IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.1530/2016 BETWEEN:
1. SRI G SRIPATHI RAO AGED ABOUT 39 YEARS R/AT H.NO.2-1-89 GUNDIBAIL KUNJIBETTU POST-576102 UDUPI UDUPI DISTRICT 2. SRI. RAGHAVENDRA HEBBAR S/O VENKATARAMANA HEBBAR AGED 48 YEARS R/AT KINNIMULKY N.G.O. COLONY, UDUPI-576101 ... PETITIONERS (BY SRI: S K ACHARYA, ADVOCATE) AND 1. STATE OF KARNATAKA BY UDUPI TOWN POLICE STATION UDUPI-576101 REP BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BANGALORE-01 2. B.GIRISH AITHAL AGED 40 YEARS S/O B.K. AITHAL R/AT NO.76, BADAGUBETTU BAILOOR, UDUPI-576101 ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SMT: HALEEMA AMEEN, ADVOCATE FOR SRI: S.VISHWAJITH SHETTY, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH ENTIRE PROCEEDINGS IN C.C.NO.70/2016 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, UDUPI.
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 Addl. SPP appearing for respondent No.1 and learned counsel for respondent No.2 and perused the records.
Even though learned counsel for the petitioners has urged large number of contentions based on merit, on going through the records maintained by the trial court it is noticed that, after investigation, respondent Police submitted ‘B’ summary report before the court. Learned Magistrate has passed a cryptic order on this ‘B’ report which reads as under:
“The ‘B’ report filed by the investigation officer is hereby rejected. Register a criminal case against the accused in Register III for the offences punishable under Sec. u/ss.384, 504, 506 and 341 read with Sec. 34 of IPC and issue process to him returnable by 27.02.2016 if PF paid.”
2. The said order is written in the order-sheet. There is nothing on record to indicate that learned Magistrate has passed any separate order assigning reasons. The above order clearly indicates that learned Magistrate has not passed a judicious order on the ‘B’ summary report. In this context, it may be relevant to refer to the law 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 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.”
Accordingly, petition is allowed. The impugned order dated 08.01.2016 and consequent proceedings taken up by the learned Magistrate in C.C.No.70/2016 are quashed. Matter is remitted to learned Magistrate to consider ‘B’ summary report afresh in the light of the guidelines laid down in the above decision.
All legal and factual contentions urged by the parties are left open for consideration at appropriate stage.
Sd/- JUDGE Bss.