IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8196/2015 Between:
Girish, S/o Srinivasa Gowda, Aged about 36 years, Occ: Sub Inspector of Police, Udupi.
P/R/at Sarahalli Village, Aldur Hobli, Chikkamagaluru Taluka – 577 111. …Petitioner (By Sri Umesh P.B., for Sri.R.B.Deshpande, Advocates) And:
1. The State of Karnataka, By Aldur Police Station, Chikkamagaluru District – 577 111.
2. D.D.Chandregowda, S/o Devegowda, Aged about 53 years, Occ: Agriculturist, R/o Dongudige Village, Aldur Hobli, Chikkamagaluru Taluka – 577 111. ...Respondents (By Sri.Vijayakumar Majage, Addl. S.P.P., for R1; Sri.K.N.Mohan, Advocate for R2) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the entire proceedings in C.C.No.216/2013 against the petitioner pending on the file of Prl.Civil Judge and JMFC Court, Chikkamagalur and the order dated 31.03.2015 passed by the II Addl. District and S.J., Chikkamagaluru in Crl.R.P.No.72/2013.
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 Addl. SPP for respondent No.1 and learned counsel for respondent No.2 and Perused the records.
2. Though petitioner has urged various contentions in the petition, however in the course of hearing it is noticed that summons issued by learned Magistrate is not in accordance with section 200 of Cr.P.C.
3. Initially, a private complaint was filed by respondent No.2 against the petitioner and other accused. This complaint was referred for investigation under section 156(3) of Cr.P.C. The Investigating Officer after investigation, submitted ‘B’ summary report. Respondent No.2 filed his protest petition.
Learned Magistrate without passing any orders on ‘B’ summary report, straightaway proceeded to record the sworn statement of the complainant. This procedure is contrary to the law 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 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 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. It is also noticed that the sworn statement of the complainant is recorded through the Advocate appearing for complainant contrary to the Division Bench decision of this High Court in NAGANAGOUDA VEERANAGOUDA PATIL & Another vs. MALATESH H. KULKARNI & Others, ILR 1997 Karnataka 2091.
5. In view of these defects and illegalities, the proceedings conducted by learned Magistrate in C.C.No.216/2013 subsequent to the submission of ‘B’ summary report are quashed. The matter is remitted to the court of Principal Civil Judge and JMFC, Chikkamagaluru to consider ‘B’ summary report afresh in the light of the procedure contemplated in the above said decisions. All other legal contentions urged by the parties are left open for consideration at appropriate stage.
Petition stands allowed in terms of the above.
Sd/- JUDGE Bss