IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 4001/2013 BETWEEN SRI ABRAHAM C PANIKER S/O K.MATHAI PANIKER, AGED ABOUT 49 YEARS, R/AT POST BOX NUMBER 26634, KUWAITH ... PETITIONER (BY SRI. DILRAJ ROHIT SEQUEIRA, ADV. - ABSENT) AND 1. THE STATE REPRESENTED THROUGH THE INSPECTOR OF POLICE, NANDAGUDI POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COUT OF KARNATAKA, BANGALORE-560001.
2. SRI.JOSEPH CHACKO AGED ABOUT 52 YEARS, S/O LATE P.J.CHACKO, R/AT NO.177/B, PARK AVENUE, BABUSA PALAYA, KALYANA NAGAR, BANGALORE-560 043.
... RESPONDENTS (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1 R2 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE PROCEEDINGS PENDING IN PCR NO.38/2010, FIR NO.125/2011 IN C.C.NO.196/2013 FILED BY RESPONDENT NO.2 PENDING ON THE FILE OF THE ADDL. C.J. (JR. DN.) & J.M.F.C., HOSKOTE, AGAINST THE PETITIONER FOR THE OFFENCES P/U/S 143,147,323,504,307,465,467,420, 193,194,211,114 R/W 149 OF IPC AND ALL FURTHER PROCEEDINGS IN THE SAID CASE AGAINST THE PETITIONER.
THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought to quash the FIR No.125/11 and the consequent registration of the proceedings against the petitioner in C.C.No.196/2013 for the offences punishable under Sections 143, 147, 323, 504, 307, 465, 467, 420, 193, 194, 211, 114 read with Section 149 of IPC.
2. The respondent herein filed a complaint under Section 200 of Cr.P.C. seeking action against the petitioner for the offences punishable under Sections 143, 147, 323, 504, 307, 465, 467, 420, 193, 194, 211, 114 read with Section 149 of IPC. The learned Magistrate referred the complaint to the PSI, Nandagudi Police Station, for investigation. After investigation, ‘B’ summary report was filed which was protested by the complainant by filing protested petition. Without rejecting the ‘B’ summary report, the learned Magistrate proceeded to record the sworn statement of the complainant and by the impugned order dated 04.12.2012, the learned Magistrate directed registration of the case against the petitioner.
3. 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.”
4. 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 registration of the case against the petitioner cannot be sustained.
5. 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.
6. Petition stands disposed of in terms of the above order.
All contentions urged by the parties are left open.
Sd/- JUDGE VP