IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8246/2015 BETWEEN:
SMT. K SHIVAPRIYA W/O LATE KUMAR, AGED ABOUT 59 YEARS, BANK OF MAHARASTRA, BASAVANAGUDI BRANCH, BASAVANAGUDI, BANGALORE - 560 004.
NOW AT BANK OF MAHARASTRA SERVICE BRANCH, # 116, BROADWAY, SHRI. GUJARATHI MANDAL BUILDING, CHENNAI - 600 108, TAMIL NADU STATE.
(BY SRI.M.T.NANAIAH, SENIOR ADV.) AND:
1. THE STATE OF KARNATAKA BY JAYANAGARA POLICE STATION, BANGALORE, REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BANGALORE - 560 001.
2. J. MATHIVANAN S/O LATE JAGANATHAN, AGED ABOUT 61 YEARS, R/AT # 25, III CROSS, ... PETITIONER NARAYANAPURA CROSS, SHIRADI SAI NAGAR, A.C.POST, BANGALORE -560 045.
(BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R1; R2 SERVED AND UNREPRESENTED) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS AGAINST THE PETITIONER WHO IS THE ACCUSED IN SPL.C.C.NO.2/2015 FOR THE OFFENCES 3(1)(X) OF SC/ST (POA) ACT, 1989 REGISTERED BY THE JAYANAGAR POLICE, BENGALURU PENDING ON THE FILE OF THE II ADDL. CITY CIVIL AND S.J., SPL. JUDGE, BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned Senior Counsel appearing for petitioner and learned Addl. SPP for respondent No.1. Respondent No.2 is served and unrepresented. Perused the records.
2. Learned Senior Counsel has assailed the impugned proceedings mainly on two grounds. Firstly, the allegations made against the petitioner in the private complaint do not make out the ingredients of alleged offence. Secondly, learned Special Court has issued summons to the petitioner without rejecting ‘B’ summary report submitted by the investigating agency and has proceeded to record sworn statement of the complainant and his witnesses without even taking cognizance of the alleged offence as mandated under section 200 Cr.P.C.
3. The second contention urged by the learned Senior Counsel appearing for petitioner deserves acceptance.
A perusal of the order-sheet discloses that, on receipt of private complaint filed by second respondent, the Special Court referred the same for investigation under section 156(3) of Cr.P.C. After investigation, Investigating Officer submitted ‘B’ summary report. Same was taken on file on 20.04.2012. Thereafter, matter was posted for receiving evidence of complainant on 20.9.2012 and the matter was adjourned from time to time and finally, by order dated 30.12.2014, the Special Court issued summons to accused/petitioner. The operative portion of the order reads as under:-
“Cognizance is taken for the offences punishable under Sections 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 and issue summons to accused.”
4. The above entries in the order-sheet, on the face of it, indicate that learned Special Court has recorded the sworn statement of the complainant before taking cognizance of the alleged offences as mandated under section 200 Cr.P.C. Section 200 Cr.P.C., in unambiguous terms states that, Magistrate on taking cognizance could proceed to record the statement of complainant and on considering the same could proceed in the matter. That apart, there is nothing on record to show that before proceeding to record the sworn statement of the complainant, learned Special Court has passed any order on the ‘B’ summary report submitted by the Investigating Officer.
5. The law on the point is now well settled in view of the authoritative pronouncement of 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 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.”
6. As the Special Court has failed to follow the procedure as laid down in the above decision, the impugned order cannot be sustained.
Accordingly, petition is allowed. The impugned order dated 30.12.2014 passed in Spl.C.C.No.2/2015 pending on the file of II Addl. City Civil & Sessions Judge and Special Judge, Bengaluru, taking cognizance of the alleged offence and issuing summons to the petitioner is hereby quashed. The matter is remitted to the Special Court to consider the ‘B’ summary report afresh in the light of the guidelines laid down in the above decision and thereafter proceed in accordance with law.
Sd/- JUDGE Bss