IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4883 OF 2013 BETWEEN:
1. SRI M.K. MURTHY S/O NARAYANA UDUPA AGED ABOUT 70 YEARS 2. GURUPRASAD S/O M K MURTHY AGED ABOUT 30 YEARS 3. GOVARDHAN UDUPA S/O NARAYANA UDUPA AGED ABOUT 40 YEARS 4. RAJA UDUPA S/O NARAYANA UDUPA AGED ABOUT 62 YEARS PETITIONERS 1 TO 4 ARE RESIDING AT ALDUR TOWN ALDUR POST CHIKMAGALUR DISTRICT-577 111.
(BY SRI.ARUNA SHYAM M, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ALDUR POLICE STATION REPRESENTED BY THE ... PETITIONERS STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE-560 001.
2. SRI NISAR AHMED S/O ABDUL KHADER AGED 65 YEARS, M/S. SOLDIER MEDICALS ALDURU CHIKMAGALUR DISTRICT - 577 111.
... RESPONDENTS (BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1 SRI.S.T.KRISHNAIAH. ADVOCATE FOR SRI.E.S.INDIRESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.997/2012 ON THE FILE OF THE PRL.C.J., AND JMFC, CHIKMAGALUR.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have called in question the summons issued to them by the Principal Civil Judge and JMFC., Chikmagalur in C.C.No.997/2012 for the alleged offences punishable under Sections 427, 457, 380, 504, 506 read with Section 34 of IPC.
2. Heard learned counsel for petitioners and learned counsel for respondent No.2 and learned Additional SPP for respondent No.1-State.
3. Respondent No.2 herein filed a complaint before respondent No.1-police, based on which, FIR was registered in Crime No.5/2011. After investigation, police submitted a ‘B’ summary report. Respondent No.2 filed objections to the ‘B’ summary report. Learned Magistrate recorded the sworn statement of the complainant and two witnesses and by order dated 22.09.2012 took cognizance of the above offences and issued summons to the petitioners.
4. Placing reliance on the decision of the Hon’ble Supreme Court in the case of KAMALAPATHI TRIVEDI VS. STATE OF WEST BENGAL reported in (1980) SCC 91 which is followed by this Court in the case of DR.RAVIKUMAR VS. MRS.K.M.C.VASANTHA AND ANOTHER reported in ILR 2018 KAR 1725, learned counsel for petitioners would submits that the procedure followed by the learned Magistrate is contrary to the guidelines laid down in the above decisions. Further relying on the decision of this court in the case of BASAPPA AND OTHERS VS. STATE OF KARNATAKA AND ANOTHER reported in ILR 1987 KAR 994, learned counsel has pointed out that the objections to the ‘B’ summary report did not contain any allegations constituting the offences punishable under Sections 427, 457, 380, 504, 506 read with Section 34 of IPC and in the said circumstances, there was no basis for the learned Magistrate to take cognizance of the alleged offences and issue summons to the petitioners.
5. Learned Additional SPP-II appearing for respondent No.1-State does not dispute the fact that the Protest Petition submitted by respondent No.2 did not contain any allegation constituting the above offences.
6. Learned counsel for respondent No.2 however has argued in support of the impugned action contending that there is a prima facie material to show the involvement of the petitioners in the alleged offences and therefore, there is no reason to interfere in the matter.
7. I have considered the submissions made by the learned counsel for the parties and have perused the records.
8. Insofar as the factual matrix is concerned, there is no dispute that criminal law was set in by respondent No.2 by lodging a complaint before the police. The police after investigation submitted a ‘B’ summary report. The same was objected to by respondent No.2. I have gone through the Protest Petition filed by respondent No.2. Except contending that the police have failed to conduct investigation properly; that the ‘B’ summary report submitted by the police is against law; that the police have not investigated the case properly; not visited the place and not recorded the statements of any witnesses, respondent No.2 did not make any allegations against the petitioners before the Magistrate requiring the Magistrate to take cognizance of the alleged offences.
9. The procedure to be followed by the Magistrate while accepting or rejecting the ‘B’ summary report has been elaborately considered by this Court in the case of DR.RAVIKUMAR VS. MRS.K.M.C.VASANTHA AND ANOTHER wherein relying on the guidelines laid down by the Hon’ble Supreme Court in the case of KAMALAPATHI TRIVEDI VS. STATE OF WEST BENGAL, at Para 5(ii) (iii) and (iv), it is held as under:-
“5(i) xxxx (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. “ 10. Learned Magistrate has failed to follow the above procedure and has not passed any considered judicious order while rejecting the ‘B’ Summary Report.
11. As already stated above, the Protest Petition did not contain any allegations against the petitioners constituting any of the offences as such there was no basis for the learned Magistrate to proceed in the matter to take cognizance or to issue summons to the petitioners. In that view of the matter, petitioners have made out a case to quash the order passed by the learned Magistrate as well as the subsequent proceedings conducted by the learned Magistrate. As a result, the impugned order dated 22.09.2012 and consequent proceedings taken up by the learned Magistrate are liable to be quashed. Accordingly, petition is allowed. The order dated 22.09.2012 issuing summons to the petitioners is quashed. The matter is remitted to the learned Magistrate to consider the ‘B’ Summary Report afresh in the light of the law laid down in the decisions referred supra. Liberty is reserved to the complainant to file fresh Protest Petition, if desired.
Sd/- JUDGE Prs*