IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6783 OF 2015 BETWEEN:
1. MR JAGANNATH T R AGED 61 YEARS, SON OF LATE RANGAPPA, RETIRED AS ASSISTANT COMMISSIONER OF POLICE, MANGALORE SOUTH SUB DN.
MANGALORE RESIDING AT "JAGATH" AMRITH NAGARA, PANDESHWARA, MANGALORE-575 001 2. SRI. MOHAN KUMAR AGED 42 YEARS, SON OF LATE SIDDU, PRESENTLY EMPLOYED AS HEAD CONSTABLE, MANAGALORE RURAL POLICE STATION, MANGALURU-575001.
... PETITIONERS (BY SRI: P P HEGDE, ADVOCATE) AND 1. SMT SHRIKALA K B ADULT, ASSISTANT POLICE SUB INSPECTOR, MANGALORE SOUTH POLICE STATION, MANGALURU-575001.
2. THE STATE REPRESENTED BY THE LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU 01 (BY SRI: P.KARUNAKAR, ADVOCATE FOR R1 ... RESPONDENTS I.S.PRAMOD CHANDRA, SPP-II FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.11.2014 PASSED BY THE J.M.F.C., (III COURT), MANGALURU IN P.C.No.124/2013, DIRECTING TO REGISTER CRIMINAL CASE AGAINST THE PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 354(A)(1), 504, 506, 509 R/W SEC.34 OF I.P.C. AND ISSUANCE OF SUMMONS TO THE ACCUSED PERSONS/PETITIONERS HEREIN AND ALL FURTHER PROCEEDINGS IN THE SAID CASE AND ALSO THE ORDER DATED 17.08.2015 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN CRL.R.P.No.243/2014.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners have called in question the order passed by the JMFC-III Court, Mangaluru in P.C.No.124/2013, whereby the learned Magistrate has directed registration of the case against the petitioners for the offences punishable under sections 354A(1), 504, 506, 509 r/w 34 Indian Penal Code. The said order is confirmed by the learned I Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru in Crl.R.P.No.243/2014.
2. Respondent No.1 herein filed a private complaint under Section 200 Cr.P.C. alleging commission of offences punishable under sections 354(A) (1), 504, 506, 509 r/w 34 of Indian Penal Code. Learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C. After investigation, the Investigating Officer submitted ‘B’ report. Respondent No.1 filed a protest petition and the learned Magistrate recorded the statement of the complainant and by the impugned order dated 11.11.2014, directed summons to the petitioners to face trial for the above accusations. Feeling aggrieved by the said order, the petitioners herein preferred a revision before the I Addl. District & Sessions Judge, Dakshina Kannada, Mangalore and by the impugned order, the learned Sessions Judge, Mangalore has confirmed the order passed by the learned Magistrate, Mangalore.
3. Learned counsel for the petitioners at the out-set would submit that the orders passed by the Courts below suffer from basic error, inasmuch as, both the courts below failed to consider the contents of ‘B’ report. Without rejecting the ‘B’ report, the learned Magistrate has issued summons to the petitioners, which is not in accordance with the procedure laid down by the Hon’ble Supreme Court of India 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. Learned counsel appearing for respondent No.1 however has argued in support of the impugned orders and would submit that the sworn statement of the complainant itself was sufficient to make out the offences alleged against the petitioners and hence, the learned Magistrate has not committed any error or illegality in issuing summons to the petitioners to face trial for the above offences.
Considered the submissions and perused the impugned orders.
5. On perusal of the orders passed by the learned Magistrate as well as the learned Sessions Judge, it is seen that both the Courts below have proceeded as if the sworn statement of the complainant/respondent No.1 was the only material available before the Court to proceed in the matter. The courts below have failed to consider the ‘B’ report submitted by the Investigating Officer. Undisputedly, the private complaint having been referred to investigation to the jurisdictional police, the police have taken up investigation and in the course of investigation have collected necessary material and based on the said material, an opinion was formed by the Investigating Officer to the effect that the material collected by him was not sufficient to constitute the offences alleged against the petitioners, under the said circumstances, before proceeding in the matter, it was incumbent on the trial court as well as revisional Court to consider the reasons assigned by the Investigating Officer to submit a ‘B’ report and to ascertain whether the material collected by the Investigating Officer made out cognizable or non-cognisable offences. The procedure to be followed in such circumstances is now well settled by the Hon’ble Supreme Court in the case of ‘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.
6. As the learned Magistrate has failed to follow the procedure as laid down in the above decision and the learned Sessions Judge also failed to advert his mind to the procedure laid down in the above decision, in my view, the orders passed by the Courts below cannot be sustained. Consequently, the petition deserves to be allowed.
Accordingly, the petition is allowed. The impugned order dated 11.11.2014 passed by the learned Magistrate in P.C.No.124/2013 which is confirmed by the learned Sessions Judge in Crl.R.P.No.243/2014 dated 17.08.2015 are hereby 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.
Sd/- JUDGE *mn/-