IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 1262 OF 2017 BETWEEN:
1. SHEELA G NAYAK W/O K G NAIK, AGED ABOUT 71 YEARS, PRINCIPAL, K.V.G. MEDICAL COLLEGE, SULYA, DAKSHINA KANNADA DISTRICT (WORKED IN THE YEAR 2006 & 2010) PRESENTLY R/AT NO.2628, KRS ROAD, NAGARJUNA PRINCESS MANOR,V MOHALLA, MYSORE, VANI VILAS MOHALLA, MYSORE – 570 002.
2. DR. M. S. DHANANJAYA S/O SHANKARAIAH, AGED ABOUT 69 YEARS, DIRECTOR, HASSAN MEDICAL SCIENCE ORGANISATION, HASSAN, (WORKED FROM 2005 TO 2006) PIN – 573 201.
3. DR. K. S. GANGADHAR S/O D. K. SHIVAPPA, AGED ABOUT 53 YEARS, DIRECTOR,HASSAN MEDICAL SCIENCE ORGANISATION HASSAN (WORKED FROM 2008 TO 2010) PRESENTLY PROF & HOD OF ENT SHIMOGA INSTITUTE OF MEDICAL SECIENCE, MC GANN.TEACHING DISTRICT HOSPITAL SHIVAMOGGA – 577 201.
4. DR. ARUNA W/O R KRISHNAKUMAR, AGED ABOUT 60 YEARS, DIRECTOR, DIRECTOR OF MEDICAL EDUCATION, ANANDA RAO CIRCLE, BANGALORE – 560 001.
5. DR. RACHEGOWDA S/O LATE NAGEGOWDA, AGED 62 YEARS, DIRECTOR, MEDICAL SCIENCE ORGANISTATION, HASSAN – 573 201 (RETIRED FROM SERVICE).
... PETITIONERS (BY SRIYUTHS VIKAS.M., ADVOCATE FOR SACHIN B. S., ADVOCATE) AND:
1. STATE OF KARNATAKA BY HASSAN CITY POLICE REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING BANGALORE – 560 001.
2. C. V. MOHAN RAJ S/O VENKATARAM, AGED ABOUT 43 YEARS, CHOWDENAHALLI VILLAGE, KATTAYA HOBLI, HASSAN TALUK AND DISTRICT – 573 201.
... RESPONDENTS (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-1 SRI. P.M. NAYAK, ADVOCATE FOR R-2) THIS CRL.P FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.11.2016 PASSED IN PCR NO.1079/2014 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., HASSAN FOR THE OFFENCES P/U/SS.417, 420, 426, 465, 468, 471, 474, 120B R/W 149 OF IPC VIDE DOCUMENT NO.2 AND CONSEQUENTLY QUASH ALL FURTHER PROCEEDINGS PURSUANT TO THE IMPUGNED ORDER IN PCR NO.1079/2014 ON THE FILE OF PRL.
C.J. AND J.M.F.C., HASSAN, IN SO FAR AS PETRS. ARE CONCERNED.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is by accused Nos.2 to 6 in PCR No.1079/2014.
2. Heard learned counsel for the petitioners, learned Additional SPP for respondent No.1 and learned counsel for respondent No.2.
2. The undisputed facts are that respondent No.2 filed a private complaint in PCR No.1079/14 seeking action against the petitioners herein for the offences punishable under Sections 417, 420, 426, 465, 468, 471, 474, 120(B) read with 149 IPC.
Learned Magistrate referred the complaint for investigation under Section 156(3) Cr.P.C. Upon investigation, the Investigating Officer submitted ‘B’ summary report. The order sheet dated 01.07.2015 indicates that the trial Court perused the final ‘B’ report and having found that an opportunity has to be given to the complainant to prove his case, permitted the complainant to give his sworn statement. There is nothing in the order to indicate whether the learned Magistrate has accepted or rejected the ‘B’ report. Records reveal that the learned Magistrate recorded the sworn statement of the complainant and by the impugned order dated 30.11.2016 took cognizance of the above offences and issued summons to the petitioners.
3. Learned counsel for the petitioners submits that in respect of the very same accusations, an enquiry was conducted by Karnataka Lokayuktha and a departmental enquiry was also initiated against the petitioners and they have been exonerated but the learned Magistrate has not considered any of these aspects while taking cognizance of the alleged offences.
4. Learned counsel for the respondents dispute the submissions and points out that the complainant herein did not approach the Karnataka Lokayukta and therefore, whatever finding recorded by the Karnataka Lokayukta has no bearing in the instant case and further, contends that no departmental enquiry was held against the petitioners.
5. A perusal of the “B” summary report submitted by the police indicate that during investigation, information was secured to the effect that one Dr.Suresh had filed a Writ Petition No.22187/2011 before this Court which makes reference to the complaint made before the Karnataka Lokayukta. In the impugned order, the learned Magistrate has not at all referred to any of the material collected by the Investigating Officer. There is not even a remote reference to the investigation conducted by the Investigating Officer. The learned Magistrate has also failed to note that even the sworn statement given by the complainant did not contain any allegations insofar as the petitioners are concerned.
6. The approach adopted by the learned Magistrate is contrary to the procedure 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 and in Criminal Petition No.6783/2015 disposed of on 28/02/2019, wherein the Hon’ble Supreme Court has held as follows :-
“After going through the contents of the investigating papers filed under section 173 of the Cr.P.C., the court is of the opinion that investigation has not been done properly, the court has jurisdiction to direct the police to file 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.
If the court is of the opinion that the material available in the B 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 Section 204 of the Cr.P.C. and the Court has got power to take cognizance on the contents of the B Summary Report and to proceed against the accused by issuance of process.
If the court is of the opinion that the B Summary Report submitted by the police has to be rejected, by expressing judicious opinion after applying its mind to the contents of the B report, the Court has to reject the B Summary Report. ”
7. In view of the above, petition deserves to be allowed.
Accordingly, the petition is allowed. The impugned order dated 30.11.2016 passed by the learned Magistrate in PCR No.1079/2014 and the consequent order issuing summons to the petitioners are quashed. The matter is remitted to the learned Magistrate to reconsider the “B” report afresh in light of the observations made 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.
The learned Magistrate is directed to complete the exercise as expeditiously as possible, within an outer limit of two months from the date of communication of this order.
Sd/- JUDGE rs