IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.637/2016 C/w CRIMINAL PETITION NO.638/2016 IN CRL.P.NO.637/2016 Between:
1. Mr.B.K.Nanda Kumar, S/o late B.C.Krishnappa, Aged about 40 years, C/o Sophia School, Vajrahalli, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru – 62.
2. Mr.B.K.Nagaraj, S/o late B.C.Krishnappa, Aged about 45 years, Vajrahalli, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru – 62. … Petitioners (By Sri.P.Brijesh Patil, Advocate for Sri.P.N.Hegde, Advocate) And:
1. State of Karnataka Through Thalaghattapura PS, Represented by SPP, High Court of Karnataka, Bengaluru – 01.
2. Mr.K.Nataraj, S/o late Krishne Gowda, Aged about 47 years, No.7 & 8, 5th ‘C’ Main Road, S.G.Halli, Basaveshwaranagar, Bengaluru – 79. ... Respondents (By Sri. Vijaya Kumar Majage, Addl. SPP for R.1 and Sri.P.Prasanna Kumar, Advocate for R.2) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to set aside the order dated 26.12.2015 passed by the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.RP.No.29/2015 and consequently allow the Revision Petition by setting aside the order dated 08.04.2015 passed by the II Additional C.J.M., at Bengaluru in C.C.No.2928/2015 and etc.
IN CRL.P.NO.638/2016 Between:
1. Mr.B.K.Nanda Kumar, S/o late B.C.Krishnappa, Aged about 40 years, C/o Sophia School, Vajrahalli, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru – 62.
2. Smt.Suma, W/o B.K.Nanda Kumar, Aged about 35 years, C/o Sophia School, Vajrahalli, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru – 62.
3. Mr.B.K.Nagaraj, S/o late B.C.Krishnappa, Aged about 45 years, Vajrahalli, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru – 62. … Petitioners (By Sri.P.Brijesh Patil, Advocate for Sri.P.N.Hegde, Advocate) And:
1. State of Karnataka Through Thalaghattapura PS, Represented by SPP, High Court of Karnataka, Bengaluru – 01.
2. Smt.V.Sarala, W/o Mr.K.Nataraj, Age: Major, No.7 & 8, 5th ‘C’ Main Road, S.G.Halli, Basaveshwaranagar, Bengaluru – 79. ... Respondents (By Sri. Vijaya Kumar Majage, Addl. SPP for R.1 and Sri.P.Prasanna Kumar, Advocate for R.2) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to set aside the order dated 26.12.2015 passed by the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.RP.No.30/2015 and consequently allow the Revision Petition by setting aside the order dated 08.04.2015 passed by the II Additional C.J.M., at Bengaluru in C.C.No.2931/2015 and etc.
These Criminal Petitions coming on for admission this day, the Court made the following:
O R D E R Heard the learned counsel for the petitioners, learned counsel for respondent No.2 and learned Additional SPP for respondent No.1 in both these matters.
2. Though the petitioners have urged various grounds in the petitions, yet the petitions deserve to be allowed on account of the defect/illegality in the order passed by the learned Magistrate issuing summons to the petitioners herein.
3. Respondent No.2 herein filed complaints before respondent No.1/police. The said complaints were registered in Crime Nos.178/2012 and 366/2012 respectively. After investigation, respondent No.1 submitted ‘B’ Summary Report in both the cases.
Without considering the said ‘B’ Summary Report and without passing any orders thereon, the learned Magistrate issued summons to the petitioners. Needless to say that the procedure adopted by the learned Magistrate is contrary to the decision of the Hon’ble Supreme Court in ‘KAMLAPATI TRIVEDI v. STATE OF WEST BENGAL’ reported in [1980] SCC [2] 91 which is followed by this Court in ‘DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER’ reported in ILR 2018 KAR 1725. In the above decisions, procedure to be followed by the learned Magistrate in the matter of accepting or rejecting the ‘B’ report has been elaborately laid down as under:
“5. The procedure followed by the learned Magistrate is not in accordance with law. It is well recognized principle of law that, once the police submit ‘B’ Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of ‘B’ Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-
i) “The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.p.c, but before taking cognizance such exercise has to be done. This my view is supported by the decisions of the Hon’ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal.
ii) If the court is of the opinion that the material available in the ‘B’ Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of ‘B’ Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the ‘B’ Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of ‘B’ report, the court has to reject the ‘B’ Summary Report.
iv) After rejection of the ‘B’ Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C.”
4. It is now well settled law that only after rejecting the ‘B’ summary report, the learned Magistrate has to proceed to record the sworn statement of the complainant. The Magistrate has not followed the guidelines laid down in the above decisions.
5. Hence, both petitions are allowed. Order dated 26.12.2015 passed in CRL.R.P.No.29/2015 and CRL.R.P.No.30/2015 and order dated 08.04.2015 passed in CC No.2928/2015 and CC No.2931/2015 are hereby set-aside. Matter is remitted to the learned II Additional Chief Judicial Magistrate, Bengaluru to reconsider the ‘B’ Summary Report afresh in the light of the guidelines laid down in the above decision.
All other contentions urged by the parties are left open.
Sd/-
JUDGE NBM