IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No. 6194 OF 2015 BETWEEN:
MR.IVAN A.MONTEIRO, CHIEF MECHANICAL ENGINEER, NMPT, PANAMBUR, NEW MANGALORE – 575 010.
(BY SRI.SUBRAMANYA.R, ADV) AND 1. MR.RAMESH NAIK, S/O LATE SANNAYA NAIK, AGED ABOUT 50 YEARS, ASSISTANT SUPERINTENDENT, CME’S OFFICE, NMPT, PANAMBUR, MANGALORE- 575 010.
2. STATE, REPRESENTED BY SPECIAL POLICE, PENAMBUR POLICE STATION, MANGAORE-575 010.
... PETITIONER ... RESPONDENTS (BY SRI.VIJAYA KUMAR MAJAGE, ADDL.SPP FOR R2, SRI. R.B.DESHPANDE, ADVOCATE FOR R1) THIS CRL.PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 20.01.2015 (ANNEXURE-A) PASSED BY THE LEARNED THE 2ND ADDL. DISTRICT AND SPECIAL JUDGE, D.K., MANGALURU AND CONSEQUENTLY QUASH THE COMPLAINT IN CRIME NO.21/2013 OF PANAMBUR POLICE STATION, MANGALURU AGAINST THE ACCUSED BY ALLOWING THE INSTANT PETITION.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER Heard learned counsel for the petitioner, learned counsel for respondent No.1 and Addl.SPP for respondent No.2. Perused records.
2. Petitioner is aggrieved by order dated 20.01.2015 passed by the II Addl. District and Special Judge, D.K., Mangalore in Crime No.21/2013, whereby learned Magistrate has taken cognizance of the offences under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 and Section 504 of IPC and issued summons to the petitioner.
3. The impugned order passed by the learned Magistrate is contrary to the guidelines issued 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 and 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.”
4. As the learned Magistrate has failed to follow the procedure as laid down in the above decision, the impugned order dated 20.01.2015 passed by the learned Magistrate directing summons to the petitioner cannot be sustained. Matter is remitted to the learned II Addl. District and Special Judge for reconsideration of B- Summary report in the light of the guidelines issued in the above decision.
5. All other legal and factual contentions urged by the parties are left open to be agitated by the parties at the appropriate stage.
Accordingly, petition is allowed.
Sd/-
JUDGE ln.