IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5981/2016 BETWEEN:
1. SRI C H MARUTHI KUMAR, S/O HANUMANTHAIAH.S, AGED ABOUT 43 YEARS, ADDRESS: R/AT 2ND DIVISION, CHIKKANAYAKANAHALLI TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR-572 214.
2. SRI T.SRINIVAS, S/O K.THIMMAIAH, AGED ABOUT 44 YEARS, R/AT UDEV STREET, CHIKKANAYAKANAHALLI TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR-572 214.
3. SRI PANDURANGA C.T., S/O THIMMARAYAPPA K.T., AGED ABOUT 44 YEARS, R/AT CHIKKANAYAKANAHALLI TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR-572 214.
4. SRI DAKSHINA MURTHY.G, S/O GOVINDAPPA, AGED ABOUT 44 YEARS, R/AT CHIKKANAYAKANAHALLI TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR-572 214.
5. SRI SOMASHEKARA.H.S., S/O SHIVARAJU, AGED ABOUT 44 YEARS, R/AT VIDYANAGARA, CHIKKANAYAKANAHALLI TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR-572 214.
6. SRI NAGARAJU.M.S., S/O SIDDAPPA.M, AGED ABOUT 44 YEARS, R/AT VIDYANAGARA, CHIKKANAYAKANAHALLI TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR-572 214.
AND:
... PETITIONERS (BY SRI MAHESH S, ADVOCATE) SRI C H BASAVARAJU, S/O HANUMANTHAIAH.S, MAJOR R/AT CHIKKANAYAKANAHALLI TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR-572 214.
... RESPONDENT (BY SRI ANJANEYA, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AS AGAINST THE PETITIONERS HEREIN PENDING ON THE FILE OF C.J. AND J.M.F.C., CHIKKANAYAKANAHALLI AT TUMKUR IN C.C.NO.152/2016 (PCR NO.48/2007).
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioners. Learned counsel for respondent seeks time to submit his arguments. Prayer is rejected. Perused the records.
2. Respondent herein filed a private complaint against petitioners seeking action for the alleged offences punishable under Sections 420, 467, 468 read with 34 of IPC. Learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C. After investigation, the Investigating Officer submitted a ‘B’ report. By order dated 29.12.2009 learned Magistrate rejected the ‘B’ summary report and recorded the sworn statement of the complainant and his witnesses through counsel and issued summons to petitioners. The said order was challenged before this Court in Criminal Petition No.4583/2011 and by order dated 28.1.2015, this Court set aside the order passed by learned Magistrate and remitted the case to learned Magistrate for reconsideration from the stage of receipt of protest petition.
3. The order dated 27.2.2016 passed by the learned Magistrate reveals that after the receipt of the order, learned Magistrate proceeded to record the sworn statement of the complainant and his three witnesses and considering the said material, by impugned order dated 27.2.2016, took cognizance of the above offences and issued summons to petitioners. The procedure followed by the learned Magistrate is contrary to the law laid down by the Hon’ble Supreme Court in the case of KAMALAPATI TRIVEDI v. STATE OF WEST BENGAL reported in [1980] SCC [2] 91, which is followed by this Court in the case of DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER reported in ILR 2018 KAR 1725, wherein the procedure to be followed in case of submission of ‘B’ report has been elaborately considered and 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. Since learned Magistrate has failed to follow the guidelines laid down in the above decisions, impugned order is liable to be set aside. Accordingly, petition is allowed. Impugned order dated 27.2.2016 and all consequent proceedings on the file of Principal Civil Judge and JMFC, Chikkanayakanahalli, are set aside. The matter is remitted to learned Magistrate to consider ‘B’ summary report afresh in the light of the guidelines laid down in the above decisions. All other factual and legal contentions urged by the parties are left open for consideration at appropriate stage.
Sd/- JUDGE MD