IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 7132/2015 BETWEEN:
1. M/S CHAROEN POKPHAND SEEDS, (INDIA) PRIVATE LIMITED, NO.1021, SERVICE ROAD, GEETHANJALI LAYOUT, NEW THIPPASANDRA, HAL 3RD STAGE, BANGALORE – 560075, REPRESENTED BY ITS DIRECTOR, MR. SAYAN HONGSA.
2. MR. SAYAN HONGSA, DIRECTOR, M/S CHAROEN POLPHAND SEEDS, (INDIA) PRIVATE LIMITED, NO.1021, SERVICE ROAD, GEETHANJALI LAYOUT, NEW THIPPASANDRA, HAL 3RD STAGE, BANGALORE – 560075.
3. MR. METHAR PHETBORRISUTH GENERAL MANAGER, (INDIA) PRIVATE LIMITED, NO.1021, SERVICE ROAD, GEETHANJALI LAYOUT, NEW THIPPASANDRA, HAL 3RD STAGE, BANGALORE – 560075.
(BY SRI. R B NAIK, SENIOR COUNSEL) …PETITIONERS AND:
1. STATE OF KARNATAKA, BY BASAVANAGAR POLICE STATION, DAVANAGERE, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE – 560001.
2. SRI. V. G. SHANTHARAM, S/O GANESHAPPA VITTALKAR, AGED ABOUT 40 YEARS, PROPRIETOR, AMRUTHESHWARI AGRO AGENCIES, DOOR NO.663/1, MANDIPET, DAVANAGERE – 577 001.
... RESPONDENTS (BY SRI. VIJAYAKUMAR MAJAGE, ADDL SPP FOR R1) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING TO A) QUASH THE ORDER DATED 04.06.2015 PASSED BY THE JUDICIAL MAGISTRATE, FIRST CLASS-II, DAVANAGERE IN P.C.R.NO.818/2013 AND SUBSEQUENTLY REGISTERED AS C.C.NO.483/2015 ANNEXURE-‘A’ TAKING CONGNIZANCE AGAISNT THE PETITIOENRS FOR THE OFFENCE P/U/S 107, 120(A), 120(B),403,405,406,415,418 AND 420 OF I.P.C. AND ISSUING PROCESS TO THE PETITIONERS AND B) CONSEQUENTLY STOP FURTHER PROCEEDINGS AND DISCHARGE THE PETITIONERS IN C.C.NO.483/2015 PENDING ON THE FILES OF JUDICIAL MAGISTRATE, FIRTST CLASS-II, DAVANAGERE.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri Ravi B.Naik, learned Senior Counsel appearing for the petitioners and Sri Vijaykumar Majage, learned S.P.P. appearing for respondent No.1. Counsel for respondent No.2 is absent.
2. Petitioners have challenged the order dated 04.06.2015 passed by JMFC-II, Davanagere in P.C.R.No. 818/2013, whereby the learned Magistrate has rejected the ‘B’ Summary Report submitted by the P.S.I, Basavanagar Police Station and has also taken cognizance of the offences punishable u/s. 107, 120-A, 120-B, 403, 405, 406, 415, 418 and 420 of I.P.C.
against the petitioners.
3. The learned Senior Counsel appearing for the petitioners at the outset has pointed out that the impugned order is contrary to the guidelines laid down by the Hon’ble Supreme Court in the case of ‘KAMLAPATI TRIVEDI v. STATE OF WEST BENGAL’ reported in 1980 (2) SCC 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.
4. In the above decision, 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.”
5. In view of the above, the petition is allowed. The impugned order dated 04.06.2015 is quashed.
The matter is remitted to the learned Magistrate for consideration of the matter afresh in terms of the guidelines laid down in the aforesaid decision. All other contentions urged by the parties are left open.
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JUDGE Snb/