IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR CRIMINAL PETITION NO.3201/2019 BETWEEN:
1. K M KUSHALAPPA S/O KATTEKODI MALLAPPA AGED ABOUT 75 YEARS K K CHIDANANDA S/O K M KUSHALAPPA AGED ABOUT 40 YEARS 2. K K DINESHA S/O K M KUSHALAPPA AGED ABOUT 38 YEARS ALL ARE RESIDENTS OF KARIKE VILLAGE BHAGAMANDALA HOBLI MADIKERE TALUK KODAGU DISTRICT 571247 …PETITIONERS (BY SRI GOPALAKRISHNAMURTHY C., ADVOCATE) AND:
K M ANANDA S/O KATTEKODI MALLAPPA AGED ABOUT 70 YEARS R/AT KARIKE VILLAGE BHAGAMANDALA HOBLI MADIKERE TALUK KODAGU DISTRICT 571247 (BY SRI RAJAN KUMAR K., ADVOCATE) ...RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.10/2019 AT ANNEXURE ‘F’ PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, AT MADIKERI AS AGAINST THE PETITIONERS HEREIN TO SERVE ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Respondent filed a private complaint registered as P.C.No.198/2012 against three accused. Learned Magistrate referred the case for investigation under Section 156(3) of Cr.P.C. The police after investigation filed ‘B’ report dated 24.02.2013. Thereafter, the case was pending on the file of the learned Magistrate. In the meanwhile, accused No.2 passed away in the year 2017. By order dated 31.12.2018, learned Magistrate has directed registration of criminal case against accused for the offences punishable under Section 379 r/w. 34 of IPC and issued process. Feeling aggrieved, accused Nos.1 and 3 have challenged the same in this petition.
2. Sri Gopala Krishnamurthy C., learned advocate for the petitioners placing reliance on the decision of this Court in the case of Smt.M.N.Lakshmiprabha and Another Vs. M.V.Prakash and Another in W.P.Nos.4457- 4458/2019 decided on 28.03.2019, pointed out that once the learned Magistrate came to the conclusion that ‘B’ report has to be rejected he has to do so applying judicious mind. After rejecting ‘B’ report, the learned Magistrate has to look into the private complaint or protest petition as the case may be. In this case, the learned Magistrate by keeping the ‘B’ report pending has recorded the sworn statement of the complainant and issued process. It is not permissible in law.
3. Sri Rajan Kumar K., learned counsel for respondent – complainant in his usual fairness submits that there is infraction of procedure and prays that the matter may be remitted to learned Magistrate for reconsideration.
4. I have carefully considered the rival submissions and perused the records.
5. This Court in the case of Smt.M.N.Lakshmiprabha and Another Vs. M.V.Prakash and Another at Para No.15 has held as follows:
“15. On receipt of the ‘B’ summary report and when protest – memo is filed to the said report, irrespective of the contents of the protest – memo, the Court is obliged to examine the contents of the ‘B’’ summary report, in order to ascertain as to whether the police have conducted the investigation in a proper manner or not and if the Court is of the opinion that the investigation has not been conducted properly, it has to :
(a) on going through the contents of the investigation report filed under Section 173 Cr.P.C., if the Court is of the opinion that investigation has not been done properly, it would have no jurisdiction to direct the police to file the charge sheet. However, Court may direct the police to do re- investigation or further investigation and submit a report, which is a power inherent in the Court under Section 156(3) Cr.P.C. and this exercise has to be undertaken before cognizance is being taken, as held by the Hon’’ble Apex Court in the matter of ABHINANDAN JHA vs DINESH MISHRA reported in AIR 1968 SC 117 vide paragraph 15.
(b) If the Court is of the opinion that material available in ‘B’ summary report makes out a cognizable case against accused and same is sufficient to take cognizance and to issue process, then, it has to record its opinion as contemplated under Section 204 Cr.P.C. and it has got the power to take cognizance on the contents of the ‘B’ summary report and to proceed against the accused by issuance of process.
(c) In the event of Court being of the opinion that ‘B’ summary report has to be rejected, it has to do so by applying its judicious mind to the contents of ‘B’ summary report.
(d) On rejection of ‘B’ summary report, the Court has to look into the private complaint or protest-petition as the case may be, including the contents therein to find out whether allegations made in the complaint filed under Section 200 Cr.P.C. or in the protest- petition would constitute any cognizable offence, in which event, it would be empowered to take cognizance of those offences and thereafter provide an opportunity to the complainant to tender sworn statement and also record the statement of witnesses if any, on behalf of the complainant as indicated in Section 200 Cr.P.C.
(e) If the Court is of the opinion that the material collected by the police as per the report submitted under Section 173 Cr.P.C. are not sufficient, however, there are sufficient material which disclose that a cognizable offence has been committed by the accused, the Court can still take cognizance of the offence under Section 190 read with Section 200 Cr.P.C. on the basis of the original complaint or protest petition as the case may be. Even after taking cognizance, recording sworn statement of the complainant and statement of witnesses if any and also considering the averments made in the complaint/protest petition, if the Magistrate is of the opinion that to ascertain the truth or falsity of such allegations, further enquiry is required, he may postpone the issuance of process and still direct investigation under Section 202 Cr.P.C. to be made by such officer as the Court thinks fit and submit a report to find out whether or not there is sufficient ground for proceeding against accused.
(f) After receiving such report under Section 202 Cr.P.C and looking into the entire material on record, if the Magistrate is of the opinion that there are no grounds to proceed against the accused, he has to necessarily dismiss the complaint or the protest memo under Section 203 Cr.P.C. as the case may be.
(g) For issuing summons to the accused by exercising the power under Section 204 Cr.P.C., the Magistrate has to form an opinion that there are sufficient grounds to proceed against accused by examining the allegations made in the complaint or the protest memo as the case may be, including perusal of the sworn statement and statement of witnesses, which of course by applying judicious mind.”
6. Perusal of the record and the submission of learned advocates show that the learned Magistrate has proceeded to record the sworn statement of the witnesses without passing any order on the ‘B’ report. Hence, the same is untenable.
7. Resultantly, the petition merits consideration and hence, the following order:
a. Petition is allowed.
b. The order dated 31.12.2018 passed by the learned Magistrate in C.C.No.10/2019 [P.C.R.No.198/2012 (P.C.No.63/2015)] is set aside c. The matter is remitted to learned Magistrate for fresh consideration in accordance with law.
In view of disposal of the petition, I.A.No.1/2019 does not survive for consideration and it stands disposed of.
No costs.
Sd/- JUDGE nvj