MOHAMMAD RAFIQ B Vs. ABDUL SALAM

JUDGEMENT

(1.) THE petitioners have challenged the order dated 12.9.2007 passed by the JMFC, Siruguppa, directing the PSI, Sirigeri to arrest the petitioners with the assistance of Respondent No.1 herein.

(2.) THE facts relevant for the purpose of this petition are as under : It is on 19.12.2006 that Respondent No.1 filed a complaint about the theft of gold necklace and other silver ornaments from his house. THE said complaint came to be registered by Sirigeri Police in Crime No.174/2006 for the offence under Sections 454, 457 and 380 IPC. THE investigation was held and thereafter, the 'C Summary report was filed on the ground that the Police were not able to trace the accused and secure any information with regard to the theft. THE said 'C Summary report submitted by the Police was accepted by the learned Magistrate by his order dated 10.8.2007. It is on 17.8.2007 that an application came to be filed for advancement of the matter and the Respondent No.1 herein i.e., the complainant before the Trial Court filed an affidavit giving particulars of the address of the petitioners herein as the persons whom he suspected as the thieves. THE learned Magistrate on the basis of the said affidavit has issued the impugned order directing the PSI to arrest the petitioners with the assistance of the complainant. Aggrieved by the said order, the petitioners have approached this Court in revision.

(3.) AS regards the taking of cognizance, it is relevant to note that Section 190 Cr P.C. provides the procedure of taking the cognizance by the Magistrate in cases where a complaint on facts is flied before the Magistrate or on Police report or upon any information received from any person other than the Police Officer or even upon the knowledge of the Magistrate himself. These are the circumstances on the basis of which the Magistrate is empowered to take cognizance to issue the process. AS could be seen from the facts on hand, a complaint in respect of the theft was filed by the respondent herein on 19.12.2006. In pursuance of this complaint filed to the Police, the investigation was held and the 'C Summary report came to be filed. The said report was accepted by the Magistrate vide Order dated 10.8.2007. Once the report is accepted, unless the order accepting the report is recalled or that a protest petition is filed, there is no question of the learned Magistrate taking the cognizance. Even as could be seen from the impugned order, what the Magistrate has looked into is the affidavit of the Respondent No.1 herein in which the address of the petitioners is mentioned and it is stated that the complainant suspects them as the persons who have committed the theft. It is solely on the basis of this affidavit that the learned Magistrate directed the arrest of the petitioners. To take the cognizance, there must be allegation which constitute an offence and the Magistrate must be satisfied that there are grounds to proceed against a person and in such circumstances only the Magistrate can issue the process adopting the procedure provided under Sections 200 to 203 Cr.P.C. Neither the protest petition has been filed nor the order accepting 'C' Summary report, has been recalled and only when an affidavit came to be filed by the respondents herein, the learned Magistrate proceeded to pass an order issuing the arrest warrant looking only into the affidavit. The perusal of the procedure adopted for taking the cognizance even on the basis of a private complaint reveals that the Magistrate has to record the sworn statement and in case if he is satisfied on the basis of the material placed on record can issue the process. Nowhere it is provided under the provisions of Cr. P.C. to accept an affidavit as a sworn statement when the law contemplates that it is the Magistrate who has to record the sworn statement. The procedure adopted by the learned Magistrate in issuing the arrest warrant against the petitioner is illegal and improper. Even otherwise, looking to the contents of the affidavit, there is nothing to show that there are facts which constitute an offence. In the circumstances, I am of the opinion that the order passed by the learned Magistrate is illegal Hence, I answer Point No. 1 in the affirmative and proceed to pass the following; ORDER The petition is allowed. The order dated 12.09.2007 issuing the warrant of arest against the petitioners is quashed. The petition is disposed of accordingly.