IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.6900/2016 BETWEEN:
1. RAMADASA NAYAK S/O LATE VENKATESH NAYAK AGED ABOUT 63 YEARS 2. VASANTHI R NAYAK W/O RAMADASA NAYAK AGED ABOUT 54 YEARS BOTH ARE R/AT MANJUSHREE, ONTHIBETTU POST HIRIADKA, UDUPI TALUK.
3. VISHWANATHA NAYAK S/O LATE BABANNA NAYAK AGED ABOUT 50 YEARS OJAS – 17, MIT QUARTERS MANIPAL, UDUPI TALUK & DISTRICT.
4. DAYANANDA S/O LATE SHIVARAMA AGED ABOUT 52 YEARS ONTHIBETTU, HIRIADKA UDUPI TALUK AND DISTRICT.
5. GANESH NAYAK S/O RAMACHANDRA NAYAK AGED ABOUT 40 YEARS R/AT NAGASHREE, ANJAR VILLAGE HIRIADKA, UDUPI.
6. K.SHIVARAMA PRABHU S/O LATE DEVANNA PRABHU AGED ABOUT 54 YEARS SHEETHAL, SATHISH NAGAR ATHRADI VILLAGE, UDUPI.
7. PRAKASH SHETTY S/O KRISHNA SHETTY AGED ABOUT 44 YEARS PADUBAGA, MATADABETTU HIRIADKA, UDUPI.
8. SHANKAR SHETTY S/O LATE KORAGA SHETTY AGED ABOUT 50 YEARS PDUBAGA, MATADABETTU HIRIADKA, UDUPI.
9. NARAYANA @ BOODA MARAKALA S/O LATE GURUVAMARKALA AGED ABOUT 55 YEARS ONTHIBETTU, MADAGA HIRIADKA, UDUPI.
10. BALAKRISHNA BHAT S/O RAMACHANDRA BHAT AGED ABOUT 52 YEARS SHRI SUDHEENDRA ONTHIBETTU, HIRIADKA UDUPI. ...PETITIONERS (BY SRI RAJESH.S., ADV. FOR SRI PRASAD HEGDE.K., ADV.) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS HIRIADKA POLICE STATION UDUPI-576101.
2. LALITHA PATKAR W/O DEVENDRA PATKAR AGED ABOUT 62 YEARS C/o. SAI RADHA GOKULDHAM SEA WING 002 BEHIND KRISHNA MUTT, BAILAKER, UDUPI TALUK AND DISTRICT-576101. …RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-1; SRI NATARAJ BALLAL, ADV. FOR R-2.) THIS CRL.P. IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 21.08.2013 PASSED BY LEARNED PRL. CIVIL JUDGE AND JMFC, UDUPI IN PC.NO.16/2013 [C.C.NO.2007/2013] AS PER ANNEXURE-A.
THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioners and learned Addl. SPP for respondent No.1 and learned counsel for respondent No.2. Perused the records.
2. Though the petitioners have urged contentions based on merits, on perusal of the records, it is noticed that the private complaint filed by the second respondent was referred for investigation under Section 156(3) of Cr.P.C and after investigation, respondent No.1/police submitted a ‘B’ summary report. Learned Magistrate without considering the said ‘B’ report and without passing any orders thereon, proceeded to record the sworn statement of the complainant and based on the said material, issued process to the petitioner.
3. Above procedure is contrary to the guidelines issued 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 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.”
4. In view of the above factual position, the petition is allowed. The impugned order dated 21.08.2013 is quashed. The matter is remitted to the learned Magistrate to consider the ‘B’ summary report in the light of the guidelines in the above decision and thereafter proceed in accordance with law.
All the legal and factual contentions urged by the parties are left open.
Sd/- JUDGE NC.