IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7681 OF 2017 BETWEEN:
1. SMT. GAYATHRI N NAYAK W/O SANJEEVA NAYAK AGED ABOUT 37 YEARS PRESENTLY WORKING AS ASST. COMMISSIONER, REVENUE MANGALORE CITY CORPORATION D.K.DISTRICT -575003.
2. SRI JAYARAM D GOWDA S/O SRI D M GOWDA AGED ABOUT 47 YEARS PRESENTLY WORKING AS POLICE INSPECTOR ACB, UDUPI UDUPI DISTRICT 576210.
3. SMT. YASHODHA S VANTAGODI W/O SRI SUNIL VANTAGODI AGED ABOUT 36 YEARS PRESENTLY WORKING AS SP HESCOM, VIGILANCE, HUBLI-580023.
... PETITIONERS (BY SRI.K.SHASHI KIRAN SHETTY, SR.ADV. A/W SRI. K PRASANNA SHETTY, ADV.) AND:
1. STATE OF KARNATAKA BY KUNDAPURA PS KUNDAPURA CIRCLE UDUPI DISTRICT- 576201 REP. BY THE OFFICE OF THE SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001.
2. SRI RAMESH S/O LATE PANJU AGED ABOUT 32 YEARS R/O TT ROAD, VADERA HOBLI KUNDAPURA TALUK UDUPI DISTRICT-576101.
... RESPONDENTS (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP. FOR R1 SMT.NEERAJA KARANTH ADV. FOR SRI.K.SHRIHARI, ADV. FOR R2) THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN P.C.R.NO.5/2013 PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI REGISTERED FOR THE OFFENCE P/U/S 4 OF SC/ST (PREVENTION OF ATROCITIES) ACT AS AGAINST THE PETITIONERS HEREIN CONSEQUENT TO THE ORDER DATED 01.09.2017 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI IN P.C.R.NO.5/2013 AS AGAINST THE PETITIONERS HEREIN.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned Senior Counsel for petitioners and the learned Additional SPP for respondent No.1 and learned counsel for respondent No.2-complainant.
Perused the records.
2. Petitioners are aggrieved by the order passed by the Special Judge in PCR No.5/2013 taking cognizance of the offences against the petitioners under Section 4 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. The substance of accusations against the petitioners are that petitioner No.1 (A7) being the Tahsildar, Kundapura received an application submitted by the complainant seeking grant of land earmarked for the depressed classes, but neglected to process the said application. Petitioner No.2 (A9) was the Sub Inspector and Petitioner No.3 (A10) was the Deputy Superintendent of Police of Kundapura Sub Division at the relevant time. It was alleged that the complaint filed by respondent No.2 herein before A9 and A10, regarding the inaction of the Tahsildar in processing the application, was also not inquired into by A9 and A10. With these allegations, respondent No.2 filed a private complaint under Section 200 of Cr.P.C. seeking action against the petitioners for the above offences. The learned Special Judge referred the complaint for investigation under Section 156(3) of Cr.P.C. After investigation, police submitted a ‘B’ summary report. Respondent No.2 filed a protest petition. The learned Special Judge recorded the sworn statement of the complainant and by the impugned order dated 1.9.2017 rejected the ‘B‘ summary report and issued summons to the petitioners to face trial for the offence under Section 4 of the Act.
4. Learned Senior Counsel appearing for the petitioners submitted that the allegations made in the complaint do not attract the ingredients of Section 4 of the Act. The Tahsildar had promptly processed the application, survey of the property was carried out, but since other applications were pending seeking grant of very same land, orders were not passed. Insofar as A9 and A10 are concerned, the learned Senior Counsel emphasized that after submission of the complaint by respondent No.2, a report was obtained by the Deputy Superintendent of Police to the effect the dispute was civil in nature and accordingly, the complaint was closed and ‘B’ summary report was submitted. In the said circumstance, there was no cause of action for the respondents to proceed against A9 and A10 under Section 4 of the Act.
5. Refuting the above contentions, learned Counsel appearing for respondent No.2 as well as learned Additional SPP for respondent No.1-State, argued in support of the impugned action contending that the averments made in the complaint and the material produced in support thereof clearly disclose that the Tahsildar and police inspectors deliberately and intentionally neglected to process the application filed by respondent No.2 and with intent to aid and assist petitioners 1 and 2, his application was deliberately not processed and therefore, the ingredients of Section 4 are clearly attracted to the facts of the case and thus sought to dismiss the petition.
6. Considered the submissions and perused the record.
7. It is not in dispute that at the relevant point of time, A7 was the Tahsildar of Kundapur Taluk and A9 was the Police Inspector and A10 was the Dy.Superintendent of Kundapura Sub Division. The Special Judge has taken cognizance of the offence under Section 4 of the Act. Section 4 of the Act reads as under:-
4. Punishment for neglect of duties – (1) Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, willfully neglects his duties required to be performed by him under this Act and the rules made thereunder, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year.
(2) The duties of public servant referred to in sub-section (1) shall include – (a) to read out to an informant the information given orally, and reduced to writing by the officer in charge of the police station, before taking the signature of the informant;
(b) to register a complaint or a First Information Report under this Act and other relevant provisions and to register it under appropriate sections of this Act;
(c) to furnish a copy of the information so recorded forthwith to the informant;
(d) to record the statement of the victims or witnesses;
(e) to conduct the investigation and file charge sheet in the Special Court or the Exclusive Special Court within a period of sixty days, and to explain the delay if any, in writing;
(f) to correctly prepare, frame and translate any document or electronic record;
(g) to perform any other duty specified in this Act or the rule made thereunder;
Provided that the charges in this regard against the public servant shall be booked on the recommendation of an administrative enquiry.
(3) The cognizance in respect of any dereliction of duty referred to in sub-section (2) by a public servant shall be taken by the Special Court or the Exclusive Special Court and shall give direction for penal proceedings against such public servant.
8. Sub Section (1) of the Section 4 of the Act, prescribes that whoever being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, willfully neglects to perform his duties required to be performed by him under this Act and the rules made thereunder, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year. Sub section (2) specifies the duties of public servant referred to in sub-section (1). These provisions therefore are applicable to the duties performed by the Police Inspector and not by the Tahsildar. Even otherwise, as per the proviso to the said section, no charges against the public servant could have been booked under this section, without the recommendation of an administrative enquiry.
9. In the instant case, learned Sessions Judge has proceeded to issue summons to the petitioners based on the sworn statement of the complainant, without there being any recommendation of an administrative enquiry.
10. There is nothing on record to show that any administrative enquiry has been held against the petitioners. This proviso in effect operates as a safe-guard for the public servant against any false and frivolous prosecution. It is couched in a mandatory language; non-compliance of which would preclude the Special Court from proceeding against a public servant for the offence under Section 4 of the Act. Therefore, solely on this ground the impugned order is liable to be set aside.
11. Apart from the above, on going through the impugned order passed by the learned Magistrate, I find that the learned Magistrate has failed to follow the guidelines laid by the Hon’ble Supreme Court in Kamalapati Trivedi Vs. State of West Bengal, which is followed by this Court in Dr. Ravi Kumar Vs. Mrs. KMC Vasantha & another, 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.”
12. For these reasons, the impugned order passed by the learned Special Judge is liable to be quashed. Accordingly, the writ petition is allowed. The proceedings in P.C.R.No.5/2013 pending on the file of the Principal District & Sessions Judge, Udupi are quashed.
Liberty is reserved to the concerned to proceed against the petitioners after an administrative enquiry as contemplated under Section 4 of the Act, if found necessary. All the factual and legal contentions are kept open for consideration at the appropriate stage.
Sd/- JUDGE rs