'Reckless' Order Of Magistrate Taking Cognizance Of Rape Offence Despite Lack Of Allegations : Karnataka HC Quashes Proceedings

A single judge bench of Justice M Nagaprasanna while allowing the petition filed by Hebbar said,

"All the points that have arisen for consideration are held against the prosecution viz., delay in lodging the FIR; final report being filed by an officer who was not in-charge of the Police Station; act of the learned Magistrate in taking cognizance of the offence which bears no application of mind and fact that the complaint itself not linking any event narrated to the offences alleged."

It added, "In my considered view that such allegations cannot enmesh the petitioner for continuance of trial, as it would without doubt degenerate into harassment and be an abuse of the process of law, resulting in miscarriage of justice. Therefore, this is a fit case where this Court has to exercise its jurisdiction under Section 482 of the Cr.P.C. and obliterate entire proceedings against the petitioner."

The Court clarified in its order that it has dealt with only the proceedings against the petitioner Manjunath Hebbar and has not dealt with the other accused.

"The trial, if any, pending against any other accused shall be considered by the competent Court without being influenced by the observations or the findings in the case at hand", the Court said.

Case Background:

The accused and the victim got married at Sirsi, on 27.05.2009. The petitioner claimed the 2nd respondent on 18.03.2012 left the marital house and started to live away from him. Following which she issued a legal notice in 2014 seeking maintenance. A reply was sent to it. Notwithstanding the same, the complainant filed a petition under Section 125 of the Cr.P.C. seeking maintenance from the hands of the petitioner. The petitioner filed objections to the petition, after which the petitioner filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Countering this, the complainant filed a petition in M.C.No.25 of 2016 seeking annulment of marriage with the petitioner.

On issuance of notice in the petition filed by the complainant seeking a divorce in M.C.No.25 of 2016, the petitioner filed a civil petition in C.P.No.141 of 2018 seeking transfer of petition filed by the petitioner and during the pendency of consideration of the said petition, the complainant registers a complaint on 29.08.2015.

After registration of the crime, the police investigated the matter and filed a final report/charge sheet for offences punishable under Sections 323, 376, 376(2)(f)(i)(n), 498A and 109 of the IPC. The Magistrate took cognizance of the matter and issues the process on 27.09.2018. Following which the petitioner approached the court. By an interim order, the court had stayed further proceedings.

Petitioner submissions:

Senior Advocate CV Nagesh and Advocate S.Rajashekar appearing for petitioner contended that, "Entire proceedings right from the word go is a rude shock, to known canons of law as every stage of the proceedings are vitiated on account of it being blatantly contrary to law."

Further, it was submitted there is a delay in lodging the complaint and registration of FIR have vitiated the entire proceedings, as there is admittedly, a delay of 9 months in registration of complaint. The cognizance of the offence taken by the learned Magistrate of the offences alleged is without application of mind.

It was also said that, "The learned Magistrate takes cognizance under Section 190 of the Cr.P.C., for offences punishable under Sections 323, 376, 498A and 109 of the IPC without there being any allegation of the said nature against the petitioner."

It was also contended that the Magistrate grossly erred in taking cognizance of the offence on the basis of a final report submitted by the CID who admittedly is not an officer in–charge of the police station. The issuance of process is violative of section 204 of the Criminal Procedure Code (CrPC).

Victims submissions:

Advocate Arvind.M.Neglur, submitted that there cannot be any delay as contended by the petitioner, as the offence coming under Section 498A of IPC depicts punishment for 3 years and, therefore, the complaint is lodged within those three years.

Relying on Standing Order, dated 7.11.1958, depicting the officer of CID to be the officer-in-charge of a Police Station for the conduct of the investigation and, therefore would contend that once he conducts the investigation, he is empowered to file the charge sheet. Moreover, as per section 36 of the Cr.P.C., a superior officer can also exercise jurisdiction of the officer in charge of a police station and therefore, filing of final report does not become vitiated.

Further, taking of cognizance of offence of rape under Section 376 of IPC, cannot be found fault with as it also concerns accused No.1 as the offence of accused No.1 and accused No.2 being intertwined, cannot be held to be bad in law.

Prosecutions Submissions

Advocate Namitha Mahesh B.G, appearing for the prosecution submitted that officer of CID is empowered to file the final report/charge sheet and would submit that identical view with regard to officer in charge of a police station having been taken by a Coordinate Bench of this Court in Criminal Revision Petition No.34 of 2018 disposed of on 18-01-2021 is stayed by the Apex Court in S.L.P.Nos.2157-2158 of 2021 and, therefore, the same should not be addressed by the Court.

Court findings:

The court went through the complaint filed by the victim and said, "The events narrated in the complaint are all of the year 2009, against the petitioner. The last of the event as narrated in the complaint is on 18-03-2012 and the complaint is registered on 29-08-2015. Therefore, on consideration of the complaint and the date of registration of FIR, the unmistakable conclusion that would emerge is that, it is hit by delay."

Further it said that, "The delay in the case at hand even on perusal of the complaint is close to 3 years and 6 months as the date of desertion, even according to the complaint is on 18.03.2012, and complaint is registered on 29.08.2015. There is absolutely no explanation for such delay anywhere in the complaint or the statements. Therefore, the delay in lodging the complaint and registration of FIR, for the offences alleged has undoubtedly vitiated the very initiation of proceedings against the petitioner."

The court then considered the question of whether CID could file the final report who was in fact not an officer in-charge of the police station. The court said, "Admittedly, there is no notification issued under Section 2(m) declaring the office of CID to be a police station. Therefore, the officer in-charge in the office of the CID cannot be an officer in-charge of a police station, without at the outset the office of the CID being declared as a police station."

"Moreover, as per section 36 CrPC, an officer of the CID, cannot mean to be a superior officer in-charge of a police station as the office of CID is not a police station," the Court said.

As regards cognizance taken by the learned Magistrate on the final report and issuance of process suffers from non-application of mind and would be contrary to Section 204 of the Cr.P.C the court said, "If order taking cognizance is considered on the touchstone of either Section 204 or Section 190 of Cr.P.C. (supra), it would without a shadow of doubt fall foul of the said provisions of law, as there is absolutely no application of mind by the learned Magistrate in taking cognizance as to which offence he is taking cognizance of."

It added, "Neither the complaint, the investigation nor final report speaks of Section 376 of IPC or offence of rape against the petitioner. Therefore, in the light of the facts at hand as considered herein and the judgments of the Apex Court, the order taking cognizance on the face of it is reckless and suffers from non-application of mind."

The court then went on to analyse each of the charges levelled and considering the complaint and statements recorded held that, "Nowhere make out any of the ingredients of the aforesaid offences."

It also opined that,

"The learned Magistrate was required to apply his mind, record reasons for taking cognizance and issuance of process as it is mandatory that he should find sufficient ground for issuance of process and such application of mind or existence of sufficient ground, would become demonstrable only in the order taking cognizance. The order taking cognizance (supra) does not bear any semblance of application of mind. Issuance of process is a serious matter, since a criminal trial is set in motion, on such act of taking cognizance. Such a paramount process cannot casually be made by the learned Magistrate."

However, the court clarified that, "The observations made in the course of the order are restricted to the consideration of the case of the petitioner alone and cannot be paraphrased to any other accused. The trial, if any, pending against any other accused shall be considered by the competent Court without being influenced by the observations or the findings in the case at hand."

Case Title: Manjunath Hebbar v. The State Of Karnataka

Case No: Writ Petition No.56754 of 2018

Date of Order: 13th Day of December, 2021

Appearance: Senior Advocate C.V.Nagesh, A/W Advocate S.Rajashekar for Petitioner; Advocate Namitha Mahesh B.G. for R1; Advocate Aravind M.Neglur for R2

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