SIDDAPPA SANGAPPA KOTEGUDD Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) 1. Petitioner is the first accused in S.C. No 77 of 1984 on the file of the Additional Sessions Judge, Bijapur. There are 17 accused in all in that case. On 13-2-86, the learned Additional Sessions Judge, Bijapur, has framed two charges against the petitioner and the remaining 16 accused. The first charge is in respect of an offence punishable under Section 447 IPC and the second charge is in respect of an offence punishable under Section 395 IPC. Nearly one year 8 months after framing of the said charges against all the 17 accused in S.C. 77/84 that the first accused alone has filed this petition under Section 482 Cr.P.C. for quashing the committal order dated 11-10-84 passed by the J.M.F.C. Basavan-Bagewadi in C.C. No. 205/84 ordering committal of that case to the Court of Session as the offence under Section 395 IPC alleged against the accused is exclusively triable by the Court of Session. By the same order, the learned Committal Magistrate has directed the petitioner and the remaining 16 accused to appear before the Sessions Court on 29-10-84. Pursuant to that order, all the 17 accused including the petitioner have appeared before the learned Sessions Judge on 29-10-84 and participated in the proceedings of S.C. No. 77/84 till the above mentioned two charges were framed against them on 13-2-86 and even thereafter,

(2.) The grievance now made by the petitioner is that since C.C. No. 205/84 was registered on the basis of a private complaint presented under Section 200 Cr.P.C. by one Smt. Sangawwa (complainant) alleging that the 17 accused named in the complaint had committed offences punishable under Sections 447, 394, 395, 324, 506(b) read with Section 149 IPC and since the offence under Section 395 IPC is exclusively triable by the Court of Session, the learned Magistrate ought to have followed the procedure laid down in sub-section (2) of Section 202 Cr.P.C. and called upon the complainant to produce alt witnessess and examined them on oath and thereafter complied with the provisions of Section 208 Cr.P.C. and then committed the case to the Court of Session for the trial of the accused for the above mentioned offences and instead of doing so, the learned Magistrate had referred the complaint to the CPI, Basavan-Bagewadi for investigation and submission of report by order dated 19-2-83 and has then acted upon a charge-sheet filed by the CPI, Basavan-Bagewadi on 24-3-84 for offences under Sections 447 and 395 IPC and has committing the case to the Court of Session.

(3.) Petitioner appears to have filed the present petition on the strength of a decision of this Court in Abdul Khader v Mohammed Faizuddin (ILR 1987 Karnataka, 832) in which it is observed that in a case instituted on a private complaint, where the offences alleged are exclusively triable by a Court of Session, it is not only not permissible for the Magistrate to direct investigation by the police as provided under Section 156(3), or Section 202 but it is also obligatory on him to call upon the complainant to produce all his witnesses and examine them on oath as provided under the proviso to sub-section (2) of Section 202 Cr.P.C. before issuing process under Section 204. But, contrary view is expressed by this Court in Nagansgouda v Kama/ax/ (ILR 1986 Karnataka 1229) in which the first point considered is whether the Magistrate before taking action under Section 204 of the Cr.P.C. directing issue of process to the accused on the basis of a complaint in which some of the offences alleged against the accused are exclusively triable by the Court of Session should have held an enquiry as contemplated under Sec. 202 Cr.P.C. It is held on that point that the Magistrate is at liberty either to take recourse only under Section 200 or Section 202 of the Cr.P.C. as he thinks fit and, therefore, the proviso to sub-section (2) of Section 202 cannot control Section 200 Cr.P.C.