NINGAPPA Vs. BASREDDY

JUDGEMENT

(1.) The order dated 12-10-1976 passed by the Munsiff and Judicial Magistrate I Class, Sedam, in Complaint No.2. of 1976 dismissing the complaint of the petitioner under Sec.203 of the CrlPC is challenged. Some of the undisputed facts may be narrated as follows : At about 8-3C a.m. on 11-5-76 the petitioner lodged a complaint in Mudhol police Station complaining that respondents had assaulted him and the members of his family in his house at about 6-30 p.m. on 10-5-76 and taken away 12 heads of cattle forcibly. A case in crime.NO. 19 of 1976 was registered for the offence under Sec.395 of the IPC. The Circle Inspector of Police recovered 12 heads of cattle on 11-5-76 itself and after securing necessary orders from the Magistrate handed over the same to the petitioner. He filed his final B Summary report under S.173 of the CrlPC on 2-7-76 to the effect that the alleged offence was false and notified the complainant about it. The petitioner kept quiet. The Magistratte accepted the report on 12-7-76. Thereafter on 14-7-76 the petitioner filed complaint No.2 of 1976 and the learned Magistrate took cognizance of the offence, recorded the sworn statements of the petitioner and two witnesses. He then reported the matter to the Sessions Judge, Gulbarga, narrating that he had earlier accepted B report and it was not fair and proper on his part to deal with the private complaint and requested that the case be transferred to some other Magistrate. The learned Sessions Judge returned the papers to the Magistrate stating that the parties may be directed to request for a transfer, if they Wanted. Thereafter, the Magistrate asked the petitioner and his Counsel whether they were interested in getting an order of transfer. Counsel for the petitioner submitte,d before the Magistrate that he did not want an order of transfer. Thereafter the Magistrate proceeded to consider whether process was or was not to be issued against the respondents and whether there were good grounds to proceed with the case or whether the same should be dismissed. He on examining the evidence and the circumstances concluded that there were no grounds to proceed with the case and dismissed the same under Sec.203 of the CrlPC. Though the learned Magistrate has opined in the course of his order that a duty is cast on the petitioner complainant to explain the circumstances under which the police filed the B report, he has failed to discharge that duty, the same cannot be upheld as such a duty is not cast on a complainant. But the fact remains that the petitioner was notified about the report by the Circle Inspector of Police and the petitioner did not take any steps by being present before the Magistrate On receipt of the intimation. On the other hand, he waited till 12-7-76 when the learned M'agistrate accepted the B summary report. That conduct of the petitioner has to be borne in mind. Then two days later he filed the private complaint. According to the petitioner the incident took place at about 6-30 p.m. on 10-5-76. But he went to the police station at 8-30 a.m. on 11-5-76. He has explained this delay by alleging that he did not go to the police earlier to 8-30 a.m. on 11-5-76 because he was very much afraid of the respondents. What is found in his evidence and the evidence of his witnesses is that the respondents went straight to the house of the petitioner and took away 12 heads of cattle. NO injuries are seen to have been sustained either by the petitioner or any one of the members of his family. Therefore, the explanation given by the petitioner in regard to the delay is, on the face of it, not acceptable. On this question the learned Magistrate has come to a correct conclusion.

(2.) The foregoing conclusion when considered, in the light of the conduct of the petitioner leads to a conclusion that this is a fit case where process ought not to be 'issued by the learned Magistrate. In a private complaint filed under Sec. 190 CrlPC the Magistrate can in law after taking cognizance of the offence either hold an enquiry under Sec.202 of the CrPC and then proceed to deal with the matter as per the provisions in Sec. 203 of the Cr.PC. or straightaway proceed to deal with the matter under Section 203 of the CrPC provided he has not yet issued process against any of the accused mentioned in the complaint. If he were to issue process, then on the appearance of the concerned accused, Sec. 209 of the Cr.PC. would be applicable. In the case on hand the learned Magistrate had not issued process and therefore he was in law competent to deal with the case of the petitioner under Sec.203 of the CrPC. Hence, I do not find any substance in the reasoning of the learned counsel for the petitioner Sri V. S. Kulkarni that the Magistrate on finding that the offence is exclusively triable by the Sessions Judge, ought to have committed the respondents to the Court of Sessions.

(3.) In view of the foregoing reasons, this petition fails and is dismissed.