IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7473/2015 BETWEEN GIRISH S/O SRINIVASA GOWDA, AGED ABOUT 36 YEARS, OCC: SUB INSPECTOR OF POLICE, UDUPI PERMANENT R/O SARAHALLI VILLAGE, ALDUR HOBLI, CHIKKAMAGALURU TALUK – 577 111. ... PETITIONER (BY SRI RAVINDRA B DESHPANDE, ADV.) AND 1. THE STATE OF KARNATAKA BY ALDUR POLICE STATION, CHIKKAMAGALURU DISTRICT - 577 111.
2. D.D CHANDREGOWDA S/O DEVEGOWDA, AGED ABOUT 53 YEARS, OCC: AGRICULTURIST, R/O DONGUDIGE VILLAGE, ALDUR HOBLI, TALUK AND DISTRICT CHIKKAMAGALURU - 577 111. ... RESPONDENTS (BY SRI I.S.PRAMOD CHANDRA, SPP-II FOR R-1, SRI S.VISWESWARAIAH, ADV. FOR R-2.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.03.2015 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN CR.R.P.No.198/2013 CONFIRMING THE ORDER DATED 12.03.2013 IN C.C.No.283/2013 (P.C.R.No.537/2008) PASSED BY THE PRL.CIVIL JUDGE AND J.M.F.C. COURT, CHIKKAMAGALURU AND QUASH THE ENTIRE PROCEEDINGS IN C.C.No.283/2013 PENDING ON THE FILE OF PRL. CIVIL JUDGE (Jr.Dn) AND J.M.F.C. COURT, CHIKKAMAGALURU AGAINST THE PETITIONER CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioner and learned SPP-II for respondent no.1.
Counsel for the respondent no2. is absent.
The petitioner has sought to quash the proceedings initiated against him in CC No.283/13 (P.C.R No.537/2008) pending on the file of Prl.Civil Judge and JMFC, Chikkamagaluru for the offences punishable under Sections 379, 323, 324, 307 and 506 read with Section 34 of IPC.
2. Though the petitioner has raised large number of contentions in the petition, learned counsel for the petitioner has confined his submission to the issue of taking cognizance by the learned Magistrate. Referring to the order sheet maintained by the learned Magistrate in PCR No.537/18, the learned counsel for the petitioner has pointed out that, on receiving the complaint on 3.12.2008, learned Magistrate referred the same to CPI, Rural Police Station, Chikmagalur for investigation and report under Section 156(3) of the Code. After investigation, B-report was submitted on 22.2.2010 and on 24.7.2010, the complainant filed his objections, but, without taking cognizance of the offences, learned Magistrate posted the matter to record the sworn statement. On 23.7.2011 the sworn statement of the complainant was recorded, Ex.C1 to C7 were marked. Thereafter, the matter was adjourned for further sworn statement of witnesses.
3. On 4.1.2013 and 2.2.2013, two witnesses were examined on behalf of the complainant. By order dated 12.03.2013, the ‘B’ report submitted by the I.O for the offences under Sections 379, 323, 324, 506 read with Section 34 of IPC was rejected and for the offence under section 307 of IPC, the said report was accepted.
4. Learned counsel for the petitioner has assailed the procedure followed by the learned Magistrate contending that it 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.
5. 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.”
6. As the learned Magistrate has failed to follow the procedure as laid down in the above decision, the impugned order dated 12.03.2013 cannot be sustained. It is also noticed that, the learned Magistrate has proceeded with the matter, without taking cognizance of the offences.
7. For the above reasons, the impugned proceedings cannot be sustained. Consequently, the petition is allowed.
The proceedings in CC No.283/2013 pending on the file of the Principal Civil Judge and JMFC, Chikkamagaluru are quashed and 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 contentions urged by the parties are left open.
Sd/- JUDGE Sk/- AN CT-HR