STATE OF KARNATAKA Vs. KARIYAPPA

JUDGEMENT

(1.) This petition under S.482 of the Crl.PC. raises a short but important question. One Kariyappa was charge-sheeted by the CPI, Haveri for having committed the murder of Ningawwa and the offence was u|S.302 IPC. The charge-sheet was obviously submitted to the Magistrate under S.173 of the CrlPC. In one of the columns of the charge-sheet it was required of the Police to state as to whether the accused was arrested. In that column it was specified that the accused could not be arrested as he was absconding. The learned Magistrate threw away the charge-sheet and held that he could not take cognizance of the case in the absence of the accused. The prosecution came in revision before the Sessions Judge. Although the learned Sessions Judge held that under S.209 the charge- sheet could not be refused and the learned Magistrate could proceed, yet, he held that in view of the provisions contained in Ss. 170 and 173 the learned Magistrate could also return the charge-sheet to the police. In Other words, he upheld the decision of the learned Magistrate refusing to take cognizance ot the case. Against that order of the learned Sessions Judge, the present petition is instituted.

(2.) It is manifest under S.209 of the Code, a case is first to be instituted, which can only be done by the Magistrate taking cognizance of the offence, and thereafter the accused is to be brought before the Magistrate. Therefore the institution of the case was the first requirement. It is only after the institution that the Magistrate could commit the case to the Court of Session. At that stage the presence of the accused was required. The cognisance under S.190 of the CrlPC is invariably taken of the offence and not of any accused committing that offence. This is so clear from the section itself. If the leaned Magisttrate was otherwise competent, he could take cognizance, of the case upon police report. Therefore, the order of the learned Magistrate returning the charge-sheet was prima facie incorrect.

(3.) Unless the learned Magistrate takes cognizance of the case, how could he issue summons or warrants against the named accused. He could not decide as to whether the accused was absconding and as to whether any distraint or attachment of his property was needed under the provisions of the Code. By returning the charge-sheet, the learned Magistrate has made defunct all the provisions of the Code dealing with process, to compel appearance of the person charged for an offence. S.170 only deals with a case where the evidence is sufficient and the accused is brought before a Magistrate empowered to take cognizance. That section was not at all relevant. S.173 itself makes it clear that the charge-sheet may be submitted even though the accused has not been arrested. S.299 in fact deals with the situation where the accused is absconding and evidence is required to be adduced in his absence. In case the charge-sheet is returned and cognizance is not taken, S.299 cannot be complied with. It is therefore evident that both the learned Magistrate as well as the learned Sessions Judge failed to exercise a jurisdiction vested in them. There was therefore abuse of process of the Court and 'the application under S.482 of the CrlPC has to be allowed under the inherent jurisdiction of the High Court.