IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5901 OF 2013 BETWEEN:
SRI.K.M.MUNIYAPPA AGED ABOUT 53 YEARS S/O. K MUNIYAPPA R/AT "NANDANA"
M H S ROAD KANAKAPURA-562 117.
... PETITIONER (BY SRI. D. L. JAGADEESH, SENIOR ADV.,) AND:
1. STATE OF KARNATAKA THROUGH POLICE SUB-INSPECTOR LAW AND ORDER KANAKAPURA TOWN POLICE STATION.
2. SMT. LAKSHMAMMA W/O. LATE K. VENKATAPPA AGED MAJOR 3. SRI. V. VENKATESHAIAH S/O LATE K VENKATAPPA AGED: MAJOR 4. SRI HAMSA KUMAR S/O LATE K VENKATAPPA AGED MAJOR 5. SRI THIMMAPPA S/O. LATE K. VENKATAPPA AGED MAJOR 6. SRI VISHWA PRIYA S/O LATE K VENKATAPPA AGED MAJOR RESPONDENTS 2, 5, AND 6 ARE RESIDING AT MANIYAMBAL VILLAGE GUTTALA HUNASE POST, MARALAVADI HOBLI KANAKAPURA TALUK, RAMANAGARA DISTRICT-562 117.
RESPONDENTS 3 AND 4 ARE RESIDING AT OPP: ST RITS"S CHURCH CHURCH STREET, J C EXTENSION KANAKAPURA-562117.
REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER SRI V. VIJAYA KUMAR S/O. LATE K. VENKATAPPA AGE:MAJOR R/AT NO.8, AYYAPPA SWAMY TEMPLE ROAD, NANJAPPA LAYOUT YELACHENAHALLI BENGALURU-560 062.
... RESPONDENTS (BY SRI.VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1; SRI. N. MAHENDRA, ADV., FOR R2 TO R6 – ABSENT) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS IN C.C.NO.543/2013 (PCR NO.3/2007) ON THE FILE OF THE PRL. C.J. (JR. DN.) AND J.M.F.C., KANAKAPURA, THEREBY DISMISS THE COMPLAINT IN PCR NO.3/2007 MADE BY THE RESPONDENTS 2 TO 6 AGAINST THE PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri.D.L.Jagadeesh, learned Senior counsel for the petitioner and learned Additional SPP for respondent No.1. Sri.N.Mahendra, learned counsel for respondent No.2 to 6 absent. Perused the records.
2. Respondent Nos.2 to 6 filed a private complaint under Section 200 of Cr.P.C. seeking action against the petitioner herein for the offences punishable under Sections 406, 409, 420, 463, 467, 468, 472 and 506 of IPC. Learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C. The P.S.I. of Kanakapura Town Police Station filed ‘B’ report against the petitioner. The complainant submitted his protest petition. Thereafter, the complainant was examined as PW-1 and Ex.C1 to C9 documents were marked on behalf of the complainant. Considering the sworn statement of the petitioner, by the impugned order dated 29.7.2013, the learned Magistrate rejected the ‘B’ report and issued summons to the petitioner to face trial for the above offences.
3. Learned counsel for the petitioner submits that the impugned order is contrary to the decision of 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.
4. Learned Additional SPP has argued in support of the impugned order.
5. The procedure to be followed by the learned Magistrate while accepting or rejecting the ‘B’ summary report has been considered by this Court in Dr. Ravikumar’s case 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.”
6. Since the learned Magistrate has failed to advert his mind to the facts of the ‘B’ summary report and has rejected the ‘B’ report without considering the material collected by the Investigating Agency, the impugned order cannot be sustained.
7. Accordingly, the petition is allowed. The impugned order dated 29.07.2013 in C.C.No.543/2013 (PCR No.3/2007) on the file of the Principal Civil Judge, (Junior Division) and J.M.F.C. Kanakapura and all consequential proceedings arising therefrom are hereby quashed. The matter is remitted back to the learned Magistrate to consider the ‘B’ summary report afresh in the light of the principles laid down in the above decisions.
Sd/- JUDGE VMB