Karnataka High CourtSuresh S/O.Kallappa Kabadagi, vs Mallikarjun S/O.Basappa Kesargoppa, on 23 February, 2011Author:Anand ByrareddyBench:Anand ByrareddyIN 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.



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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 of Karnataka,
   Represented by State Public Prosecutor,
   High Court of Kamataka,
   Circuit Bench,
   Dharwad.                            RESPONDENTS
                                       ..




(by Shri Gangadhar S Kosakeri, Adv.,)


      This Criminal Petition is filed undersection 482of 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 :-


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                           ORDERHeard 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 toSection

200of 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 been5recorded. 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 ofSection 200of

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 if this 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 of time, there is no impediment if




                                                                    I,6.the matter is recommenced from the stage of recording the

    sworn statement of the complainant.5. In this view of the matter, from a plain reading ofSection 200of 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 of cases.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.S7S




          The petition is accordingly allowed subject to the above

    direction. The office is directed to remit the papers to the

    Court of the Magistrate.sa
                                            JUDGE




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