IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2931 OF 2016 BETWEEN:
L JAYAPRAKASH S/O A LAKSHMAN, AGED ABOUT 52 YEARS, PRESENTLY WORKING AT BMTC, CHIEF SECURITY AND VIGILANCE OFFICER, CENTRAL DIVISION, 2ND STAGE, BMTC LAYOUT, BDA QUARTERS, BANGALORE-560050 PRESENT ADDRESS HOUSE NO.1252, MANASANAGARA, 5TH MAIN, NEAR JINDAL GOVT. PRIMARY SCHOOL, NAGARABHAVI 1ST STAGE, BANGALORE-560 072.
... PETITIONER (BY SRI: HAREESH BHANDARY T, ADVOCATE) AND 1. STATE BY C.I.D. POLICE E.O.SQUAD, C.I.D. BANGALORE CITY BANGALORE-560001.
2. SRI.T.C.SATISH KUMAR S/O CHANNAVERAIAH, AGED ABOUT 56 YEARS, ADVOCATE, R/AT NO.29, SOMESWARA COMPLEX, 2ND FLOOR, NEAR CHIKKALALBAGH, BANGALORE-560004.
3. SMT.MANGALAMMA W/O GURUSIDDAIAH, AGED ABOUT 60 YEARS, R/AT RAYARAPALYA, NELAMANGLA TALUK, BANGALORE RURAL DIST-562123.
4. SMT.PUSHPAKALA W/O NAGARAJ, AGED ABOUT 40 YEARS, R/AT RAYARAPALYA, NELAMANGALA TALUK, BANGALORE RURAL DIST-562123.
... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: A.N. RADHAKRISHNA, ADVOCATE FOR R2; SRI: K.N.PRAKASH, ADVOCATE FOR R3 & R4) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE LI ADDL. CITY CIVIL AND S.J., BANGALORE DATED 31.10.2015 IN CRL.RP.NO.407/2011 IN REJECTING THE REVISION PETITION, CONSEQUENTLY SET ASIDE THE ORDER PASSED BY THE I A.C.M.M., BANGALORE IN CR.NO.224/2008 DATED 06.08.2011 IN ACCEPTING THE 'B' REPORT FILED BY THE 1ST RESPONDENT.
THIS CRL.P IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is directed against the order dated 31.10.2015 passed by learned LI Addl. City Civil and Sessions Judge, Bengaluru in Crl.R.P.No.407/2011, whereby the learned Sessions Judge dismissed the application filed by the petitioner/complainant under section 5 of the Limitation Act and consequently dismissed the revision petition No.407/2011.
2. Petitioner herein lodged a report before the Halasuru Gate police alleging commission of offences punishable under sections 465, 468, 471, 420, 209, 120B, 420, 511 r/w 34 IPC.
After investigation, police submitted a ‘B’ summary report. Notice of the ‘B’ summary report was served on the petitioner. Petitioner appeared before the learned Magistrate, however, failed to submit his protest petition, as a result, learned Magistrate by order dated 06.08.2011 accepted the ‘B’ summary report.
3. Though learned counsel for the petitioner has contended that in the facts and circumstances of the case, the learned Sessions Judge was not justified in rejecting the application filed by him under section 5 of the Limitation Act, but on going through the procedure followed by the learned Magistrate, it is seen that the learned Magistrate has accepted the ‘B’ summary report without looking into the said report and without applying his judicious mind to the facts and circumstances of the case and the material produced by the investigating agency. 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 has laid down the procedure to be followed in the matter of accepting or rejecting the ‘B’ summary report 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.”
Since the learned Magistrate has failed to apply his judicious mind to the ‘B’ summary report filed by the petitioner and has accepted the same without consideration of the material produced before the Court, without entering into any further discussion on the contentions urged by learned counsel for the petitioner, in my view, solely on this ground, the petition deserves to be allowed.
4. Accordingly petition is allowed. Order dated 31.10.2015 passed by learned LI Addl. City Civil and Sessions Judge, Bengaluru is quashed. Case is remitted to the learned Magistrate to reconsider the ‘B’ summary report afresh in the light of the guidelines issued in the above decision.
Since the matter is remitted to the learned Magistrate, opportunity is given to the petitioner to submit his protest petition within 31.08.2019.
The petitioner/complainant shall appear before the learned Magistrate on 04.09.2019.
Sd/- JUDGE *mn/-