IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4330/2014 BETWEEN:
DR. K.S. ANAND S/O. SRI. K.G. SATYANARAYANA AGED ABOUT 39 YEARS SRI KAMAKSHI CLINIC HEBBUR VILLAGE TUMKUR DISTRICT-572 101. ... PETITIONER (BY SRI. M PRAKASHA, ADV. FOR SRI. N.R. NAIK, ADV.) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS STATION HOUSE OFFICER HEBBUR POLICE STATION HEBBUR TUMKUR DISTRICT-572 101.
2. THE KARNATAKA AYURVEDIC & UNANI PRACTITIONER’S BOARD DHANVANTARI ROAD BANGALORE CITY-560 001. REPRESENTED BY ITS REGISTRAR. ... RESPONDENTS (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1 SRI. O. SHIVARAMA BHAT, ADV. FOR R2) THIS CRL.P IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.11.2013 TAKING COGNIZANCE OF THE OFFENCE UNDER SECTION 36 OF KARNATAKA AYURVEDIC NATUROPATHY, SIDDHA, UNANI AND YOGA PRACTITIONER’S REGISTRATION AND MEDICAL PRACTITIONER’S MISCELLANEOUS PROVISIONS ACT, 1961 AGAINST THE PETITIONER AFTER RECORDING THE SWORN STATEMENT PROTESTING THE “B” REPORT SUBMITTED BY THE FIRST RESPONDENT AUTHORITIES AND REGISTERED C.C.NO.313/2014 ON THE FILE OF THE C.J. (JR.DN.) AND JMFC, TUMKUR VIDE ANNEXURE-T AND TO DIRECT THE “B” REPORT SUBMITTED BY THE AUTHORITIES.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioner and the counsel for the respondents. Perused the records.
2. Though the petitioner has urged various grounds in the petition challenging the issuance of summons to the petitioner, but on perusal of the order dated 16.11.2013, it is noticed that without rejecting the ‘B’ summary report the learned Magistrate has proceeded to record the sworn statement of the complainant and his witness and considering the said material has issued summons to the petitioner. This procedure is contrary to the guidelines laid down by the Hon’ble Supreme Court in ‘KAMALAPATI 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 wherein it is held as under:-
“5. xxxxxxxxxxxxxxxx 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.”
3. As the learned Magistrate has failed to follow the procedure laid down in the above decisions, the impugned order passed by the learned Magistrate directing summons to the petitioners cannot be sustained.
4. Accordingly, the petition is allowed. The impugned order dated 16.06.2014 and all consequent proceedings arising therefrom are quashed. The matter is remanded to the learned Magistrate to consider the ‘B’ summary report afresh in the light of the guidelines laid down in the aforesaid decision. All contentions urged by the parties are left upon for consideration at the appropriate stage.
Sd/- JUDGE *alb/-.