M.C.Kumar vs The State Of Karnataka
2021 Latest Caselaw 1956 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU        R
            DATED THIS THE 24TH DAY OF MAY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.5293/2020

BETWEEN:

1.     M.C. KUMAR,
       S/O LATE M. CHINNAPPA,
       AGED ABOUT 70 YEARS,
       MEPHERSON ROAD,
       COOKE TOWN, BENGALURU - 560 005.

2.     BALAKRISHNA @ BALU,
       S/O LATE M. CHINNAPPA,
       AGED ABOUT 66 YEARS,
       R/AT NO. 33/21,
       THAMBUCHETTI ROAD,
       COX TOWN, BENGALURU - 560 005.

3.     RAKESH,
       S/O M.C. KUMAR,
       AGED ABOUT 42 YEARS,
       MEPHERSON ROAD,
       COOKE TOWN, BENGALURU - 560 005.

4.     SUMANTH BALAKRISHNA,
       S/O BALAKRISHNA,
       AGED ABOUT 35 YEARS,
       R/AT NO.33/21,
       THAMBUCHETTI ROAD,
       COX TOWN, BENGALURU - 560 005.     ... PETITIONERS

           (BY SRI A.N. RADHA KRISHNA, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA,
       BY PULAKESHINAGARA POLICE,
                                   2



      BENGALURU.
      REP. BY THE STATE PUBLIC PROSECUTOR,
      HIGH COURT BUILDINGS,
      BENGALURU - 560 001.

2.    SMT. VENKATAGIRI LAKSHMAMMA
      @ BANGARU,
      W/O LATE BANGARAPPA,
      AGED ABOUT 68 YEARS,
      R/AT NO.60, 1ST CROSS,
      SWAMY VIVEKANANDANAGARA,
      BENGALURU - 560 033.                        ... RESPONDENTS

              (BY SRI H.R. SHOWRI, HCGP FOR R-1;
               SRI K. SATISH, ADVOCATE FOR R-2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 03.07.2018
PASSED BY THE LEARNED XI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU IN C.C.NO.53027/2020 (CR.NO.50/2017
OF    PULAKESHINAGAR      POLICE),   TAKING   COGNIZANCE,
REGISTERING CASE AND ORDERING PROCESS TO THE
PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
427, 448, 143, 147 R/W SECTION 34 OF IPC AND TO QUASH THE
PROCEEDINGS.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.04.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                             ORDER

This petition is filed under Section 482 of Cr.P.C, praying

this Court to set aside the order dated 03.07.2018 passed by the

XI Additional Chief Metropolitan Magistrate, Bengaluru in

C.C.No.53027/2020 taking cognizance, registering case and

ordering process to the petitioners for the offences punishable

under Sections 427, 448, 143, 147 read with Section 34 of IPC

and to quash the entire proceedings.

2. The factual matrix of the case is that respondent

No.2 filed a complaint against the petitioners making the

allegation that on 03.01.2017 these accused persons trespassed

the house, caused damage to the house, threatened her and

thrown out the vessels outside the house and hence she gave

the complaint on the very same day. The police after receiving

the complaint, acknowledged the complaint and again complaint

was given on 22.02.2017 and the police have registered the case

for the above offences and thereafter investigated the matter

and filed the charge-sheet against the petitioners herein. The

learned Magistrate after receiving the complaint, took the

cognizance vide order dated 03.07.2020 and hence the

petitioners are before this Court.

3. The main contention of the petitioners before this

Court is that the maximum punishment for the offences which

have been invoked against the petitioners herein is two years

and hence the learned Magistrate ought not to have taken the

cognizance after three years and hence committed an error in

taking the cognizance. The learned counsel for the petitioners

brought to the notice of this Court the relevant offences and also

Section 468 of Cr.P.C. The learned counsel would contend that

the incident was taken on 03.01.2017 and case was registered

on 22.02.2017 and final report was filed on 30.06.2020 and

cognizance was taken after lapse of three years. Hence, it

requires interference of this Court.

4. The second contention of the learned counsel for the

petitioners is that even on merits also no case has been made

out against the petitioners to subject them for trial. The learned

counsel would contend that the building was in dilapidated

condition and any moment it would have fallen due to rain and

cause danger to respondent No.2. Hence, the same was

narrated to respondent No.2 and respondent No.2 agreed to

vacate the house in the first week of January 2017 and

accordingly she removed all the materials from the house and

voluntarily herself and her son removed the household articles

and after vacating the house, the same was demolished. The

learned counsel would contend that when the complaint was

given on 03.01.2017, petitioner No.1 was secured to the police

station and he gave the reply on 04.01.2017 and the police have

registered NCR and again registered the case against the

petitioners herein on subsequent complaint and hence there

cannot be any criminal prosecution against the petitioners

herein.

5. The learned counsel for the petitioners in support of

his arguments relied upon the judgment of the Apex Court in the

case of STATE OF PUNJAB v. SARWAN SINGH reported in

AIR 1981 SC 1054, wherein the Apex Court comes to the

conclusion that if the offence is punishable for two years, the

Trial Court ought not to have taken the cognizance after three

years. The Apex Court discussed Sections 468(2) and 469 of

Cr.P.C. and comes to the conclusion that the object which the

statute seeks to subserve is clearly in consonance with the

concept of fairness of trial as enshrined in Article 21 of the

Constitution of India and hence the same is barred by limitation.

6. The learned counsel also relied upon the judgment of

this Court in the case of SRI DEENA v. STATE OF KARNATAKA

reported in 1987(1) II Crimes 518, wherein this Court relying

upon the judgment in the case of Sarwan Singh (supra) came

to the conclusion that taking of cognizance is barred by limitation

and no application for condonation of delay is filed by the

prosecution. Any prosecution, whether by the State or the

private complaint must abide by the letter of law as provided

under Section 468 of Cr.P.C. or take the risk of the prosecution

failing on the ground of limitation.

7. The learned counsel also relied upon the judgment of

this Court in the case of VENKAPPA v. REGIONAL

TRANSPORT OFFICER AND ANOTHER reported in 1978(2)

KAR.L.J. 457, wherein this Court had discussed Section 473 of

Cr.P.C. regarding seeking permission to condone the delay.

8. The learned counsel also relied upon the judgment of

this Court in the case of STATE OF KARNATAKA v. VEDAVATI

reported in 1978 CRI.L.J. 1375, wherein this Court held that

condonation of delay, exercise of judicial discretion, delay not to

be condoned as a matter of course and sufficient cause is

essential. No application for condonation of delay, held delay

could not be condoned.

9. Per contra, the learned counsel for respondent No.2

would contend that the offence is a continuous offence and

brought to the notice of this Court Sections 470 and 472 of

Cr.P.C. and contend that no limitation applies as contended by

the learned counsel for the petitioners. The learned counsel

would vehemently contend that the case was registered at the

first instance against accused Nos.1 and 2 and other two

accused who have been arraigned as accused Nos.3 and 4 and

those accused have absconded. The learned counsel would

contend that other two accused have been absconded and while

fling the charge-sheet also the same is shown in the charge-

sheet that those two accused are absconded and sought for

issuance of NBW against them and hence limitation does not

arise.

10. The learned High Court Government Pleader

appearing for respondent No.1 - State would submit that the

complaint is not barred by limitation and the complaint is filed

within the limitation and there is no bar for taking the

cognizance as contended by the learned counsel for the

petitioners. He also reiterated that accused Nos.3 and 4 have

been absconding and the same has been shown in the

absconded column.

11. In reply to the arguments of the learned counsel for

the respondent No.2 and the learned High Court Government

Pleader, the learned counsel for the petitioners would contend

that in the complaint only the name of accused Nos.1 and 2 has

been shown. In the FIR at the time of registration, the case has

been registered against accused Nos.1 and 2 and the other two

accused have been falsely implicated as accused Nos.3 and 4

and there is no substantive material against them.

12. Having heard the learned counsel for the petitioners

and the learned counsel for respondent No.2 and the learned

High Court Government Pleader appearing for respondent No.1,

this Court has to analyze the material on record. It is not in

dispute that an allegation is made in the complaint that on

03.01.2017 the accused persons have trespassed the house of

the complainant and thrown the house vessels and also

household articles and caused damage to the building by using

JCB and caused mischief and also caused life threat. The

learned counsel for the petitioners brought to the notice of this

Court that two complaints are filed, one is dated 03.01.2017 and

another is dated 22.02.2017 and also brought to the notice of

this Court the endorsement issued by the police.

13. Having perused the complaint dated 03.01.2017,

specific allegations are made against accused Nos.1 and 2 that

they suddenly came and caused damage to the house in which

respondent No.2 was residing and abused and threatened her.

On perusal of the complaint dated 03.01.2017, the same has

been received on 03.01.2017 at 17.30 hours and NCR

No.06/2017 was registered. On perusal of the acknowledgment,

which has been relied upon by the learned counsel for the

petitioners, it discloses receiving of the complaint and

registration of NCR and the same is kept pending for enquiry.

No doubt, one more complaint is given on 22.02.2017. The very

same allegations are reiterated and in the said complaint. An

allegation is made that those two accused persons came along

with friends and committed the offence and the said complaint is

registered for the above offence. The learned counsel for the

petitioners does not dispute the fact that on the date of incident

itself complaint was given i.e., on 03.01.2017 and the police

acknowledgement also discloses that the complaint was received

on the same day and NCR was registered and the same is kept

pending for enquiry. When the complaint was received and the

same is pending for enquiry and the subsequent complaint is

dated 22.02.2017, it cannot be contended that there was a delay

in lodging the complaint. It is not in dispute that the charge-

sheet is filed after three years of the registration of the case and

also it is not in dispute that the learned Magistrate has taken the

cognizance. On perusal of the order passed by the learned

Magistrate, it is clear that after receiving the complaint he has

perused the charge-sheet and its enclosures and held that there

are sufficient materials present to proceed against the accused

persons for the offences invoked against them. Hence, the

cognizance is taken and process is issued. Having perused the

order, I do not find any error committed by the learned

Magistrate in taking the cognizance. He has perused the charge-

sheet and its enclosures and found that there are sufficient

materials. Hence, it is clear that he has applied his judicious

mind while issuing process and there cannot be any detailed

order while issuing process.

14. The main fundamental question raised before this

Court by the learned counsel for the petitioners is that taking of

cognizance after three years of the incident is barred by

limitation. The learned counsel for the petitioners relied upon

several judgments in this regard and also it is an admitted fact

that no application is filed under Section 473 of Cr.P.C. for

condonation of delay. This Court would like to refer the

Constitutional Bench judgment of the Apex Court in the case of

SARAH MATHEW v. INSTITUTE OF CARDIO VASCULAR

DISEASES AND OTHERS reported in (2014) 1 SCC (Cri)

721. This judgment is on the point which gives answers to the

contentions of the learned counsel for the petitioners. The Apex

elaborately discussed Sections 468, 469, 470, 473 and Chapter

XXXVI and also Sections 466 to 473 of Cr.P.C. The

Constitutional Bench held that date relevant for computation of

period of limitation is the date when criminal complaint is filed or

date of institution of prosecution/criminal proceedings, and not

the date when a Court/Magistrate takes cognizance. It is also

held that there has to be some amount of certainty or

definiteness in matters of limitation relating to criminal offences.

As taking cognizance is application of mind by the Magistrate to

the suspected offence, a subjective element comes in. It would

be unreasonable to take a view that delay caused by the Court in

taking cognizance of a case could deny justice to a diligent

complainant. Such an interpretation of Section 468 of Cr.P.C.

would be unsustainable and would render it unconstitutional.

Furthermore, an anomalous situation would arise if date of

taking cognizance is considered to be relevant as cognizance

may be taken by Magistrate after the limitation period though

the complaint is filed within time. Hence, only harmonious

construction which can be placed on Sections 468, 469 and 470

Cr.P.C. is that Magistrate can take cognizance of an offence only

if the complaint in respect of it is filed/prosecution/criminal

proceedings instituted within prescribed limitation period.

Furthermore, complainant or prosecution are entitled to exclude

such time as is legally excludable.

15. The Apex Court further held that "cognizance" is an

act of the Court. The term "cognizance" has not been defined in

Cr.P.C. That means taking of cognizance is application of mind

or takes judicial notice of an offence with a view to initiating

proceedings in respect of offence which is said to have been

committed. It is further held that so far as the "heading" of

Chapter XXXVI is concerned, it is well settled that "heading" or

"title" prefixed to sections or group of sections have a limited

role to play in the construction of statutes. They may be taken

as very broad and general indicators or the nature of the

subject-matter dealt with thereunder but they do not control the

meaning of the sections if the meaning is otherwise

ascertainable by reading the section in proper perspective along

with other provisions. It is held that penal statutes must be

strictly construed. There are, however, cases where the

Supreme Court has having regard to the nature of the crimes

involved, refused to adopt any narrow and pedantic, literal and

lexical construction of the penal statutes. In this case, looking to

the legislative intent, the provisions of Chapter XXXVI have been

harmoniously construed so as to strike a balance between the

right of the complainant and the right of the accused. Besides,

Chapter XXXVI is part of the Criminal Procedure Code, which is a

procedural law and it is well settled that procedural laws must be

liberally construed to serve as handmaid of justice and not as its

mistress. The Apex Court in detail discussed and held that date

relevant for computation of period of limitation is the date when

criminal complaint is filed or date of institution of

prosecution/criminal proceedings, and not the date when a

Court/Magistrate takes cognizance.

16. In view of the principles laid down in the

Constitutional Bench judgment, the judgments relied upon by

the learned counsel for the petitioners will not come to the aid of

the petitioners, as contended by the learned counsel that taking

of cognizance is barred by limitation.

17. The learned counsel for the petitioners would

contend that NCR was issued and thereafter second complaint is

filed and there is no merit and the complainant has already

vacated the house on their request. The same is not acceptable

at this juncture when the complainant in the complaint has

specifically alleged that abruptly the accused persons came and

thrown her out from the house and also her belongings including

domestic vessels and caused damage to the house by using JCB.

Hence, it cannot be accepted at this juncture that the

respondent No.2 voluntarily vacated the premises and thereafter

they have demolished the building. The fact that they have

demolished the building is not in dispute taking note of the

averments made in the complaint. The complaint discloses the

ingredients of offence under Sections 448 and 427 of Cr.P.C.

Hence, it cannot be contended that on merit also there is no

case against the petitioners and the learned Magistrate has

committed an error in taking the cognizance. I have already

pointed out that the learned Magistrate while taking the

cognizance has applied his judicious mind and came to the

conclusion that there are prima facie materials to proceed

against the petitioners herein. Hence, I do not find any merit in

the petition to invoke Section 482 of Cr.P.C. to quash the

proceedings initiated against the petitioners herein.

18. In view of the discussions made above, I pass the

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD