IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01st DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3286/2017 BETWEEN:
1. Sri.Revu Bhaganu Chavan Aged about 37 years, Minchinala L T Post, Vijayapura Taluk & District.
2. Sri.Ramachandra Aged about 41 years, Minchinala L T Post, Vijayapura Taluk & District.
3. Smt.D D Rathod Aged about 44 years, Minchinala L T Post, Vijayapura Taluk & District.
4. Sri.Krishna D Chavan Aged about 38 years, Minchinala L T Post, Vijayapura Taluk & District.
5. Smt.S.S.Pavar Aged about 47 years, Minchinala L T Post, Vijayapura Taluk & District.
6. Gulab Chandu Jadava Aged about 33 years, Minchinala L T Post, Vijayapura Taluk & District.
7. D.M. Chavan, Aged about 61 years, Minchinala L T Post, Vijayapura Taluk & District.
8. Gopala R Rathod Aged about 46 years, Minchinala L T Post, Vijayapura Taluk & District.
9. Mohan Roopsingh Chavan Aged about 36 years, Minchinala L T Post, Vijayapura Taluk & District.
(By Sri.Ramesha H.E, Advocate) AND:
Smt.Hema Bhai Aged about 45 years, W/o late Sevu Chavan, Amba Bhavani Nilaya, Halukunte Nagara, (K.C.Nagara), Near D C C Bank, Vijayapura District.
…Petitioners … Respondent (By Sri. R.P.Somashekaraiah, Advocate-Absent) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 06.01.2017 in C.C.No.2600/2017 pending on the file of II Additional C.M.M, Bengaluru and allow this criminal petition.
This Criminal petition coming on for hearing, this day, the Court made the following:
O R D E R Heard learned counsel for petitioners. Counsel for respondent is absent. Perused the records.
2. Petitioners are aggrieved by the order dated 06.01.2017 passed in PCR No.8832/2013 by II Addl. Chief Metropolitan Magistrate, Bengaluru, whereby the learned Magistrate issued summons to the petitioners to answer the charges under Sections 420, 468, 471, 120B r/w 34 of IPC.
3. The impugned order is opposed to the guidelines 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.
4. The facts on record indicate that the private complaint filed by the respondent was referred for investigation to the police. Investigating Officer submitted ‘B’ Summary report. Respondent filed protest petition. The learned Magistrate without considering the ‘B’ Summary report proceeded to record the sworn statement of the complainant and solely based on the said sworn statement, the impugned order has been passed.
In the decision referred above, the procedure to be followed by the learned Magistrate in the matter of accepting the ‘B’ Summary report has been delineated 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 position of law and fact, the impugned order is liable to be quashed. Accordingly, petition is allowed. The impugned order dated 06.01.2017 in C.C.No.2600/2017 pending on the file of the II Addl. Chief Metropolitan Magistrate, Bengaluru, is quashed.
Matter is remitted to the learned Magistrate to consider the ‘B’ summary report afresh in the light of the guidelines laid down in the Kamalapati Trivedi’s case supra and thereafter, proceed in accordance with law.
Sd/- JUDGE SV