IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6359 OF 2015 BETWEEN:
SRI CHANDRASHEKAR S/O SRI.NINGAPPA AGED ABOUT 53 YEARS, R/AT NO.31, BRINDAVAN APARTMENTS, AKASHAWANI CIRCLE, V.V.MOHALLA MYSURU CITY-570002.
... PETITIONER (BY SRI: G.B.NANDISH GOWDA, ADVOCATE FOR R B SADASIVAPPA, ADVOCATE) AND 1. THE STATE BY V.V.PURAM POLICE STATION, MYSORE CITY, MYSORE.
REP. BY PUBLIC PROSECUTOR HIGH COURT BUILDING, HIGH COURT OF KARNATAKA BENGALURU-560001.
2. SMT.V.N.MALATHI D/O SRI.NARAYANA RAO AGED ABOUT 64 YEARS, R/AT NO.208, 2ND MAIN, MATHURANAGARA, METAGALLI, MYSORE-570016.
... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1 P.NEHRU, ADVOCATE FOR R2-ABSENT) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.3344/2012 PENDING ON THE FILE OF IV ADL. I C.J. AND J.M.F.C. (JR. DN.), MYSURU.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for the petitioner and learned SPP-II for respondent No.1.
Learned counsel for respondent No.2 is absent.
2. The only contention urged by the learned counsel for the petitioner is that the order dated 15.09.2012 passed by the learned Magistrate issuing summons to the petitioner to face trial for the offence punishable under section 506 Indian Penal Code does not reflect any reason and discussion on ‘B’ summary report submitted by the Investigation Officer.
3. The impugned order reads as under:- “15.09.2012 Instant complaint referred to jurisdiction P.S. and after investigation filed ‘B’ report. Complainant filed objection to ‘B’ report.
Complainant present and examined as PW-1. The complainant in his evidence has reiterated the averments made in the complaint. I have perused the complaint, sworn statement, and the documents. Complainant has produced the relevant documents. The complainant in his evidence has reiterated the averments made in the complaint. I am satisfied that, the complainant has made out a prima facie case to issue process against the accused persons for the offence punishable under Section 506 of Indian Penal Code. Hence, I pass the following:
ORDER Office is directed to register a case against the accused persons for the offence punishable under Sec.506 Indian Penal Code and to issue S.S. to the accused.
Returnable by 04.01.2013 Sd/- 15/9 IV AFCJ & JMFC, Mysore”
4. A perusal of the above order indicates that the learned Magistrate has not even referred to the accusations made against the petitioner. There is absolutely no discussion on the ‘B’ summary report submitted by the Investigation Officer. The procedure to be followed by the learned Magistrate while considering the ‘B’ summary report has been discussed 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.”
5. As the learned Magistrate has failed to follow the procedure as laid down in the above decision, the impugned order dated 15.09.2012 passed by the learned Magistrate directing summons to the petitioner cannot be sustained.
Consequently, the petition is allowed. Impugned order dated 15.9.2012 is quashed. The matter is remitted to the learned Magistrate to consider the matter afresh in terms of the guidelines laid down in the aforesaid decision.
Sd/- JUDGE *mn/-