IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3836 OF 2016 BETWEEN:
1. SRI JAYAPRAKASH NEETTIYATH S/O.RAVINDRANATH NEETTIYATH AGED ABOUT 38 YEARS R/AT 2-73/1, ACHUS NILAYA NEAR GOVT. SCHOOL JEPPINAMOGARU MANGALURU-575 009 2. MRS.SANDHYA JAYAPRAKASH W/O.JAYAPRAKASH NETTIYATH AGED ABOUT 34 YEARS R/AT 2-73/1, ACHUS NILAYA NEAR GOVERNMENT SCHOOL JEPPINAMOGARU MANGALURU-575 009 3. MR.VARIJAKSHAN P. S/O.KAPPUNNI GUPTHAN AGED ABOUT 42 YEARS RESIDING NEAR ROYAL FACTORY MAHAKALIPADPU ROAD MANGALURU-575 001 4. MRS.SMITHA VARIJAKSHAN W/O.VARIJAKSHAN AGED ABOUT 36 YEARS RESIDING NEAR ROYAL FACTORY MAHAKALIPADPU ROAD MANGALURU-575 001 … PETITIONERS (BY SMT.HALEEMA AMEEN FOR SRI S.VISHWAJITH SHETTY, ADVOCATES) AND:
1. STATE OF KARNATAKA REPRESENTED BY RURAL POLICE STATION MANGALURU REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001 2. MR.JOSEPH C.A. SRI C.V.ANTONY AGED ABOUT 39 YEARS R/AT ISIRI HOUSE NADIGUTHU, YEKKU MANGALURU-575 002 …RESPONDENTS (BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1; R2 IS SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 14.01.2016 MADE IN CC.NO.596/2016 (PC.NO.201/2011) PENDING BEFORE THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS (III COURT), MANGALURU, D.K. AND THE ENTIRE PROCEEDINGS IN THE SAID CASE REGISTERED AGAINST THE PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 403, 406, 465, 420 READ WITH SECTION 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioners and learned Additional SPP for respondent No.1. Respondent No.2 is served and unrepresented. Perused the records.
2. Though learned counsel for petitioners has urged legal contention touching the very jurisdiction of the learned Magistrate to issue summons to the petitioners, yet on perusal of the impugned order dated 14.01.2016, it is noticed that the learned Magistrate has passed the said order in violation of the guidelines/directions issued 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 ‘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.”
In view of the above, the petition is allowed. The impugned order dated 14.01.2016 is set aside. Matter is remitted to the learned Magistrate to consider ‘B’ summary report afresh in the light of the guidelines laid down in above decisions.
All other legal and factual contentions urged by the parties are left open.
Sd/- JUDGE LB