IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5555/2017 BETWEEN:
1. MUJEEB RAHIMAN S/O. LATE REHMANULLA, AGED ABOUT 63 YEARS, 2. JAMEEL S/O. MUJEEB RAHIMAN, AGED ABOUT 34 YEARS, BOTH R/O. D.NO. 3/429, NETHAJI EXTENSION, NEAR VENKATESHWARA THEATRE, KUSHALNAGARA DISTRICT - KODAGU, PIN CODE – 571234 ... PETITIONERS (BY SRI NIKHIL KASHIMATH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA THROUGH KUSHALNAGAR POLICE, DISTRICT - KODAGU PIN CODE – 571 234. REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENGALURU – 560 001 2. MINAZ FATHIMA W/O. MOHAMMAD ARIF, D/O. B. YAKUB KHAN, AGED ABOUT 26 YEARS, R/O. GOSIA MANZIL, PUTTUR KASABA HOBLI, TALUK – PUTTUR, DISTRICT - DAKSHINA KANNADA, PINCODE – 574 201 ... RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL., SPP FOR R1; SRI JEEVAN K., ADVCOATE FOR R2) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATD 28.03.2015 IN C.C.NO.514/2015 AND ENTIRE PROCEEDINGS ON THE FILE OF ADDL. CIVIL JUDGE AND J.M.F.C., SOMWARPET, SITTING AT KUSHALNAGAR FOR THE OFFENCE P/U/S 498(A) AND 506 OF IPC AND SEC. 3 AND 4 OF D.P. ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for petitioners; learned counsel for respondent No.2 and learned Additional SPP for respondent No.1.
2. Petitioners have assailed the order dated 28.3.2015 whereby the learned Magistrate has issued summons to the petitioners under Sections 498A and 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act.
3. Respondent No.2 filed a complaint before the police seeking prosecution of the petitioners for the above offences. After investigation, the Investigating Officer submitted ‘B’ summary report. Respondent No.2 filed her objections to the protest petition. The learned Magistrate without considering the ‘B’ summary report and without passing any orders thereon either accepting or rejecting the same, proceeded to record the sworn statement of the complaint and witnesses and by the impugned order issued summons to the petitioners. This procedure is contrary to the guidelines laid down 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 wherein it is laid down 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.”
4. In the light of the above legal and factual positions, without expressing any opinion on other contentions urged by the petitioners, the impugned order dated 28.3.2015 passed in C.C.No.514/2015 by the Additional Civil Judge and JMFC, Somwarpet, sitting at Kushalnagar, is quashed and the matter is remitted to the learned Magistrate to consider the ‘B’ summary report afresh in the light of the guidelines laid down in the above decisions and thereafter proceed in accordance with law.
Sd/- JUDGE *alb/-.