1. For the limited purpose of this Criminal Revision Petition, which can be dubbed as a storm in a tea-cup, only a few particulars need be stated to resolve a technical legal point.

2. One Nagappa was way-laid and mercilessly assaulted on 19-7-73 at about sun-set time by a group of persons in Benachinamaradi village Gokak Taluk. The reason is attributed to personal feuds and political vendetta. The police patil recorded, the dying declaration of Nagappa. A few hours after the assault on him, Nagappa succumbed to his injuries in the car which was brought to take him to the hospital. The police of Gokak Police Station, after investigation, laid a charge-sheet against 8 persona as the accused, before the Judicial Magistrate First Class, Gokak, alleging overt acts leading to the murder of Nagappa. The learned Magistrate committed the case against those 8 accused to the Sessions Court Belgaum. That SC. No. 30 of 1974 is pending trial before the I Addl Dist and Sessions Judge, Belgaum, and has for the nonce been stayed by order of this Court, dated 29-11-1974. Smt. Nagawwa, mother of deceased Nagappa, filed a private complaint under S. 200 Cr. PC (1898) before the same Magistrate arraying 10 persons as the accused, namely two more than in the SC. No. 30 of 1974. These two additional persons are accused No. 9, who is a State Minister and accused No. 10, a sitting Member of Parliament. It is alleged against them that they being present at the scene during the fatal assault on Nagappa, abetted by instigation the committing of the offence, hence attracting Section 114 IPC.

3. The concluding portion (Para 8) of the order, d/. 3-12-1973, of the Magistrate, is—

“In the light of discussion made above, I direct the Superintendent of Police, Belgaum, to inquire and report about the truth or falsehood of the complaint as against accused No. 9 and accused No. 10 only under Sec. 202 Cr. PC in the light of the observations made above, within six weeks from the date of receipt of the direction.”

4. It is the above portion of the order that is assailed by the complainant in this Crl. RP filed under Ss. 435 & 439 read with S. 561A Crl. PC (1898). The relief claimed is—

“Wherefore, the petitioner prays that this Hon'ble Court may be pleased to call for the records, to set aside the said order of the Court below and to direct the issue of the process to the respondents 1 and 2 in the said case and to proceed against them according to law to meed the ends of justice.”

5. Respondents 1 and 2 here are accused Nos. 9 and 10 in the complaint, respondent 3 is the State of Karnataka.

6. Sri C.B Motaiya, Sri K.A Swami, and the State Public Prosecutor (learned Advocates), appeared for the petitioner (complainant), respondents Nos. 1 and 2 (accused Nos. 9 and 10), and the State, respectively. The State supported the stand taken by respondents 1 and 2. According to all the three learned Advocates, the sole and moot point which has to be determined is—Whether the learned Magistrate had taken cognizance of the case under S. 200 Cr. PC, or not, and at what stage?

7. The above point was argued vehemently, and at quite some length. All the three learned Counsel were agreed that in the above context, the order sheet of the Court of the Magistrate looms large. It is therefor necessary to set out the order sheet verbatim and in extenso. It is at below:.

“In the Court of Judicial Magistrate PC. No. 55 of 1973

FC., Gokak at Gokak Criminal Case No. of 1973

Nagawwa w/o Basappa Latti of Benachinamaradi

Versus

1/10. Nagappa Basappa Giddanavar of Benachinamaradi & 9 ors—

4-10-1973

Offences under Ss. 143, 147, 149, 341, 302, 114 read with 149 IPC. Before Shri A. Sreenivasa Murthy, B.A, B.L,

Judicial Magistrate, FC., Gokak

Complaint is presented by the complainant through Shri B.R Kopp, Advocate, at 1-30 p.m

Vakalat of Shri B.R Kopp, Advocate for the complainant filed. Register it in PC. register and put up for verified statement of the complainant.

The sworm statement (verified statement) of the complainant is recorded.

The complainant alleges offences under Ss. 143, 147, 148, 341, 302, 114 read with S. 149 IPC against A1 to A10. It is seen in para 11 of the complaint that the incident has resulted in Cr. No. 72/73 of the Gokak PS., and that it is only against A1 to A8. It is alleged in para 3 of that complaint that the deceased mentioned the names of A1 to A10 before) the PP. PP has recorded the dying declaration of the deceased. It is alleged in para 4 that the deceased mentioned the names off A1 to A10 even before the police, who arrived thereafter. It is alleged in para 10 that the complainant learnt that the PP and the police have left out A9 and A10 though the complainant told about them also, before the police, and though the deceased said so before PP when the PP recorded the dying declaration. It is alleged in the said para that the complainant has sent up her representations to the Chief Minister and the Prime Minister and others, but to no avail. It is alleged in para 12 of the complaint that A9 and A10 are influential persons, that A9 is Minister, that A10 is a Parliament Member, that therefore the police did not take action against them, and that the police of the Mysore State will not take action against them. Therefore, the complainant prays that the Court should not send her complaint for enquiry or investigation by the police, as she will not get justice at their hands, and that the Court should enquire into the matters Cr. No. 72/73 is pending enquiry before this Court, it is against A1 to A8 only.

The above allegations are spoken to by the complainant in her sworn statement before Court.

For the above reasons, I am of the opinion that process to the accused should be enquired into by the Court; the other witnesses of the complainant are to be examined to determine whether cognizance should be taken or not.

Complainant is directed to keep her witnesses presented on the next date.

Call on 8-10-1973 for examination of the witness of the complainants

Sd/- A. Sreenivasa Murthy,

4-10-73.

8-10-1973

Four witnesses examined today in open Court. Call on 9-10-73.

8-10-73.

9-10-1973

One more witness Mallappa is examined. Call on 10-10-73.

9-10-73.

10-10-73

Sri B.R Kopp for the, the complainant present. I have examine six witnesses in all, including the complainant.

I find that there are three sets of witnesses. The first set is the eye witnesses. They are the complainant and Basavanthappa Basappa Latti. The second set is the witnesses or attestors to the dying declaration. They are Siddappa Bhuthappagol and Chandrappa Sangannavar. The third set is the witnesses who allege that they were present at the time the dying declaration was recorded by the Police Patil. They are Nagappa Harijan and Mallappa Gidnavar.

In my opinion, the above sets of witnesses have placed sufficient material on record to determine whether the Court should proceed further or not. Hence, I do not propose, eo examine any more witnesses.

Sri B.R Kppp for the complainant submits that he will address arguments on the available material on record. Call on 12-10-73.

10-10-73.

12-10-1973

Sri B.R Kopp for the complainant present. Heard arguments. Orders by 16-10-73.

12-10-73.

16-10-1973.

Called out. Sri B.R Kopp, Advocate for the complainant present. The Presiding Officer is under orders of transfer Hence cape is adjourned to 30-10-1973 for orders.

I/C. JMFC.

30-10-1973

Called out. Sri B.R Kopp fox complainant is present. The case in which police have placed charge sheet is adjourned to 12-11-73. Hence call on 12-11-73.

12-11-1973

Complainant is absent when called. Sri B.R.K present. Sri B.R.K submits that the complainant has gone to hospital just now. Sri B.R.K submits that he may be heard as this Court has not heard the arguments after the transfer of my Predecessor-in-office. Time granted. Call on 26-11-1973.

30-10-73.

26-11-1973

Complainant by Sri B.R.K present. Sri R.R Talcherkar files power for the complainant.

Heard Sri R.R Talcherkar for the complainant. For consideration of the complaint and for further proceedings call on 3-12-1973. 3-12-1973

Complainant is present. Sri B.R Kopp present. Order pronounced in open Court directing enquiry and report of the complaint as against A9 and A10 only under S. 202 Cr. PC by SP, Belgaum, within 6 weeks from the date of receipt of direction from the Court. Call 10-1-1974.

3-12-73.

8. In several judgments of the Supreme Court placed before me a passage from Superintendent and Remembrancer of Legal Affairs, WB v. Abanni Kumar Banerji . AIR. 1950 Cal. 437. has been quoted which is as below:

“What is taking cognizance has not been defined in the Crl. PC and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under S. 190(1)(a)), Crl. PC, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter—proceeding under S. 200 and thereafter sending it for inquiry and report under S. 202. When the Magistrate applies his mind not far the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of soma other kind, e.g, ordering investigation under S. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot) be said to have taken cognizance of the offence.”

9. Towards the end of the judgment of the Supreme Court in Narayandas Bhagwandas Madhavdas v. State of WB . AIR. 1959 SC. 1118., we find the following passage:

“As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search-warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence.”

10. Pausing here for a momentt, it may be observed, as pointed out by Sri Motaiya, that the above circumstances are not present here.

11. The Supreme Court proceeds on to say—

“Obviously it is only when a Magistrate applies his mind for the purpose of proceeding under S. 200 and subsequent sections of Chap. XVI of the Crl. PC or under S. 204 of Chap. XVII of the order that it can be positively stated that he had applied his mind and therefore had taken cognizance.”

12. On the above observations of the Supreme Court, referred to in the previous para. Sri Swami tried to derive support. Sri Motaiya, however, argued that the above observations only apply to the ultimate taking of cognizance beyond, the vesting of any doubt and it cannot be invoked in a case of the present nature, where we have to deal with an earlier stage.

13. As agreed on all sides, the lines of a statute, when clear and precise, are of paramount importance and no reading between them is permissible. Sec. 200 Cr. PC reads:

“A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses; and also by the Magistrate.”

14. On a plain reading of the above provision, it perforce follows that taking cognizance of the offence or offences on complaint is a condition precedent to examining at once the complainant and the witnesses, if any, present on that day. Hence we can take it that on 4-10-1973 no witness for the complainant was present. The order sheet is silent about it. Towards the end of it of that day, the endorsement is that the complainant is directed to keep her witnesses present on the next date, and call the case on 8-10-1973 for examination of the witnesses of the complainant.

15. While Sri Swamy places dependence on the entry in the order sheet of date 4-10-73 viz, ‘to determine whether cognizance should be taken or not’, Sri Motaiya with equal vehemence, and I must say, justifiably, relies upon the entry of the same date that the matter should be enquired into by the Court. The word ‘enquire’ is absent in S. 200 Cr. PC but is there in S. 202 Cr. PC.

16. The complainant's substance of the examination was reduced to writing on 4-10-1973 itself, and this would mean on a plain reading of S. 20C Cr. PC, as set out already, was alter the Magistrate took cognizance of the offences. The Supreme Court has made the above position ??? clear in a later case in Gopal Das Sindhi v. State of Assam . AIR. 1961 SC. 986., which is the ruling most apposite to the circumstances of the instant case. The relevant portion at para 7 of the above judgment reads:

“…..It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chap. XVI of the Code. It’ is clear, however, that Chap. XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him because S. 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognzance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint……” (The underling italics for emphasis is mine).

17. Sri Motaiya represented, and I feel rightly, that the sworn statement of the complainant, (petitioner) could not, as per S. 200 Cr. PC be recorded unless the condition precedent was fulfiled, i.e cognizance being taken and that 5 witnesses being examined for the complainant on subsequent days is of no materiality. Chap. XVI Cr. PC contains only four sections namely, 200 to 203. We are not concerned with S. 201 here. The Chapter that follows immediately is Chap. XVII. which contains only two sections. What is relevant at this juncture is either S. 203 or S. 204. As represented by Sri Motaiya, after taking cognizance of an offence on complaint, the courses open to the Magistrate are, at once, to examine the complainant and the witnesses present, even if the words ‘at once’ are given a liberal interpretation, and then, if need be, if the Court entertains any doubt on certain matters about the involvement of some of the alleged accused, to call for a report from a police officer, and that the Magistrate is prohibited from directly having recourse to Sec. 202 Cr. PC abdicating the functions which he has already assumed, or even a portion thereof, to a police officer, however highly he may be placed, to make an enquiry or an investigation as is envisaged under S. 202. The above position is amply made evident in a Division Bench ruling of this Court in State of Mysore v. B.M Burli . 1973 2 Mys. L.J 214.. The observations found at para 6 of the above decision are:

“It is clear from the wordings of S. 202 that a Magistrate, if he thinks fit, for reasons to be recorded in writing can postpone the issue of process and then either—

(i) inquire into the case himself; or

(ii) call for a report from a subordinate Magistrate; or

(iii) call for a report from a police officer; or

(iv) call for a report from such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint.

It is open to the Magistrate to follow any of these four alternatives laid down by S. 202, but this section, does not authorise the Magistrate to make use of all these alternatives.”

18. The above ruling approved a single Bench decision of this Court in Sabavva v. Gopolappa . Crl. RP. 622/70 d/. 7-4-1971.. Sri Swami was at considerable pains to distinguish the above two rulings, stating that the facts and circumstances were different. As pointed out by Sri Motaiah, it appears to me that the distinctions are without a difference. No two cases can be identical on all fours. What has to be borne in mind are the essential principles laid down and culled out from them.

19. The learned State Public Prosecutor drew my attention to one sentence at the end of para 7 in Burli's case viz, it is open to this Court after taking into account the complaint and the sworn statement of the complainant and witnesses, if any produced by him at the time of taking cognizance of the complaint, and the police report to decide whether there was sufficient ground for proceeding with the case and issuing process against the accused. He stressed the expression ‘and the police report’. That alone cannot be read, tom out of the context because the facts and circumstances in the decision referred to above were a bit different.

20. What follows on the above discussion is that we have passed the stage of S. 200 Cr. PC where respondents 9 and 10 have no say in the matter. Under S. 202 Cr. PC. the Magistrate having commenced the enauiry himself is debarred from referring a portion of it to in outside agency, in a divided bent of mind, as a half-way and hybrid measure. Within the sacred precincts of the Court Hall, politics and influence have no entry. The Magistrate himself has expressed this in no uncertain terms, and he has perforce to follow in practice what he has preached, without fear or favour. Justice, within the bound's of law, has got not only to be done but also appear to be done.

21. Let me remark that only one gate at this stage is closed. The rest are left wide open.

22. In the order sheet d/. 10-10-1973 of the Court below, we find the following in the penultimate para:

“In my opinion, the above sets of witnesses have placed sufficient material on record to determine whether the Court should proceed further or not. Hence, I do not propose to examine any more witnesses.”

23. This order made ‘suo motu’ is, to say the least, wholly unwarranted. The case, therefore, stands remitted to the Court below to proceed according to law, and to examine other witnesses, if there are any, himself under S. 202 Cr. PC as regards the politically powerful personalities, accused Nos. 9 and 10 (respondents 1 and 2 here), and then deal with the matter either under S. 203 or under S. 204 Cr. PC.

24. The revision petition is allowed, setting aside the impugned portion of the order of the Court below, and the case is remanded to it to proceed in the light of the observations made above.