IN THE 111GB COURT OF KARNATAKA CIRCUIT BENCH Al DIIARWAD DATED THIS THE 23 DAY OF FEBRUARY 2011 BEFORE THE HON’BLE MR. JUS VICE ANANI) BYRAREDDY CRIMINAL PETITION No.8380/20 10 BETWEEN: 1. Suresh, Sb Kallappa Kabadagi, Aged 55 years, 0cc: Business, R’o Bijapur, Bijapur Taluk. 2. Ramesh, S/o Suresh Kabadagi, Aged 26 years, 0cc; Business. Rio Bijapur, Bijapur Taluk. 3. Sarojani W o Suresh Kabadagi, Aged 45 years. R o Bijapur, Bijapur Taluk. 4. Mallikarjun, S o Sangappa Gadag. Aged 50 ,ears, 0cc: Nil, 2 0cc; Business, Rio Bijapur, Bijapur Taluk. 5. Saraswati, Wlo Mallikarjun Gadag Aged 43 years, Rio Bijapur, District Bijapur. 6. Ramesh, Sb Basavantappa Kakhandaki, Aged 43 years, 0cc; Private service, Rio Bijapur, District Bijapur. 7. Sushila, Wbo Ramesh Kakhandaki, Aged 43 years, Rio Bijapur, District Bijapur. 8. Viswanath Sb Irangouda Path, Aged 40 years, 0cc: Business, Rio Bijapur, District Bijapur. 9. Rekha, Wbo Viswanath Padi, Aged 57 years, 0cc: Housewife, Rio Bijapur, District Bijapur. 3 3 10.Bayavva, W/o Basappa Kesargoppa, Aged 60 years 0cc: Housewife, Rio Bijapur District Bijapur. .. PETITIONERS (by Shri Shivaraj P.Mudhol, Adv.,) AND: I. Mallikarjun, Sb Basappa Kesargoppa, Aged 39 years, 0cc: Business, Rio Banahatti, Taluk Jamakhandi, Bagalkot District. 2. The State ofKarnataka, Represented by State Public Prosecutor, High Court of Kamataka, Circuit Bench, Dharwad. .. RESPONDENTS (by Shri Gangadhar S Kosakeri, Adv.,) This Criminal Petition is filed under section 482 of the Code of Criminal Procedure, seeking to quash the entire proceedings in CC No.49712010 (P.C.No.103/08 dated 27.5.2010 pending on the file of the Civil Judge (Jr.Dn.) and JMFC, Banahatti. This petition coming on for hearing this day, the court made the following :- -g 4 ORDER Heard the learned counsel for the petitioner. 2. It is the petitioner’s case that he has been shown as the accused on an oral complaint said to have been made by the respondent herein before the Court of the Magistrate. The complainant was represented by counsel and the sworn statement of CW.2 was recorded and thereafter, process was ordered to the petitioner. It is this procedure which is sought to be questioned in the present proceedings. 3. The learned counsel would draw attention to Section 200 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.PC’ for brevity) and he would submit that the Section clearly spells out that on an oral complaint being made before the Magistrate, the Magistrate shall record the sworn statement of the complainant and the complainant’s witnesses and thereafter issue process to the accused. This procedure has been overlooked in the sworn statement never having been 5 recorded. This is apparent from a reading of the order-sheet, which clearly disclosed that the Magistrate has proceeded on the basis of the sworn statement of the witnesses of the complainant, but not the complainant himself. Therefore, he would submit that the entire proceedings are vitiated. 4. The learned counsel for the respondent, on the other hand, would submit that the oral complaint of the complainant has been reduced to writing by the Magistrate and thereafter the sworn statement of CW.2 has been recorded. There is sufficient compliance with the requirement of Section 200 of Cr.PC and unless the petitioner is in a position to show that he was prejudiced by such a procedure having been adopted, there is no warrant for interference with the proceedings. He would further contend that even ifthis is held to be a S procedural irregularity, the entire proceedings are not vitiated and since the present petition seeks to challenge the procedure adopted at the earliest point oftime, there is no impediment if I, 6 . the matter is recommenced from the stage of recording the sworn statement ofthe complainant. 5. In this view of the matter, from a plain reading of Section 200 of the Cr.PC, it is clear that the sworn statements of the complainant and his wimesses ought to be recorded by the Magistrate immediately after he takes cognizance of the complaint. There is hence a procedural irregularity, in the sworn statement of the complainant not having been recorded by the Magistrate. This, however, is a curable defect as has been held in a line ofcases. Therefore, the petition is allowed and the matter is remitted to the Court of the Magistrate, with a direction that the proceedings shall recommence from the stage of recording the sworn statement of the complainant and witnesses, if any and thereafter, the Court of the Magistrate shall proceed in accordance with law. S 7 S The petition is accordingly allowed subject to the above direction. The office is directed to remit the papers to the Court ofthe Magistrate. sa JUDGE fly