IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NOs.4457-4458/2019 (GM-RES) BETWEEN:
1. SMT. M.N. LAKSHMIPRABA W/O M.P. VARADHAPRABHU AGED ABOUT 38 YEARS.
2. LAKSHMIKANTHA AGED ABOUT 45 YEARS.
BOTH R/AT NO. 767 3RD CROSS, GOKULAM 3RD STAGE MYSORE – 570 001. ... PETITIONERS (BY SRI. AJAY PRABHU M., ADVOCATE FOR SRI. SACHIN B.S., ADVOCATE) AND:
1. M.V. PRAKASH S/O LATE M.P. VARADA CHAR AGED ABOUT 70 YEARS NO. 615, YALAKAPPACHARI STREET, KAMATAGERI MANDI MOHALLA MYSORE – 570 001.
2. STATE OF KARNATAKA REP. BY STATION HOUSE OFFICER, V.V. PURAM POLICE STATION, MYSORE CITY REPRESENTED BY S.P.P HIGH COURT OF KARNATAKA BANGALORE – 01. ... RESPONDENTS (BY SRI. JAIRAJ., ADVOCATE FOR R-1; SRI. S. RACHAIAH., HCGP FOR R-2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED:21.08.2018 AND ALSO ENTIRE PROCEEDINGS IN PURSUANT TO PRIVATE COMPLAINT IN PCR NO.3/2017 ON THE FILE OF 1ST ADDITIONAL SENIOR CIVIL JUDGE & CJM AT MYSORE AS PER ANNEXURE-A AND A1.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R First Respondent herein filed a complaint on 04.01.2017 under Section 200 Cr.P.C. against petitioners alleging thereunder that accused No.1 is his daughter-in-law and accused No.2 is her brother and together they had conspired to knock away the ornaments belonging to the complainant and owned by him and while leaving the matrimonial home, accused No.1 has taken away the jewellery/ornaments and thereby they have committed the offences punishable under Sections 120B, 406, 420 and 506 IPC read with Section 34 IPC.
2. It is further alleged that when accused persons were confronted or enquired with the missing ornaments in the presence of Panchyatdars, they agreed to return the ornaments but did not do so. Hence, complainant is said to have lodged a complaint with V.V.Puram Police Station on 17.05.2011 and they informed the complainant to resolve the same in the Family Court . Hence, on these grounds, complainant sought for suitable action being taken against petitioners.
3. Said complaint came to be registered as PCR No.3/2017 and on being referred for investigation under Section 156(3) Cr.P.C. to the jurisdictional police, a ‘B’ summary report came to be submitted on 30.10.2017. Complainant filed objections to the ‘B’ report by way of protest petition. Subsequently, sworn statement of the complainant and his witnesses were recorded and cognizance was taken by order dated 21.08.2018 with a direction to register the criminal case against the accused persons for the offences punishable under Sections 406 and 380 read with Section 34 IPC. Hence, petitioners are before this Court for quashing of the entire proceedings.
4. I have heard the arguments of Sri Ajay Prabhu, learned Advocate appearing on behalf of Sri B S Sachin, for petitioners, Sri Jairaj, learned Advocate appearing for respondent-1 and Sri S Rachaiah, learned HCGP appearing for respondent-2.
5. It is the contention of Sri Ajay Prabhu, learned Advocate appearing for petitioners that there is no primafacie case attracting Section 420 IPC against the petitioners and the learned Magistrate without application of mind has taken cognizance of the offence. He would further submit that once a ‘B’ summary report is submitted and protest – memo is filed, the Court has to examine the contents of ‘B’ summary report so as to ascertain whether police have done the investigation in the proper manner or not and is of the opinion that investigation has not been properly conducted, it can direct the police for conducting re-investigation or further investigation, which is inherent power under Section 163(3) Cr.P.C.; if the Court is of the opinion that material available in the ‘B’ report which makes out a cognizable case against petitioners, it would be sufficient to take cognizance and issue process by recording its opinion as contemplated under Section 204 Cr.P.C.; if the Court is of the opinion that if ‘B’ summary report has to be rejected, it has to do so by judicious application of mind and by expressing its opinion after applying its mind to the contents of the ‘B’ summary report and then look into the private complaint or the protest – memo to ascertain whether allegations made in the complaint or the protest – memo would constitute a cognizable offence or not. If the answer is in the affirmative, it can take cognizance of those offences and thereafter provide an opportunity to the complainant to tender his sworn statement and also record the statement of witnesses if any on the side of the complainant; if the Court is of the opinion that material collected by the police enclosed to the report submitted under Section 173 of Cr.P.C. are not sufficient, but there are sufficient material which disclose the cognizable offence has been committed, Court can still take cognizance of the offence under Section 190 read with Section 200 Cr.P.C. on the basis of original complaint or the protest – memo as the case may be. Hence, he contends that the procedure adopted by the learned Magistrate is erroneous and liable to be quashed.
5.1) He would further submit that the complaint filed by the respondent is contrary to the dicta laid down by the Hon’ble Apex Court in PRIYANKA SRIVASTAVA AND ANOTHER vs STATE OF UTTAR PRADESH AND OTHERS reported in AIR SCW 2015 namely, affidavit is not filed along with the complaint and as such, the complaint itself is liable to be quashed.
5.2) He would also submit that the allegations made in the complaint is similar to the contentions examined by the Family Court in M.C.No.322/2010 c/w 521/2011 whereunder the Family Court has negatived the identical contention and only after the said judgment came to be passed, the present complaint under Section 200 Cr.P.C. came to be filed on 04.01.2017. For these reasons, learned Advocate appearing for petitioner prays for allowing the petitions and quashing the entire proceedings pending in PCR No.3/2017.
6. Per contra, Sri Jairaj, learned Advocate appearing for respondent-1 would support the impugned order taking cognizance of the offence and contends that there is no infirmity whatsoever committed by the learned trial Judge and if for any reason, this Court were to arrive at a conclusion that for want of any procedure having not been complied, the matter may be remitted back to the jurisdictional Court to continue the proceedings from the said stage and he would rely upon the unreported judgment of this Court in Crl.P.5011/2016 disposed of on 24.01.2018.
6.1) He would also contend that before the trial Court, the earlier complaint lodged by the complainant on 17.05.2011 has been produced including the acknowledgment and as such, question of examining the defence of the accused persons or taking into consideration any finding recorded by the family Court by the learned Magistrate at the time of issuing process would not have arisen at all and hence, he prays for rejection of the petition.
7. Having heard the learned Advocates appearing for the parties and on perusal of the records, the factual matrix leading to the filing of the present petition can be summarized as under:
First petitioner’s marriage with the complainant’s son Sri M.P.Varadaprabhu was solemnised on 31.10.2004 at Mysore and a male child was born out of the said wedlock. On account of certain disputes having arisen between them, accused No.1 is said to have left the matrimonial home on 02.05.2010 and started residing at the house of her brother (accused No.2). Subsequently, she has filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 in M.C.No.322/2010 seeking the decree of divorce. Her husband Sri M.P.Varadaprabhu filed a petition against accused No.1 under Section 9 of the Hindu Marriage Act, 1955 for the relief of restitution of conjugal rights. Both the petitions came to be clubbed and disposed of by a common judgment dated 02.08.2016 whereunder the petition filed by the wife came to be allowed and petition filed by the husband came to be rejected.
8. When the merits of the case is examined, it would clearly indicate that complainant who is none other than the former father-in-law of the accused No.1, has contended in the complaint filed on 04.01.2017 under Section 200 Cr.P.C. that all the ornaments belonging to his wife which he had inherited from his forefathers were given/handed over to his daughter-in-law immediately after marriage. It is specifically contended that the ornaments/jewellery as described in paragraph 2 of the complaint was the ancestral property. Said plea/allegation made by the complainant in his complaint at paragraph 2 reads:
“F ªÉÄîÌAqÀ J¯Áè MqÀªÉUÀ¼ÀÄ ¦AiÀiÁðzÀÄzÁgÀjUÉ ¦vÁæfðvÀªÁV §AzÀAvÀºÀ D¨sÀgÀtUÀ¼ÁVzÀÄÝ F MqÀªÉUÀ¼À ªÉÄÃ¯É ¦AiÀiÁðzÀÄzÁgÀgÀÄ vÀÄA¨Á ¨sÁªÀ£ÁvÀäPÀ ¸ÀA§AzsÀªÀ£ÀÄß ºÉÆA¢gÀÄvÁÛgÉ ºÁUÀÆ CvÀåªÀÄÆ®åªÁzÀÀ D¨sÀgÀtUÀ¼ÁVgÀÄvÛÀª.É 9. According to the complainant, the first accused on account of certain differences in the marriage with his son, is said to have left the matrimonial home during August, 2010 i.e, on 11.08.2010 by taking away all the jewellery belonging to him and his wife. He has further alleged that on enquiry being made in the Panchayat held, accused persons agreed to return the jewellery but they did not do so and as such, he was perforced to lodge a complaint on 17.05.2011 with V.V.Puram Police Station, Mysore. At this juncture itself, it would be apt to note that partition deed came to be executed between the complainant, his son – Sri M.V.Varadaprabhu (husband of accused No.1) and Smt.M.P.Bhagyalakshmi (daughter of the complainant) under a registered partition deed dated 11.08.2005 – Annexure-G, whereunder it is agreed between the parties that all the properties both movable and immovable belonging to the family including the property which was inherited by complainant has been partitioned. It is also stated that the ornaments/jewellery belonging to the joint family has been allotted to Smt.M.P.Bhagyalakshmi. Thus, it would clearly indicate that even as on the date of execution of partition deed dated 11.08.2005, entire properties belonging to the joint family of the complainant and his children came to be partitioned and the alleged jewellery or ornament which was inherited by the complainant had been allotted to the share of Smt.M.P.Bhagyalakshmi. As on the said date, the marriage between accused No.1 and the son of the complainant had already been solemnised and even according to the complainant, she was residing in the matrimonial home and yet there is not even a whisper in the complaint in this regard.
10. The son of the complainant who is husband of accused No.1 had raised a plea in the matrimonial cases referred to herein supra with regard to same jewellery, which came to be examined and a finding came to be recorded by the family Court to the following effect:
“14. According to the petitioner xxx aforesaid allegations. Even the respondent has also produced the copy of the complaint lodged by the petitioner, related statements and the endorsement issued by the police at Ex.R.8 to R.11 and Ex.R.13. These documents show that due to financial issue, rift started in the family and it has gone to the extent of alleging that petitioner has committed theft of necklace of precious stones. Because according to respondent he had gold necklaces, chains and necklace of precious stones, diamond stud of his ancestors. In this regard he has produced photo relating to necklace of precious stones at Ex.R.6. Interesting fact is that, respondent has produced Ex.R.5 that is estimation amount of gold jewels in his possession issued by N.Nagaraja Setty and Son dated 26.03.2004. As per Ex.R.5 respondent had gold and diamond studs and 28 navaratna stones worth 7,72,363/-. But author of Ex.R5, was not examined by the respondent and hence it cannot be blindly accepted. More over according to respondent, the value of those precious stones are worth more than crores. But, as per estimation Ex.R5 its value along with other gold ornaments is 7,72,363/- and hence it is contrary to the evidence of respondent.”
(emphasis supplied) 11. In fact, learned family Judge for dissolving the marriage has taken judicial note of these facts and arrived at a conclusion that making such allegations against first accused was “nothing but an act of cruelty committed on her by the respondent”. Nothing prevented the husband of first accused to examine the complainant herein as a witness in the said matrimonial case. Even this exercise was not undertaken. This finding of fact has attained finality. It is only after judgment came to be delivered on 02.01.2016, complainant sought to revive his grievance by filing the complaint in question on 04.01.2017. Thus, it would clearly disclose complainant having adopted “watch and wait” policy is attempting to revive a dead issue. That apart, there is not even a whisper in his complaint with regard to matrimonial dispute between first accused and son of the complainant which was disposed of by the family Court, Mysore by its judgment dated 02.08.2016 rendered in M.C.No.322/2010 c/w 521/2011.
12. That apart, the complaint in question which came to be filed on 04.01.2017, even according to the complainant is an off shoot of an earlier complaint dated 17.05.2011. If it were to be so, nothing prevented the complainant from approaching the jurisdictional police once again by filing a fresh complaint and requesting them to consider his prayer as sought by him in his first complaint dated 17.05.2011, which has not been done. Be that as it may. The complainant has filed a complaint under Section 200 Cr.P.C before the jurisdictional police. No reasons are forthcoming as to why he did not approach the jurisdictional police. This is contrary to the dicta laid down by the Hon’ble Apex Court rendered in PRIYANKA SRIVASTAVA & ANOTHER vs. STATE OF U.P. & OTHERS reported in (2015)6 SCC 287, wherein, Hon’ble Apex Court has observed as under:
“30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR”.
13. Non-filing of the affidavit would be fatal to such proceedings. In the instant case, undisputedly, such affidavit has not been filed and as such, the proceedings against petitioners if allowed to be continued, it would not only be contrary to the dicta laid down by the Hon’ble Apex Court but also amounts to allowing the illegality being perpetrated and thereby resulting in abuse of process of law.
14. The records on hand would also disclose that on the complaint being filed, the jurisdictional Magistrate referred the same for investigation and ‘B’ summary report came to be submitted which was placed before the Court on 30.10.2017 and thereafter on 01.01.2018 objections to the ‘B’ summary report came to be filed. Immediately thereafter learned Magistrate has extended an opportunity to the complainant to tender sworn statement, which also came to be recorded in part on 03.03.2018 and further sworn statement was recorded on 17.03.2018. The statement of witnesses on behalf of the complainant came to be recorded on 03.05.2018 and on an application filed under Section 311 Cr.P.C., further sworn statement of the complainant was also recorded on the said date. The sworn statement of yet another witness Smt.Radhamma was recorded on 24.07.2018 and by impugned order dated 21.08.2018, cognizance for the offences under Section 406 and 380 read with Section 34 IPC was taken against petitioners and summons issued to the accused petitioners.
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.
16. In the instant case, none of the above procedure have been followed by the learned Magistrate, but on the other hand, as could be seen from the records, the Magistrate even without rejecting the ‘B’ summary report and without taking cognizance of the offence and by going through the complaint and the protest – memo, has provided an opportunity to the complainant to tender his sworn statement directly. Thus, on the basis of the contents of the protest memo and by relying upon the sworn statement, has issued process to the accused, thereby, learned Magistrate has committed a serious error in not passing orders on ‘B’ summary report before taking cognizance on the basis of protest – memo.
17. The issuance of summons having a serious consequence on the accused, the procedure contemplated under Cr.P.C. as discussed herein above, has to be followed and in the instant case, trial Court has given a complete go-by and as such, impugned order does not stand the test of law.
18. Thus, for the myriad reasons above stated, the prayer sought for in the petitions deserves to be granted.
Hence, I proceed to pass the following:
ORDER (i) Writ Petitions are hereby allowed.
(ii) Order dated 21.08.2018 passed in PCR No.3/2017 – Annexure-A and all proceedings pursuant thereto pending on the file of I Additional Civil Judge & CJM, Mysore is hereby quashed.
SD/- JUDGE *sp