IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 6887/2017 BETWEEN LRS OF WAHEED BAIG 1. SMT KHURSHIDA BEGUM ALIAS ZAHIDA BEGUM AGE 70 YEARS.
W/O LATE WAHID BAIG.
2.SMT.NOOR JAHAN BEGUM AGE 45 YEARS, D/O LATE WAHID BAIG W/O LATE AFSAR BAIG 3.SRI.AYUB BAIG AGE 42 YEARS, S/O LATE WAHID BAIG, 4.SRI.YOUNUS BAIG @ NAYEEM AGE 39 YEARS, S/O LATE WAHID BAIG, 5.SRI ALI BAIG AGE 30 YEARS, S/O LATE WAHID BAIG, 6.SMT.KAUSER BEGUM D/O LATE WAHID BAIG, AGE 25 YEARS, W/O MOHAMMED AKHVAN ALL ARE R/O SY.NO.98/2 & SY NO.95/2 EXTENT 2 ACRES 06 GUNTAS AND 2 ACRES 26 GUNTAS OF LAND OF PANDITHANA AGRAHARA SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE RURAL DISTRICT-562125 (By Sri TAJUDDIN, ADV.) AND 1.SUPERINTENDENT OF POLICE C.B.I. GANAGANAGAR, BANGALORE-560 032 2.DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE GOVERNMENT OF KARNATAKA NRUPATHUNGA ROAD, BANGALORE-560 001.
3.INSPECTOR GENERAL OF POLICE C.I.D. BRANCH, FRAUD AND CRIME DETECTION CARLTON HOUSE, PALACE ROAD, BANGALORE CITY-560 001 4.IGP, CENTRAL RANGE MILLERS ROAD, BANGALORE-560 052 5.SUPERINTENDENT OF POLICE BANGALORE RURAL, BANGALORE-560052.
... PETITIONERS 6.STATION HOUSE OFFICER SARJAPURA POLICE STATION ANEKAL TALUK-562125. ... RESPONDENTS (By Sri P PRASANNA KUMAR, SPL.PP FOR R1;
SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R2 TO R6.) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO THE PETITIONER IS APPROACHING BEFORE THIS HON'BLE COURT FOR FURTHER ENQUIRY AND INVESTIGATION ENQUIRY TO BE ORDERED U/S 173(8) CRPC TO THE HIGHER RANKING OF POLICE JUST AS FIRST OR THIRD RESPONDENTS CBI/CID OF POLICE BY VIRTUE OF CAUTION ISSUED TO THE LOWER COURT IN CRL.RP.NO.5020/2017 DATE 01.06.2017 CORRECTION BY ORDER DATED 26.07.2017 PASSED BY THE COURT OF THE III ADDL. DIST. AND S.J., BANGALORE RURAL DISTRICT, SIT AT ANEKAL STATING THAT MAGISTRATE HAS NO POWER TO ORDER GO BEYOND HIS JURISDICTION TO ORDER FOR ENQUIRY TO CBI OR CID OR CCB OF POLICE AND BOOK THE CULPRITS. HENCE ALLOW THE CRL.P.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for petitioners; learned Additional SPP for respondents 2 to 6 and learned Spl.PP for respondent No.1.
2. This petition is filed under Section 482 of Cr.P.C. for the following relief:
“The petitioner is approaching before this Hon’ble Court for further enquiry and investigation enquiry to be ordered under Section 173(8) Cr.P.C. to the higher ranking of police just as first or third respondents CBI/CID of Police by virtue of caution issued to the lower Court in Crl.Revn.Petn: 5020/2017 dt 1-6-2017 correction by order dt 26-7-2017 passed by the Court of III Addl District & Sessions Judge Bangalore Rural District sit at Anekal stating that magistrate has no power to order go beyond his Jurisdiction to order for enquiry to CBI or CID or CCB of Police and book the culprits. Hence allow the criminal petition in the interest of justice and equity?.”
3. Learned counsel for the petitioners submits that the investigation conducted by the local police is not proper. The Investigating Officer has not conducted fair investigation and therefore, the investigation has to be conducted by CBI or CID of Police.
4. The records indicate that PCR filed by the petitioners herein was referred for investigation under Section 156(3) of Cr.P.C., based on which Crime No.23/2010 was registered against ten accused persons. After investigation ‘B’ summary report was submitted before the Court on the ground that the allegations made in the complaint were false. Petitioners herein submitted a protest petition. However, without taking into consideration the said protest petition, the learned Magistrate proceeded to accept the ‘B’ summary report. Hence, the petitioners challenged the said order before this Court in Crl.P.No.4375/2012 under Section 482 Cr.P.C. and this Court by its order dated 6.1.2017 directed the petitioners to approach the Revisional Court under Section 397 of Cr.P.C. Accordingly, the petitioners approached the III Additional District and Sessions Judge, Bengaluru Rural District, in Crl.R.P.No.5020/2017. The learned Sessions Judge at Para No.8 of the order made the following observations:-
“Under Section 397 of Criminal Procedure Code, while deciding a Revision Petition this Court has to examine the validity and legality of the Impugned Order. If the Impugned Order is Prima- facie illegal, then only this Court has to set aside the same. By keeping in my mind about the said aspect I now propose to examine the Impugned Order. As per the Impugned Order the Lower Court by accepting the “B” report filed by the Police, closed the case, by taking the objections to the “B” Report is not filed. In fact, the original Complainant has filed Protest Memo on 24.12.2011 itself. The Certified Copy of the same is filed in this proceedings. Thereafter, on 05.01.2012, the Advocate for the Complainant has filed a Memo praying to change the Investigating Agency before the Lower Court. The Certified Copy of the same is filed in this proceedings. Thereafter, on 17.01.2012 the Advocate for the Complainant has filed a detailed written arguments and prayed for further investigation under Section 173(8) of Criminal Procedure Code before the Lower Court. The Certified Copy of the same is filed in this proceedings. Thereafter, the Lower Court went on adjourning the case for several occasions. Ultimately, the Lower Court has passed the Impugned Order on 31.10.2013, without considering the above-mentioned Protest memo, Memo and written arguments. Therefore, Prima- facie the Impugned Order is illegal and liable to be set aside. Hence, I answer this Point in Affirmative.”
and consequently allowed the revision petition and remanded the case to the trial Court with a direction to restore the case on its file and to proceed with the matter by considering the protest memo.
5. The above facts indicate that the learned Magistrate has not passed any order on the ‘B’ summary report submitted by the police. The law is now well settled that in case of submission of ‘B’ summary report, learned Magistrate is required to go through the contents of the investigation papers filed under Section 173 of Cr.P.C. and if he is of the opinion that the investigation has not been done properly, he has no jurisdiction to direct the police to file the charge sheet. Under the said circumstances, it is for the learned Magistrate to consider whether further investigation is necessary in the matter or whether the evidence is sufficient to proceed in the matter. At this juncture, the petitioner has not made out any case to entrust the investigation to CBI or any other agencies. Merely because adverse report has been submitted by the Investigating Officer cannot be a reason to change the agency at the request of the complainant. ‘B’ summary report submitted by the Investigating Officer has not yet been considered by the trial Court. Therefore, it is premature to hold that the investigation in this case is biased. I do not find any justifiable reason to accede to the prayer made in the petition.
Consequently, the petition being devoid of merit is dismissed and the order of the revisional Court in Crl.R.P.No.5020/2017 is maintained.
Sd/- JUDGE *alb/-.