IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5173/2013 BETWEEN:
Sri. Pappy George, S/o Geevarghese Pappy, Aged about 60 years, R/a Herbon Villa,Kannandangalam, Chettikulangara Post - 690106 Kerala State. ….Petitioner (By Sri.Purushothaman, K.N. Advocate) AND:
1. State of Karnataka, By Nandagudi Police Station, Reptd. by State Public Prosecutor, High Court of Karnataka, Bangalore – 560001.
2. Sri. Joseph Chacko, S/o late P.J.Chacko, Aged about 53 years, R/a 176/B, Park Avenue, Babusapalya, Kalyannagar, Bangalore – 560043. …Respondents.
(By Sri.Vijaya Kumar Majage, Addl. SPP for R1, R2 – served and unrepresented) This Criminal Petition is filed u/s.482 of Cr.P.C., praying to set aside the impugned order dated 24/12/2012 of taking cognizance of offence of abetment as against the petitioner (accused No.10) in C.C.No.189/2013 on the file of the Civil Judge (Jr. Dn) and JMFC, Hoskote, Bangalore Rural District and quash all further criminal proceedings against this petitioner etc.
This petition coming on for admission this day, the Court made the following;
ORDER Heard learned counsel for the petitioner and learned Additional S.P.P, appearing for respondent No.1. Respondent No.2 is served and unrepresented.
2. Petitioner has taken serious exception to the order passed by the learned Magistrate dated 24/11/2012, whereby the learned Magistrate has directed to register a case against the petitioner as accused No.10, as abettor to the offences committed by accused Nos.1 to 9 in respect of offences punishable under Sections.143, 147, 323, 325, 506 read with 149 of IPC.
3. Respondent No.2 filed a private complaint against 10 accused persons. The matter was referred to C.P.I, Nandagudi P.S, for investigation under Section under Section 156(3) of Cr.P.C. The C.P.I, Nandagudi P.S, submitted a ‘B’ report in so far as petitioner herein is concerned and filed a charge sheet against accused Nos.1 to 9 for the above offences. The complainant filed a protest petition and let in his sworn statement and produced Ex.P.1 to Ex.P.3. Considering the said material, the learned Magistrate, by the impugned order has directed registration of the case against the petitioner as abettor to the above offences.
4. A reading of the impugned order, on the face of it, discloses that the learned Magistrate has not followed the procedure laid down by the Hon’ble Apex Court in the case of Kamalapati Trivedi v. State of W.B. reported in (1980)2 SCC 91, which was followed by this Court in the case of Dr.Ravikumar vs. 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 vs. DINESH MISHRA (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between KAMALAPATI TRIVEDI vs. 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. The learned Magistrate has neither rejected the ‘B’ summary report nor accepted the same.
There is no discussion whatsoever on the material collected by the investigating officer. Even with regard to the sworn statement of the complainant, I do not find any material therein, in support of the charge under Section. 109 of IPC. Except stating that the petitioner herein, namely, accused No.10 was coming near the resort and was threatening that if the complainant fails to vacate and hand over the resort, he would kill him. This allegation even if accepted in its entirety would make out an independent offence and not an abetment of the offences committed by accused Nos.1 to 9. There is no averment whatsoever in the entire sworn statement that the petitioner herein has abetted accused Nos.1 to 9 in the commission of the above said offences. In the absence of any such material, the learned Magistrate has committed an error in passing the impugned order.
6. In view of the aforesaid, the impugned order cannot be sustained. Consequently, the petition is allowed. The impugned order dated 24/11/2012 is quashed. The matter is remitted to the learned Magistrate to consider the ‘B’ report afresh, in the light of the procedure laid down by the Hon’ble Supreme Court in the above decision.
Sd/- JUDGE Msu