IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5983/2016 BETWEEN:
SRINIVAS GOWDA, S/O LATE NARASIMAIAH, AGED 54 YEARS, OCC: AGRICULTURE, R/O NO.44, “AKASHAYA:, 5TH CROSS, NISARGA LAYOUT, BASAVANAPURA MAIN ROAD, K.R.PURAM, BANGALORE-560 036.
... PETITIONER AND:
(BY SRI CHETAN DESAI, ADVOCATE FOR SMT. RASHMI JADHAV, ADVOCATE) 1. STATE OF KARNATAKA, REPRESENTED BY WHITEFIELD POLICE, BANGALORE SOUTH, BANGALORE, REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BANGALORE-560 001.
2. M.N.CHITTAPPA, S/O CHETTIAPPA, AGED: MAJOR, R/AT NO.72, CUNNINGHAM ROAD, BANGALORE-5600 52.
... RESPONDENTS (BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP FOR R1, SRI MANMOHAN P.N., ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 23.07.2015 IN C.C.NO.402/2016 PASSED BY THE A.C.J.M., BANGALORE DISTRICT, BANGALORE AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS PENDING THEREON IN C.C.NO.402/2016 PASSED BY THE A.C.J.M., BANGALORE DISTRICT, BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner. Learned counsel for respondent No.2 prays for time. Prayer is rejected. Heard learned Additional State Public Prosecutor for respondent No.1. Perused the records.
2. Petitioner is aggrieved by the order dated 23.7.2015 passed by the learned Additional Chief Judicial Magistrate, Bengaluru District in C.C.No.402/2016, whereby learned Magistrate rejected the ‘B’ summary report submitted by the Investigating Officer and issued summons to the petitioner to answer the charges to the offences punishable under Sections 447, 506, 468, 471, 420 read with 34 of IPC.
3. The procedure followed by the learned Magistrate is contrary to the law laid down 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 the case of DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER reported in ILR 2018 KAR 1725, wherein the procedure to be followed in case of submission of ‘B’ report has been elaborately considered and laid down 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.”
4. Since learned Magistrate has failed to follow the guidelines laid down in the above decisions, impugned order is liable to be set aside. Accordingly, petition is allowed. Impugned order dated 23.7.2015 and all consequent proceedings on the file of Additional Chief Judicial Magistrate, Bengaluru, are set aside. The matter is remitted to learned Magistrate to consider ‘B’ summary report afresh in the light of the guidelines laid down in the above decisions. All other factual and legal contentions urged by the parties are left open for consideration at appropriate stage.
Sd/- JUDGE MD