (1)
that the learned Magistrate took cognizance of the complaint on 21-9-1966 when the complainant
was examined on oath, and not on 7-12-1966 as found by the learned Sessions Judge; (2) that the
consequential order made on 21-9-1865 to the effect that the petition be sent to the Circle Inspector
for investigation and report under Section 156(3) Cr. P. C. was in effect a direction to investigate,
issued by virtue of the power conferred by Section 202 Cr. P. C. In any event reference to Section
156(3) would not make any difference, and does not affect the fact that cognizance of the complaint
was taken only under Section 202, Cr. P. C. (3) in the alternative if this Court were to set aside the
order in revision made by the learned Sessions Judge, the Order of discharge passed by the learned
Magistrate should be allowed to it and. It is not a case in which this Court should exercise its powers
of revision under Section 436. Cr. P, C.
6. In elaboration of his contention that the learned Magistrate took cognizance of the case actually
on 21-6-1966 when the complainant's sworn statement was recorded by him. the learned Counsel
for the petitioners relies on a case , Jamuna Singh v. Bhadai Shah. The Supreme Court has observed
in the said case as follows:
"In the case before us the Magistrate after receipt of Bhadai Shah's complaint proceeded to examine
him under Section 200 of the Code of Criminal Procedure. That section itself states that the
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Kitti Alias Kittaraju And Anr. vs Thammaiah Setty And Anr. on 30 June, 1967

Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant
and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200
of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of
the offences mentioned in the complaint. After completing such examination and recording the
substance of it to writing as required by Section 200 the Magistrate could have issued process at
once under Section 204 of the Code of Criminal Procedure or could have dismissed the complaint
under Section 203 of the Code of Criminal Procedure. It was also on to him, before taking either of
these courses, to take action under Section 202 of the Code of Criminal Procedure. That section
empowers the Magistrate to "postpone the issue of process for compelling the attendance of person
complained against, and either enquire into the case himself or If he is a Magistrate other than a
Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate
subordinate to him. or by a police officer, or by such other person as he thinks fit, for the purpose of
ascertaining the truth or falsehood of the complaint."
In the same judgment it is further observed as follows:
"We find that in the case before us the Magistrate after completing the examination under Section
200 of the Code of Criminal Procedure and recording the substance of it made the order in these
words:
Examined the complaint on s.a. The offence is cognizable one. To S. I. Balkunthpur for inslituting a
case and report by 12-12-56'.
If the learned Magistrate had used the words "for investigation" instead of the words "for instituting
a case" the order would clearly be under Section 202 of the Code of Criminal Procedure. We do not
think that the fact that he used the words "for instituting a case" makes any difference It has to be
noticed that the Magistrate was not bound to lake cognizance of the offences on receipt of the
complaint. He could have, without taking cognizance, directed an investigation of the case by the
police under Section 156(3) of the Code of Criminal Procedure Once however he look cognizance he
could order investigation by the police only under Section 202 of the Code of Criminal procedure
and not under Section 156(3) of the Code of Criminal Procedure. As It Is clear here from the very
fact that be took action under Section 200 of the Code of Criminal Procedure, that he had taken
cognizance of the offences mentioned in the complaint, it was open to him to order investigation
only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code
It would be proper in these circumstances to hold that though the Magistrate used the words "for
instituting a case" in this order of November 22, 1956, he was actually taking action under Section
202 of the Code of Criminal Procedure, that being the only section under which he was, in law
entitled to act"
It is clear from the above observations of the Supreme Court that once a complainant is examined
under Section 200 Cr. P. C. if would amount to taking cognizance of the offence mentioned in the
complaint. It is further made clear that once such cognizance is taken, if the Magistrate desires to
postpone the issue of process for compelling the attendance of persons complained against he could
act only under Section 202 Cr P C
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Kitti Alias Kittaraju And Anr. vs Thammaiah Setty And Anr. on 30 June, 1967

7. If the facts of the present case are examined, it will be seen that there is no escape from the
conclusion that the Magistrate took cognizance on 21-9-1965, the date on which the complainant's
sworn statement was recorded.
7A. It was contended on behalf of the State and the complainant, who is also heard in the matter,
that the only effective order which gives an indication as to the mind of the Magistrate was the one
made directing the complaint to be forwarded to the Police for investigation under Section 156(3). It
was contended that in view of this direction for investigation, the Magistrate had really not intended
to proceed under Chapter XVI Cr P C This argument, according to the complainant, derives further
support from the second order passed on 7-12-1965 taking the case on file under Section 307 I. P C.
after the perusal of the police report submitted in compliance with the direction issued on 21-9-1965
by the learned Magistrate in view of the conclusion arrived al earlier that the learned Magistrate
look cognizance on 21-9 1965 itself, there cannot be a second order of taking cognizance in the
matter. In , it is stated thus:
"Cognizance having already been taken by the Magistrate before he made the order there was no
scope of cognizance being taken afresh of the same offence after the notice officer's report was
received."
Hence the contention of the respondent in this regard cannot be accepted
8. Sri Narayanappa, the learned Assistant State Public Prosecutor, tried to distinguish this case on
the ground that the facts therein were different inasmuch as while making a direction to investigate,
Section 150 (3) was not mentioned by the learned Magistrate in the said case. It makes no difference
whether the provision of law is mentioned at all or rightly or wrongly mentioned All the same, once
a Magistrate takes cognizance in the matter be could only proceed under Section 202 Cr. P C., if he
thinks of postponing the issue of process to the person complained against. This is also clear from
the observations of the Supreme Court extracted earlier This Court, in two cases reported in K B.
Subbiah Shelly v. M. Surendra Ran. (1966) 2 Mys LJ 74 and B M. Santhuramasa v. State of Mysore.
(1966) 2 Mys LJ 89 following the decision of the Supreme Court in . affirmed the principle
enunciated above.
8A. If the Magistrate had taken cognizance on 21-9-1965. he had no alternative but to proceed to
ennui re into the matter under Section 208 Cr P C. which prescribes the procedure for an enquiry in
a proceeding instituted otherwise than on a police report. Hence, there is no question of Magistrate
being required to follow the procedure prescribed under Section 207A, Cr. P C. as directed by the
learned Sessions Judge in his Order
9. In the light of the aforesaid discussion. I am of the opinion that the Order of the learned Sessions
Judge made in Cr R. P. No. 17/66 requires to be set aside I order accordingly.
10. Sri S. R. Ramanathan, the learned Counsel appearing for the complainant, strenuousty
contended that the learned Magistrate has exceeded the limits of the judicial discretion vested in
him. in the matter of appreciating the evidence under Section 209 Cr P. C. He contended that the
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Kitti Alias Kittaraju And Anr. vs Thammaiah Setty And Anr. on 30 June, 1967

learned Magistrate had taken upon himself the functions of a trial Judge and appreciated the
evidence as though, there was no other view possible on the evidence adduced in this case He relied
on a case re-ported in K. P. Raghavan v. M. H. Abbas. in support of his proposition that the learned
Magistrate's order does not satisfy the requirements of the tests for discharging the accused under
Section 209. Cr P C There appears to be some force in the contention of Sri Ramanatham Sri Gopala
Krishna Shelty, the learned Counsel for the petitioners receiving on a decision reported in Thakur
Ram v. State of Bibar. submitted that having regard to the facts and circumstances of the case and
the lime that has elapsed since the lodging of the complaint and invited this Court to look into the
Order as a whole in order to see whether a case for interference under Section 436 Cr P. C. had been
made out He further contend ed that even on the facts disclosed and assuming them to have been
proved, it could never fell under Section 307 I. P. C. He also submitted that in any event it would fall
under sections relating to some of the minor offences for assault and hurt which are triable by the
Magistrate himself. On this assumption, he proceeded to argue that the Magistrate was entitled to
appreciate the evidence as he had done by virtue of the provisions of Section 253 Cr. P. C. which
provision would be attracted to the case in case the Magistrate had thought of proceeding to frame
charges which are triable by himself by following the procedure prescribed under Section 262 Cr. P.
C., which prescribed for enquiry in a case instituted otherwise than on a police report.
11. In view of the above submissions, the learned counsel at the Bar were requested to go through
the entire evidence on record, and also the Order of the learned Magistrate On a careful perusal of
the Order and the evidence let in, it is not possible to come to the conclusion that an offence under
Section 307 I. P C had been made out. The evidence of the Doctor and the Deputy Superintendent of
Police, who have been examined as P Ws 7 and 8 respectively, and who are the only disinterested
witnesses in the case- makes it abundantly clear that the victim had not suffered any injuries and
that he was lying in a trench covered with earth to a thickness of Section to 6 inches and that his
face, hands and elbows were completely exposed In these circumstances, the examination of the
evidence by the learned Magistrate cannot be said to have exceeded the jurisdiction vested in him
under Section 253 Cr. P C I am of the opinion that a prima facie case for an offence under Section
307 I. P. C is not made out on the facts alleged and the evidence let in, even after an examination of
the same in the light of the provisions of Section 209 Cr. P C. It is also apparent from the order that
the learned Magistrate has also examined the entire matter from the point of view of finding out
whether any offence which would be triable by himself had been made out Hence, the discussion of
the evidence in the Order is clearly referable to his intention to examine the evidence in exercise of
the powers vested in him under Section 253. Cr P C Section 253. Cr P C prescribes a test as to the
circumstances under which an accused could be discharged It on joins that the accused would be
entitled to a discharge, if on an examination of the evidence and statement of the accused no case
had been made out which if unrebutted, would warrant his conviction This test is wide enough to
vest a discretion in the Magistrate to appreciate the evidence as has been done in the present case
12. No other reason was brought to my notice which impels me in any manner to Interfere with the
order of discharge passed by the learned Magistrate
13. In the result, this revision petition is allowed and the order of the learned Sessions Judge in Cr.
R. P. No 17/86 is set aside. The order of discharge passed by the learned Magistrate is restored.
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Kitti Alias Kittaraju And Anr. vs Thammaiah Setty And Anr. on 30 June, 1967

14. Petition allowed.

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