IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7859 OF 2014 BETWEEN:
SRI. S. BALAKRISHNA NAYAK AGED ABOUT 50 YEARS S/O. LATE S.D. NAYAK RESIDING AT SMSP COMPLEX II FLOOR UDUPI-576 101.
PRACTICING ADVOCATE AT UDUPI (BY SRI: BHADRINATH. R., ADVOCATE) AND 1. THE STATE OF KARNATAKA BY UDUPI TOWN POLICE REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001.
2. SRI. PRAKASH U AGED ABOUT 48 YEARS S/O. GOPALA SALIAN BALAJI ENTERPRISES SMSP COMPLEX, II FLOOR UDUPI-576 101.
... PETITIONER AND ALSO RESIDING AT DOOR NO.10-1-57C BEHIND HOTEL SWADESHI MARUTHI VEETHIKA ROAD UDUPI-576 101.
.RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1 AJITH A. SHETTY, ADV., FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.1319/2014 ON THE FILE OF PRL. SENIOR CIVIL JUDGE & C.J.M. COURT, UDUPI AS FOUND AT ANNEXURE-A, SAME AGAINST THE PETITIONER HEREIN.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for the petitioner, learned counsel for respondent No.2 and learned Addl. SPP for respondent No.1- State.
Perused the records.
2. Petitioner is aggrieved by the order dated 20.10.2014 passed by the Addl. Civil Judge and JMFC, Udupi, whereby the learned Magistrate has taken cognizance of the offences punishable under sections 465, 471 and 468 of Indian Penal Code and has issued summons to the petitioner. The impugned order is contrary to the guidelines 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 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.”
Hence, the petition is allowed. Impugned order dated 20.10.2014 and the consequent proceedings pending on the file of Addl. Civil Judge & JMFC, Udupi is quashed. The matter is remitted to the learned Magistrate to consider the ‘B’ report afresh in terms of the guidelines laid down in the aforesaid decision.
Sd/- JUDGE *mn/-