1. Facts in brief which has led to the filing of this petition are:

At the time of shooting of a Kannada Regional Language film by name Mastigudi on 07.11.2016 at Thippagondanahalli lake, Tavarekere, Magadi Taluk, deceased Sriyuths Anil and Uday (stunt actors) were to enact jumping together from a Helicopter along with the film Hero one Sri Duniya Vijay to the water. During such act, the stunt actors Sriyuths Anil and Uday got drowned in the water and as a result, both succumbed. However, the film Hero Sri Duniya Vijay came to be rescued. Smt.D Anasuya, in-charge Superintendent - BWS&SB, Chamarajasagara, Thippagondahalli Dam, Tavarekere Hobli, Bangalore South Taluk lodged a complaint on these lines, which complaint came to be registered in Crime No.403/2006 against the petitioners herein by arraigning them as accused Nos.1 to 5 and on completion of investigation, charge sheet has been filed in C.C.No.263/2017 before the II Additional Civil Judge (Jr.Dn) & JMFC, Magadi Taluk, Ramanagara District for the offence punishable under section 304 IPC read with section 34 IPC. Hence, petitioners are seeking for quashing of the final report/charge sheet in C.C.No.263/2017.

2. In view of charge sheet having been filed for the offence punishable under section 304 read with section 34 ipc, the jurisdictional Magistrate by order dated 24.07.2017 has committed the case to the Sessions Judge and it has been numbered as S.C.No.77/2017 and now pending on the file of II Additional District & Sessions Judge, Ramanagara.

3. Heard the arguments of Sriyuths Murthy Dayanand Naik, learned Advocate appearing on behalf of Sri Pavana Chandra Shetty for petitioners and Sri Rachaiah, learned HCGP appearing for respondent- State. Perused the records.

4. It is the contention of Sri Murthy Dayanand Naik, learned Advocate appearing for petitioners that complaint allegations do not make out alleged offence under Section 304 IPC and a perusal of same would clearly disclose that it is a case of alleged negligence and there being no ingredients of causing death with such an intention, prosecution is not justified in falsely implicating petitioners for the said offence. He would also draw the attention of the Court to the permissions granted by the statutory authorities to shoot the film and also contend that even the parents or relatives of the deceased have not alleged that petitioners had caused the death and as such there is no offence punishable under Section 304 IPC.

4.1. He would elaborate his submission by contending that incident had taken place under the principle of Act of God and not under the offence of culpable homicide not amounting to murder. He would submit that deceased were stunt artists as certified by their Registered Association and in view of the fact of Association having cleared the responsibility of the stunt Director, he cannot be implicated for the said offence.

4.2. He would also submit that ingredients of Section 304 IPC is not made out by the Investigating Officer, no weapon or articles have been used to cause the death and there was no assault against deceased persons, as such, question of offence under Section 304 IPC having been committed by petitioners would not arise. He would further submit that there was no intention on the part of the petitioners to kill deceased Sriyuths Uday and Anil and there was no criminal act whatsoever committed by the petitioners for being charged for the offence punishable under Section 304 IPC and at the most, it may be a case of contributory negligence.

4.3. He would also contend that for an offence under Section 304 IPC to be made out, following ingredients are to be satisfied:

(1) it must be sudden fight;

(2) there must be pre-meditation;

(3) the act was must in a heat of passion;

and

(4) the assailant had taken undue advantage or acted in a cruel manner.

He would contend that in the instant case there was no motive or intention on the part of the petitioners to commit the alleged offence and the deceased at the time of jumping from Helicopter to the tank had not taken safety jacket and had preferred to jump from the Helicopter without safety jacket and as such, implicating petitioners for the offence punishable under Section 304 IPC is erroneous and bad in law. He would also contend that cognizance has been taken by the jurisdictional Magistrate without examining the material on record and in the absence of any finding recorded with regard to his satisfaction, the proceedings culminating in taking cognizance is liable to be set aside and as such, he prays for quashing the same.

4.4. He would further contend that cognizance of an offence can be taken only once and not twice and submits in the instant case both the learned Magistrate as well as Sessions Court have taken cognizance and same is impermissible in law.

4.5. He would also further contend that order sheet of C.C.No.263/2017 would disclose that order dated 25.04.2017 taking cognizance is passed by the Chief Administrative Officer/Chief Ministerial Officer (CAO/CMO) of the said Court and the learned Magistrate has only affixed his signature beneath the same and has not passed an order taking cognizance or summoning the accused and also draws the attention of this Court to the illegality committed by the learned Sessions Judge in S.C.No.77/2017 on 15.09.2017 contending that order of taking cognizance and issuing summons has been passed by the CAO/CMO of the said Court and there is no order of the Sessions Court taking cognizance. Hence, he prays for quashing the entire proceedings. He further submits that application of mind before taking cognizance of an offence is sine-qua- non and opinion is to be formed by due application of mind, which is lacking from the material on record. Hence, he prays for quashing the proceedings. In support of his submissions, he has relied upon the following judgments:

(i) (1998)5 SCC 749 [LQ/SC/1997/1443] PEPSI FOODS LTD. & ANOTHER vs SPECIAL JUDICIAL MAGISTRATE & OTHERS

(ii) (2009)6 SCC 475 [LQ/SC/2009/1272] KEKI HORMUSJI GHADRA AND OTHERS vs MEHERVAN RUSTOM IRANI AND ANOTHER

(iii) (2005)1 SCC 568 [LQ/SC/1991/569] STATE OF ORISSA vs DEBENDRA NATH PADHI

(iv) (2004)7 SCC 338 [LQ/SC/2011/864] ADALAT PRASAD vs ROOPLAL JINDAL & OTHERS

(v) (2006)7 SCC 296 [LQ/SC/2000/1246] POPULAR MUTHAIAH vs STATE REPRESENTED BY INSPECTOR OF POLICE

(vi) (2014)6 SCC 173 [LQ/SC/1996/1500] SUSHIL ANSAL vs STATE THROUGH CENTRAL BUREAU OF INVESTIGATION

(vii) (2014)2 SCC 62 [LQ/SC/1992/63] SARAH MATHEW vs INSTITUTE OF CARDIO VASCULAR DISEASES

(viii) (2015)4 SCC 609 [LQ/SC/1993/757] SUNIL BHARTI MITTAL vs CENTRAL BUREAU OF INVESTIGATION

(ix) (2015)12 SCC 420 [LQ/SC/2015/503] MEHMOOD UL REHMAN vs KHAZIR MOHAMMED TUNDA & OTHERS

(x) ILR 2003 KAR 4849 DALJITH SINGH GHAI AND ANOTHER vs. STATE OF KARNATAKA BY THE STATION HOUSE OFFICER, WADI POLICE STATION, GULBARGA DISTRICT

(xi) (1996)6 SCC 129 [LQ/SC/1998/675 ;] ">6 SCC 129 [LQ/SC/1998/675 ;] [LQ/SC/1998/675 ;] ">6 SCC 129 [LQ/SC/1998/675 ;] ">6 SCC 129 [LQ/SC/1998/675 ;] [LQ/SC/1998/675 ;] [LQ/SC/1998/675 ;] KESHUB MAHINDRA vs STATE OF M.P.

(xii) (2015)3 SCC 123 [LQ/SC/1984/129] SANJAYSINH RAMRAO CHAVAN vs DATTATRAY GULABRAO PHALKE AND OTHERS

(xiii) (2016)6 SCC 680 [LQ/SC/2010/408] BALVEER SINGH AND ANOTHER vs STATE OF RAJASTHAN & ANOTHER

5. Per contra, Sri Rachaiah, learned HCGP appearing for respondent-State would support the filing of charge sheet against the petitioners for the offence punishable under Section 304 IPC and contends that said provision is attracted even in case of the act by which the death is caused is done with the intention of causing death, or of causing bodily injury as is likely to cause death and such act is attributable to the knowledge of the accused that it is likely to cause death and in the instant case, the petitioner-accused knew that stunt acts would result in death of Sriyuths Uday and Anil and as such, there is no infirmity in the petitioners having been implicated for the offence punishable under Section 304 IPC and charge being framed for the said offence by the jurisdictional Sessions Court. He would also submit that for taking cognizance of an offence, no detailed order would be required to be passed by the jurisdictional Court and as such, there is no infirmity in the order taking cognizance of the offence.

5.1. He would further elaborate his submission by contending that section 190 of the code empowers the Magistrate to take cognizance of any offence even in respect of an offence triable by a Court of session, on committal to the Court of Session by the Magistrate and section 193 of the code enables the Court of Session to take cogzniance as a Court of original jurisdiction and thus, cognizance of the offence is taken in the instant case by the Sessions Court and as such any order passed by the Magistrate by committing the case to the Court of Session would not amount to taking cognizance of the offence. Hence, he contends that in the instant case there is no illegality or irregularity committed by the Courts below. Hence, he prays for rejection of the petition. In support of his submission he has relied upon the following judgments:

i. (2014) 3 SCC 306 [LQ/SC/2013/781] : DHARAM PAL AND OTHERS vs. STATE OF HARYANA AND ANOTHER

ii. (2012) 12 SCC 406 [LQ/SC/2012/861] : AJAY KUMAR PARMAR vs. STATE OF RAJASTHAN

iii. (2016) 6 SCC 680 [LQ/SC/2016/681] : BALVEER SINGH & ANR. vs. STATE OF RAJASTHAN & ANR.

iv. (1993) 2 SCC 16 [LQ/SC/1993/26] : KISHUN SINGH AND OTHERS vs. STATE OF BIHAR

6. Having heard the learned Advocates appearing for parties and on perusal of material on record, case laws relied upon, this Court is of the considered view that following points would arise for consideration:

(i) Whether cognizance of the offence alleged against petitioners is taken in accordance with law

(ii) Whether the learned Sessions Judge was correct and justified in framing a charge against the accused persons for the offence punishable under Section 304 IPC

OR

Whether the charge sheet material does not disclose an offence punishable under Section 304 IPC at all

7. In order to examine the above raised contentions, this Court is of the considered view that section 190, 193 of cr.p.c. and section 304 of ipc are required to be noticed and they are extracted herein below:

190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

193. Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

A Court of Session to which a case is committed for trial by Magistrate can, without itself recording evidence, summon a person not named in Police Report under sections 173 Cr.P.C. (though named in F.I.R.) to stand trial along with those already named therein such power is under section 193 of the code and not under section 319 of the code;

304. Punishment for culpable homicide not amounting to murder:- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

8. The expression taking cognizance is not defined under the Code. A plain and dictionary meaning thereof is, taking note of, taking account of, to know about, to gain knowledge about, etc. The term cognizance would mean taking judicial notice by a Court of law, possessing jurisdiction, on a cause of matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially.

9. The Honble Apex Court in the case of R.R.CHARI VS. STATE OF U.P. reported in AIR 1951 SC 207 [LQ/SC/1951/21] has held:

Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of offence.

Thus, the procedure of taking cognizance would start with application of judicial mind to the material, oral and documentary as well as other information submitted before it.

10. section 2(c) and 2(f) of the code defines the expression cognizable offence and non cognizable offence. In the following cases the Honble Apex Court has explained the scope and ambit of the term cognizance as under:

(a) AIR 1976 SC 1672 [LQ/SC/1976/214] :

DEVRAPALLI LAKSHMINARAYANA REDDY AND OTHERS vs. V. NARAYANA REDDY

14. This raises the incidental question: What is meant by taking cognizance of an offence by the Magistrate within the contemplation of Section 190 This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.

17. Section 156(3) occurs in Chapter XII, under the caption: Information to the Police and their powers to investigate; while Section 202 is in Chapter XV which bears the heading Of complaints to Magistrate. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Sec. 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre- cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Sec.156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.

(b) (1993) 2 SCC 16 [LQ/SC/1993/26] :

KISHUN SINGH AND OTHERS vs. STATE OF BIHAR

Sessions Court has jurisdiction, on committal of a case to it, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record - Hence on committal under S.209, Sessions Judge justified in summoning, without recording evidence, the appellants not named in police report under S.173 to stand trial along with those already named therein. Sessions Court having jurisdiction under S.193, mere exercise of power under a wrong provision (S.319) would not render its order invalid.

On committal, the restriction on the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. The object of Section 190 is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be take by the police. Even though the expression take cognizance is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. Cognizance is in regard to the offence, not the offender.

(c) (1995) 1 SCC 684 [LQ/SC/1994/1115] :

STATE OF W.B. AND ANOTHER VS. MOHD. KHALID

Another section 190 of the code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word cognizance indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. It has, thus, reference to the hearing and determination of the case in connection with an offence.

(d) (2006) 6 SCC 728 [LQ/SC/2006/687] :

STATE OF KARNATAKA AND ANOTHER vs. PASTOR P. RAJU

Several provisions in Chapter XIV of the Criminal Procedure Code use the word cognizance. However, the word cognizance has not been defined in the Criminal Procedure Code. The dictionary meaning of the word cognizance is judicial hearing of a matter. Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.

Thus, it would emerge from the above case laws that there cannot be any straight jacket formula to define the expression taking cognizance and it merely means judicial application of mind by the Magistrate/ Sessions Judge on the basis of the material available before it with a view to take further judicial action.

11. Apart from the aforesaid position of law explained by the Honble Apex Court, in the case of SUNIL BHARATHI MITTAL vs. CBI reported in (2015) 4 SCC 609 [LQ/SC/2015/34] the Apex Court has held it is imperative that on a complaint or on a police report, Magistrate is bound to consider the question as to whether same discloses commission of an offence and it is required to form such an opinion in this respect. It has also been held that the Magistrate is empowered to ignore the conclusion arrived at by the investigation officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. It has been held:

48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.

49. cognizance of an offence and prosecution of an offender are two different things. section 190 of the code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards.

50. Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under section 190 of the code. There is no question of applicability of section 319 of the code at this stage (see SWIL Ltd. v. State of Delhi). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (see Union of India v. Prakash P. Hinduja). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.

12. Based on the legal position declared by the Honble Apex Court referred to hereinabove, when the facts on hand are examined it would disclose that on 07.11.2016 accused No.1 as producer of the Kannada film Mastigudi was shooting for the said film along with the director accused No.2 - assistant directors - accused Nos.3 and 5 and the stunt director accused No.4 and hero of the film Sri.Duniya Vijay along with two co-actors Sriyuths Anil and Uday at Thippagondenahalli lake. Said actors jumped from the helicopter to the water, as a result of which the co- actors died due to drowning. Whereas hero of the film Sri.Duniya Vijay who also jumped to the lake came to be rescued. In the light of their death, complaint came to be lodged by the Assistant Engineer - BWS & SB, Thippagondanahalli, on 07.11.2016 at about 6.30 p.m., which came to be registered as Cr.No.403/2016 for the offence punishable under Sections 188, 304 r/w Section 34 IPC. The order sheet of II Addl. Civil Judge & JMFC is produced as Document No.4. A perusal of the same would disclose that following entry came to be made:

FIR No.403/2016 Police Station: TAVREKERE PS

Nature of Case: Criminal Case

Provision of Law: 304 r/w 34 IPC

Date of Filing: 25-04-2017

Relief:

The Police Inspector of District Crime Branch, Special Police station, Ramanagara district, Ramanagara, has submitted the charge sheet (Page No.1 to 450 along with 6 sets of accused copies) in Cr.No.403/2016 of Tavarekere Police against the accused no.1 to 6 for the punishable under section 304 r/w 34 of IPC through Public prosecutor, Ramanagara on 25-04-2017.

FIR in Cr.No.403/2016 and connected papers are herewith put up, cognizance for the offence stated in the charge sheet are taken. Office to register the Criminal Case against the accused No.1 to 6.

Accused No.1 to 5 are in Court hall,

Accused No.6 is Absconding.

Issue summons A1 to 5 and NBW to Accused no.6.

Date of Cause of Action: 07-11-2016.

Sd/-

CAO/CMO

Registered and Putup/Made Over this case to the II Addl. CIVIL JUDGE AND JMFC court for disposal according to law.

Sd/-

Prl.CIVIL JUDGE AND JMFC, MAGADI

RAMANAGARAM

13. After investigation charge sheet came to be filed on 25.04.2017 in C.C.No.263/2017 against the petitioners for the offence punishable under Section 304 r/w Section 34 IPC before the jurisdictional Magistrate. The learned Magistrate acting under section 209 of cr.p.c. committed the case in C.C.No.263/2017 to the jurisdictional Sessions Court. Same has been registered in S.C.No.77/2017 and the order sheet in sessions case in S.C.No.77/2017 would disclose the following entry:

FIR No. : 403/2016 Police Station: TAVREKERE PS

Nature of Case: Session Case

Provision of Law: I.P.C. 304, 34

Date of Filing : 15-09-2017 Date of Registration : 15-09-2017

Relief:

The IInd Addl. Civil Judge and JMFC Magadi, has submitted the Records in C.C.No.263/2017 vide Letter To. No. 1515/2017 dated 29-08-2017 and the same is received by this court on 12- 09-2017

Acting U/Sec. 209 of Cr.P.C. The IInd Addl. Civil Judge and JMFC Magadi by order dated 24-07-2017 has committed the case in C.C.No.263/2017.

The offences alleged against the accused Persons are Punishable U/Sec. 304 R/w. 34 of IPC.

Accused No.1 to 6 are on Court Bail.

Prosecution has cited 81 witness in the charge sheet.

Case properties not produced before this court.

Perused the Charge sheet and Enclosures.

Cognizance taken against the Accused No.1 and 6 for the offences punishable U/Sec. 304 R/2.34 of IPC.

Register the case as sessions case.

Date of Cause of Action : 07-11-2016

Sd/-

CAO/CMO

Registered and Putup/Made Over this case to the .............................. court for disposal according to law.

Sd/-

PRL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA

RAMANAGARAM

Thus, it could be seen from the order sheet of the learned Magistrate as well as the order sheet of learned Sessions Judge that cognizance has been taken by both the Courts and that too by the Chief Administrative Officer/Chief Ministerial Officer. As rightly pointed out by the learned counsel appearing for petitioners, learned Magistrate / learned Sessions Judge have affixed their respective signatures beneath the order passed by CAO/CMO. Thus, order of taking cognizance, prima facie is by the Chief Administrative Officer or Chief Ministerial Officer and not by the Presiding Officers of respective Courts. Same would also disclose there has been no application of judicial mind at the time cognizance was taken. There must be sufficient indication in the order passed by the Magistrate / Sessions Judge that he is satisfied that the material on record would disclose an offence is made out against accused for being proceed with and such application of mind requires to be demonstrated by disclosure of mind on such satisfaction, since to set into motion the process of criminal law against a person is a serious matter. It is no doubt true that law does not mandate there should be a reasoned order at the stage of taking congnizance. The Court taking cognizance is not required to discuss the material available before it at the time of taking cognizance of the offence. It is not the innocence but involvement which would be the material fact required to be considered at the stage of taking cognizance of the offence.

14. Honble Apex Court in the following cases has held that it is quite unnecessary to write detailed orders at the stage of issuing process or in other words, it is not necessary to pass a speaking order at the stage of taking cognizance:

(i) (2000) 1 SCC 722 [LQ/SC/2000/21] : KANTI BHADRA SHAH AND ANR VS STATE OF WEST BENGAL

(ii) (2000) 3 SCC 745 [LQ/SC/2000/561] : U.P POLLUTION CONTROL BOARD V. MOHAN MEAKINS LTD. AND OTHERS

(iii) (2003) 4 SCC 139 [LQ/SC/2003/325] : DY. CHIEF CONTROLLER OF IMPORTS & EXPORTS VS. ROSHANLAL AGARWAL & ORS.

15. The law came to reinstated by the Honble Apex Court in JAGDISH RAM vs STATE OF RAJASTHAN reported in (2004) 4 SCC 432 [LQ/SC/2004/315] holding that at the stage of issuing process to accused, the Magistrate is not required to record the reasons and at this stage, Magistrate has to be satisfied whether there is sufficient ground for proceeding against the accused.

16. In the light of abovestated discussion and the fact that order of Magistrate / learned Sessions Judge not disclosing about either Magistrate or learned Sessions Judge taking cognizance on application of judicial mind but on the other hand order sheet disclosing that act of taking cognizance has been undertaken by the CAO/CMO of the respective Courts, it has to be necessarily held as bad in law. Hence, order under challenge cannot be sustained. In view of the same, Point No.1 answered in the negative.

17. The incidental question that would arise for consideration is:

Whether matter requires to be remitted to the jurisdictional Magistrate or jurisdictional Sessions Court

18. In view of the fact that prosecution has invoked Section 304 of IPC against accused and same being a cognizable offence triable by a Court of session, it would be apt and appropriate to remit the matter to the jurisdictional Sessions Court for consideration afresh instead of remitting the matter to the learned Magistrate. Yet another reason for remitting the matter to the learned Sessions Judge is on account of offence alleged against petitioners if found to be not falling under Section 304 of IPC as contended by petitioners, but on the other hand, it would fall under Section 304- A, which would be triable by the Magistrate of I Class, then necessarily Sessions Court would remit the matter to the jurisdictional Magistrate to proceed in accordance with law.

19. In the light of Point No.1 having been answered in the negative, adjudication on Point No.2 would not arise and no opinion is expressed in that regard. Contentions of both parties are kept open.

20. Hence, I proceed to pass the following:

Order

(i) Criminal petition is hereby allowed in part.

(ii) Order dated 25.04.2017 passed in C.C.No.263/2017 by the Prl. Civil Judge & JMFC, Magadi and order dated 15.09.2017 passed in S.C.No.77/2017 by the Prl. District and Sessions Judge, Ramanagara, are hereby set aside and the matter i.e., S.C.No.77/2017 is remitted back to District and Sessions Judge, Ramanagara, for proceeding in the matter in accordance with law keeping in mind the observations made hereinabove.

(iii) It is made clear that no opinion is expressed with regard to merits of the case, inasmuch as, learned Sessions Judge would be at liberty to examine this aspect also.