IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA W.P.No.53988/2017 (GM-RES) BETWEEN:
SMT. RUCHI GOEL W/O LATE ASHISH GOEL AGED ABOUT 37 YEARS NO.47, GANJ BAZAR SADAR MEERUT UTTARA PRADESH – 250 001 (BY SRI ARUNA SHYAM M., ADV.) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY MICO LAYOUT POLICE THROUGH STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 2. SRI VINAY GOEL S/O SRI VED RAM GOEL AGED ABOUT 79 YEARS 2-SAKET COLONY SURENDRANAGAR, ALIGARH UTTARA PRADESH – 202 001 ...PETITIONER …RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SMT. RASHMI C., ADV. FOR R2 - ABSENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 05.08.2017 PASSED BY VI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE IN CRIME NO.453/2010 REGISTERED BY R-1 POLICE ON THE COMPLAINT FILED BY R-2 FOR THE OFFENCE P/U/S 306 OF THE INDIAN PENAL CODE AND THE ENTIRE PROCEEDINGS IN THE SAID CRIMINAL CASE AND THE ORDER DATED 28.11.2014 PASSED BY THE FAST TRACK COURT – VIII, BENGALURU IN CRIMINAL REVISION PETITION NO.47/2014, VIDE ANNEXURES – A AND B RESPECTIVELY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R 1. Heard learned counsel for petitioner and learned Additional SPP for respondent no.1. Counsel for respondent no.2 is absent. Perused the records.
2. Though the learned counsel for the petitioner has urged various contentions on merits, yet on going through the impugned order passed by the learned Magistrate, I find that the learned Magistrate has failed to follow 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.”
As the learned Magistrate has failed to follow the procedure as laid down in the above decision, the impugned order dated 05.08.2017 passed by the learned Magistrate cannot be sustained.
3. Accordingly, the petition is allowed. Impugned order dated 05.08.2017 and the consequent proceedings pending on the file of VI Additional CMM, Bangalore are quashed. The matter is remitted to the learned Magistrate to consider the ‘B’ report afresh in terms of the guidelines laid down in the aforesaid decision.
All contentions of both the parties are kept open to be considered at the appropriate stage.
Sd/- JUDGE hkh.