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‘Reckless’ Order of Magistrate Taking Cognizance of Rape Offense Despite Lack of Allegations: Karnataka HC Quashes Proceedings

Team SoOLEGAL 17 Dec 2021 2:17pm

‘Reckless’ Order of Magistrate Taking Cognizance of Rape Offense Despite Lack of Allegations: Karnataka HC Quashes Proceedings

The Karnataka High Court recently rejected a criminal case in which a Magistrate took cognizance of the offense of rape on a complaint submitted by the accused’s estranged wife, despite the fact that the accused was not accused of rape. The plaintiff submitted the complaint against multiple people, including the Pontiff of Ramachandrapura Mutt, alleging a variety of offences, including rape. The complainant’s spouse was also one of the accused. The offense of  rape against the spouse was prosecuted by the Magistrate.

Manjunath Hebbar, the husband, was outraged and petitioned the High Court to have the proceedings halted. The High Court, in granting the petition, stated, “Neither the complaint, the investigation nor final report speaks of Section 376 of IPC or offense 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.”

While granting Hebbar’s plea, a single judge bench led by Justice M Nagaprasanna stated, “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 offense which bears no application of mind and fact that the complaint itself not linking any event narrated to the offenses alleged.”

It also 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.”

In its ruling, the Court stated that it had only dealt with the proceedings against the petitioner, Manjunath Hebbar, and had not dealt with the other defendants.

“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:
On May 27th, 2009, the accused and the victim married in Sirsi. The petitioner alleged that on March 18, 2012, the second respondent left the marital home and began living apart from him. Following that, in 2014, she filed a formal notice claiming maintenance. It received a response. Despite this, the complainant filed a petition under Section 125 of the Cr.P.C. claiming maintenance from the petitioner’s hands. Following the filing of objections to the petition, the petitioner filed a plea under Section – 9 of the Hindu Marriage Act seeking return of Conjugal rights. In response, the complainant filed M.C. No. 25 of 2016 requesting annulment of marriage with the petitioner.

Following the 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 the petition filed by the petitioner, and the complaint registers a complaint on 29.08.2015, during the pendency of consideration of the said petition.

Following the registration of the crime, the police conducted an investigation and issued a final report/charge sheet for offenses punishable under Sections 323, 376, 376 (2)(f)(i)(n), 498A, and 109 of the IPC. On September 27th, 2018, the magistrate took note of the matter and issued the procedure. Following that, the petitioner went to court. The court has stopped further proceedings with an interim order.

Petitioner Submissions:
Senior Advocate CV Nagesh and Advocate S. Rajashekar, who represented the petitioner, stated that the “entire procedures right from the word go is a severe shock to acknowledged canons of law since entry level of the processes is vitiated on account of it being patently opposed to law.”

Furthermore, it was argued that the delay in filing the complaint and registering the FIR tainted the entire procedure, as there is a 9 month wait in filing the complaint. The learned Magistrate’s cognizance of the alleged offences in based on a lack of application of mind.

It was also said, “the learned magistrate takes cognizance under Section – 190 of the Cr.P.C., for offenses 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 further argued that the magistrate made a grave error in taking cognizance of the offense based on a final report filed by the CID, who is not an officer in charge of the Police Station. The issuing of process is a violation of Criminal Procedure Code, Section – 204.

Victims Submissions:
Advocate Arvind. M. Neglur stated that there was no delay, as the petitioner claimed, because the offense under Section 498A of the IPC is punishable by imprisonment for three years, and hence the complaint was filed within those three years.

Based on a standing order dated 7.11.1958, which depicts the officer of CID as the officer – in – command of a police station for the conduct of the investigation, he would argue that after the investigation is over, he is authorized to file the charge sheet. Furthermore, under section 36 of the Cr.P.C., a senior officer may exercise the jurisdiction of the officer in charge of a police station, and so the submission of the final report is not jeopardized.

Furthermore, taking cognizance of rape under Section – 376 of the IPC cannot be faulted since it also involves accused No. 1 and accused No. 2 in linked, cannot be held to be bad in law.

Prosecutions Submissions
Advocate Namitha Mahesh B.G, appearing for the prosecution, submitted that the officer in charge of a police station is empowered to file the final report/charge sheet and that the same view with regard to officer in charge of a police station taken by a Coordinate Bench of this Court in Criminal Revision 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 reviewed the victim’s allegation and stated, “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 March 18th, 2012 and the complaint is registered on August 29th, 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 is lodging the complaint and registration of FIR, for the offenses alleged has undoubtedly vitiated the very initiation of proceedings against the petitioner.”

The court next addressed whether CID may file the final report with someone who was not an official in charge of the police station. According to the court, “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 the police station.”

“Moreover, as per section 36 Cr.P.C., 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.

The court stated that the learned Magistrate’s cognizance on the final report and issuing of process suffers from lack of application of mind and would be contradictory to Section 204 of the Cr.P.C., “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 offense 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 proceeded to examine each of the accusations leveled and, after analyzing the complaint and statements recorded, concluded that, “Nowhere make out any of the ingredients of the aforesaid offences.”

It also pointed 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 also 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 finding in the case at hand.”



Tagged: Karnataka HC   criminal case   Section 376   IPC   Justice M Nagaprasanna   Hindu Marriage Act   Advocate CV Nagesh   Advocate S. Rajashekar   Criminal Procedure CodeAdvocate Arvind. M. Neglur  
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