IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8082 OF 2014 C/w.
CRIMINAL PETITION No.8220 OF 2013 IN CRIMINAL PETITION No.8082 OF 2014:
BETWEEN:
MANJUNATH S/O.KEMPAIAH, AGED ABOUT 46 YEARS, #4310, 3RD CROSS, R.K.EXTENSION, CHANNAPATNA , RAMANAGARA DISTRICT-571501.
... PETITIONER (BY SRI:M.R. NANJUNDA GOWDA, ADVOCATE) AND:
1. SMT.R.MANJULA W/O.LATE RAMA, AGED ABOUT 35 YEARS, R/AT 34/1, 5TH CROSS, AVALAHALLI MAI ROAD, BANGALORE-560026.
2. STATE BY BYATARAYANAPURA POLICE, REP. BY STATE PUBLIC PROSECUTOR, BANGALORE - 560026 ... RESPONDENTS (BY SRI: K N BALARAJ, ADVOCATE FOR R1;
SRI: VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 17.9.2013 ORDER PASSED BY THE 3RD ACMM, BANGALORE AND THE PROCEEDINGS IN C.C.NO.15535/2013 (P.C.R.NO.5375/2012) PENDING ON THE FILE OF 3 ACMM, BANGALORE.
IN CRIMINAL PETITION No.8220 OF 2013: BETWEEN:
1. SRI M C KARIYAPPA S/O CHANDUGOWDA AGED ABOUT 46 YEARS R/A 2132/C 15, 6TH CROSS KUVEMPUNAGAR CHANNAPATNA TOWN RAMANAGARA DISTRICT 2. SRI ROOPSINGH S/O HANUMANSINGH AGED ABOUT 60 YEARS RETIRED S B M BANK CHIEF MANAGER R/A NO.20, OSBORNE ROAD BANGALORE-42 ... PETITIONERS (BY SRI: NARASIMHA MURTHY G V, ADVOCATE) AND:
SMT R MANJULA W/O LATE RAMA AGED ABOUT 34 YEARS R/A 34/1, 5TH CROSS AVALAHALLI MAIN ROAD BANGALORE-26 (BY SRI: K N BALARAJ, ADVOCATE) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED:
17.9.13 ORDER PASSED BY THE III ADDL.C.M.M., BANGALORE AND THE PROCEEDINGS IN PCR NO.5375/12 PENDING ON THE FILE OF THE III ADDL.C.M.M., BANGALORE.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioners and learned Additional SPP for respondent No.1 and learned counsel for respondent No.2.
2. Petitioners have sought to quash the order dated 17.09.2013 passed in C.C. No.5375/2012 on the file of III Additional Chief Metropolitan Magistrate, Bengaluru, seeking action against petitioners for the offences punishable under sections 120B, 506, 354, 355, 356, 357, 379, 384, 385, 386, 387, 392, 395, 398, 441, 442, 447, 448 and 452 of Indian Penal Code read with Section 34 of Indian Penal Code.
3. After presentation of complaint, the learned Magistrate took cognizance of offences and recorded sworn statement of the complainant and one of her witnesses. Thereafter, matter was referred to Police Inspector of Bytarayanapura Police Station for investigation with a specific direction to conduct investigation and file final report.
4. The learned Magistrate having taken cognizance of the offences and having recorded sworn statement of the complainant could not have reverted back to the stage of referring the complaint for investigation under section 156[3] of Cr.PC. On this illegality itself, subsequent action taken against the petitioners are liable to be set aside.
5. Be that as it may, subsequent order sheet reveals that the Police Sub-Inspector of Bytarayanapura Police Station submitted ‘B’ summary report before the Court. The records indicate that complainant filed protest memo and she was permitted to give sworn statement. After recording her sworn statement, by order dated 17.09.2013, the learned Magistrate directed summons to petitioners to face trial for the aforesaid offences. The learned Magistrate has brushed aside ‘B’ final report stating that ‘B’ final report was submitted not by the Police Inspector of Byatarayanapura Police Station, but by Police Sub-Inspector of Byatarayanapura Police Station. Therefore, said report cannot be looked into or considered. In the result, learned Magistrate has relied upon sworn statement of complainant and has proceeded to issue summons to petitioners. The procedure followed by learned Magistrate is contrary to sections 200 to 204 of Cr.PC.
6. The procedure as to acceptance or rejection of ‘B’ summary report has been considered by 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 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.”
7. As the learned Magistrate has failed to follow the procedure laid down in the above decisions, the impugned order passed by the learned Magistrate directing summons to the petitioners cannot be sustained.
8. In view of these procedural defects, matter is remitted to the learned Magistrate who shall consider the complaint afresh in the light of observations made in this order and in the guidelines laid down by the Hon’ble Supreme Court in the decisions referred to above.
9. Petitions stand disposed of in terms of the above order.
All contentions urged by the parties are left open.
SD/- JUDGE AN/-