Karnataka High Court
Sri Ajay Uday Revankar S/O.Uday ... vs Sri Anil Sadanand Pawaskar on 25 January, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.101466/2021
BETWEEN:
AJAY S/O.UDAY REVANKAR
AGE. 27 YEARS, OCC. GOLDSMITH
R/O. DEVALIWADA,
DURGADEVI TEMPLE,
BAAD, KARWAR (U.K)-581306
...PETITIONER.
(BY SHRI JAYSHAM JAYASIMHA RAO & SHRI ADITYA KRISHNA
PANDEY, ADVOCATES.)
AND:
1. ANIL SADANAND PAWASKAR
AGE. 45 YEARS, OCC. GOLDSMITH
R/O. GURUMATH,
PADMANABHANAGAR,
BAAD, KARWAR (U.K)-581306
2. STATE OF KARNATAKA
BY UK WOMEN PS
REPRESENTED BY SPP
HIGH COURT BUILDINGS, DHARWAD
...RESPONDENTS.
(BY SHRI NEELENDRA D. GUNDE, ADVOCATE, FOR R.1;
SHRI RAMESH CHIGARI, HCGP, FOR R.2.)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
ORDER DATED 02/12/2020 PASSED BY THE PRL. SENIOR CIVIL
JUDGE AND CJM, KARWAR, TAKING COGNIZANCE OF THE OFFENCES
PUNISHABLE UNDER SECTIONS 447, 504, 323, 354 AND 506 READ
WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860, AGAINST THE
PETITIONER IN C.C.NO.482/2020 AND QUASH THE ENTIRE
PROCEEDINGS IN CC NO.482/2020 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND CJM, KARWAR, ETC.,.
THIS PETITION COMING ON FOR DICTATING ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner in this petition calls in question an order dated 2.12.2020, by which the Principal Senior Civil Judge and Chief Judicial Magistrate, Karwar, took cognizance of the offences punishable under Sections 447, 504, 323, 354, 506 read with Section 34 of the Indian Penal Code, 1860 and registers C.C.No.482 of 2020. The petitioner also calls in question entire proceedings in C.C.No.482 of 2020.
2. Heard Shri Jaysham Jayasimha Rao, learned counsel for the petitioner and Shri Neelendra D.Gunde, learned counsel for respondent no.1 and Shri Ramesh Chigari, learned High Government Pleader for respondent no.2.
3. Brief facts as projected by the prosecution are as follows:-
3a) The petitioner is involved in the craft and trade of gold. The 1st respondent is claimed to have defrauded the petitioner in one of the transactions between them. The petitioner sets the criminal law in motion against the 1st respondent by registration of a complaint. On doing so, the 1st respondent registers a complaint against the petitioner on 2.7.2020 before the jurisdictional police. Pursuant to the said complaint, the police registered N.C.No.74 of 2020. Aggrieved by non-registration of FIR on the complaint registered by the 1st respondent, the 1st respondent files a complaint against the petitioner for offences punishable under Sections 504, 506, 447, 323 and 354 read with Section 34 of the IPC invoking Section 200 of the Code of Criminal Procedure, 1973, before the Principal Civil Judge and CJM, Karwar, on 12.8.2020. The complaint is registered as PCR No.6 of 2020.
b) On registration of the said complaint, the learned Magistrate orders investigation under Section 156(3) of the Cr.P.C. by his order dated 19.8.2020 and later an FIR came to be registered on the said complaint for the aforesaid offences in Crime No.9 of 2020. The police began investigation in to the 4 offences as alleged. While the investigation was in progress, the trial Court on 3.11.2020 posts the matter for hearing the complainant on maintainability of the complaint and records sworn statement of the complainant CW.1 as also marks Exs.C1 to C5, further records the sworn statement of two other persons CW.2 and CW.3 and posts the matter for orders on 2.12.2020.
After recording of the aforesaid statements, the trial Court by order dated 2.12.2020 takes cognizance of the offences punishable under Sections 447, 504, 323, 354 and 506 read with Section 34 of the IPC and registers a criminal case in C.C.No.482 of 2020 and issues process against the petitioner.
c) All the aforesaid events before the trial Court have happened after the trial Court directed the police to investigate into the matter under Section 156(3) of the Cr.P.C. The Police after investigation filed 'B' summary report before the trial Court on 14.12.2020 holding that none of the offences alleged are tenable against the petitioner. The situation that emerges is the trial Court after having ordered investigation, without waiting for the out-come of the investigation, recorded the sworn statement and took cognizance of the offences and after taking 5 cognizance the report of the police is filed, which is a 'B' summary report. It is this action of the trial Court taking cognizance of the offence that is called in question in the subject petition.
4. The learned counsel appearing for the petitioner would vehemently argue and contend that the procedure adopted by the learned Magistrate is unknown to law as having ordered investigation on 10.9.2020 it ought to have awaited the report of investigation and then followed the procedure as contemplated in law. During the pendency of investigation the statements are recorded and cognizance is taken after which the Police filed a 'B' report in the matter. Therefore all that the trial Court has done between the direction to conduct investigation and taking cognizance of the matter are all acts without jurisdiction.
5. On other hand the learned counsel appearing for the complainant/ respondent would vehemently refute the submissions made and contends that a detailed order is passed taking cognizance for the offences punishable as aforesaid and detailed reasoning is also rendered thereto but would accept the 6 fact that it is before the Police could file its report of investigation. He however contends that this procedural formality will not vitiate entire proceedings and the trial will have to continue in which the petitioner will have to come out clean in such trial.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
7. The afore-narrated facts and the events that have occurred before the trial Court are all a matter of record not being in dispute are not reiterated. The only issue that falls for my consideration is whether the learned Magistrate after having directed investigation could have taken cognizance before the report of investigation being filed before him and continued the trial on such cognizance notwithstanding the fact of filing 'B' report.
8. On filing of the complaint by the 1st respondent, the learned Magistrate on 10.9.2020 refers the complaint to the 2nd respondent for investigation albeit on a requisition made by the 7 1st respondent. It is after the aforesaid reference, FIR came to be registered in Crime No.9 of 2020. Without waiting for the outcome of the report, sworn statements of witnesses are recorded and cognizance is taken. The result of investigation directed by the learned Magistrate on 10.9.2020 is the filing of 'B' summary report by the Police on 14.12.2020. By then the learned Magistrate had already taken cognizance for the offences as aforesaid and was seeking to conduct trial on the basis of cognizance that he has taken. Whether the order of cognizance bears application of mind or otherwise is not the issue that is to be dealt with in the case at hand. Taking cognizance prior to the report of investigation and the procedure to be followed once the 'B' report is filed is what is germane to be noticed.
9. In identical circumstances, a coordinate Bench of this Court formulating these very issues in the case of B.S. YEDIYURAPPA v. STATE OF KARNATAKA - (2020) SCC ONLINE KAR.1540 has held as follows:
6. On the basis of the submissions made by both the counsels, the points, which would arise for consideration of this Court are as under:8
(i) Whether when a complaint has been lodged and/or information furnished of an offence to a Station House Officer, the Station House Officer can himself seek for permission to investigate a non-cognisable offence or as a corollary to it, it is only the informant/complainant, who is to seek permission for investigation from the Magistrate?
(ii) Whether the complaint as regards violation of Section 123(3) of the Representation of Peoples Act, 1951 is limited to the candidate or does it extend to any third party?
(iii) Whether the violation of Section 123(3) of the Representation of Peoples Act, 1951 would amount to a penal offence making such person liable for criminal prosecution?
(iv) Whether promotion of enmity or hatred is a sine qua non for invoking section 125 of the Representation of Peoples Act, 1951?
(v) Whether in the present case on the basis of the allegation made in the complaint can it be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the persons who 9 had gathered for election raily in terms of Section 171C of the IPC?
(vi) What is the procedure to be followed by the Magistrate when a B-report is filed? Can a Magistrate suo moto reject the B-report without notice being ordered on the complainant?
(vii) Whether the Magistrate can suo moto take cognizance of the offence without issuance of notice to the complainant?
(viii) What is the procedure to be followed by the Magistrate before issuance of summons to a accused, who is not residing within its jurisdiction?
(ix) Whether the Magistrate could have at the stage of taking cognizance relied upon the video recording in a compact disk, without it being accompanied by a certificate under Section 65-B of the Indian Evidence Act?
(x) Is this a fit and proper case for this Court to interfere in the orders passed by the Magistrate under Section 482 of Cr.P.C.? and
(xi) What order?
10Issues (vi) and (viii) are germane for consideration of the present lis. These issues are answered by the Bench against the prosecution in the following manner:
10. Point Nos. (vi) and (vii):
(vi) What is the procedure to be followed by the Magistrate when a B-report is filed? Can a Magistrate suo moto reject the B-report without notice being ordered on the complainant?
(vii) Whether the Magistrate can suo moto take cognizance of the offence without the issuance of notice to the complainant?
10.1. Both the points being related to each other are taken up for consideration together.
10.2. As held by the Apex Court in the cases reported in H.S. Bains, Director, Small Saving- Cum-Deputy Secretary Finance, Punjab, Chandigarh (supra) and Vasanti Dubey (supra), relevant paragraphs having been extracted hereinabove; the Magistrate had the following three options, after completion of the investigation and the Police having submitted a B-report namely:
i. If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint.
ii. He may not agree with the police report and may take cognizance of the offence on the basis of the 11 original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section
200.
iii. Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203.
However, when the Police submits a final report or closure report in regard to a case which has been lodged by the Informant or complainant, the Magistrate cannot direct the Police to straightway submit the charge-sheet."
10.3. In the present circumstances, it is seen that firstly the Magistrate has not issued a notice to the complainant, let alone the examination of the complainant under Section 200 of the Cr.P.C. by recording sworn statement of the complainant, post the submission of the B report inviting the comment or statement of the Informant as regards the B report submitted.
10.4. This procedure has been enshrined in order to protect a citizen of the Country from unnecessary harassment after submission of the B- report, when a B-report has been submitted, it is generally accepted. It is only in exceptional cases, where the B-report has been filed and the complainant is not agreeable to the B-report that the enquiry is conducted under Section 200 of Cr.P.C; in a proceedings pertaining to non- cognizable offences, the station house officer is not entitled to take cognizance of the non-cognizable offence, it is only on being directed by the jurisdictional Magistrate that he conducts an 12 investigation to enquire as to whether there is prima facie offence made out; once the investigation leads an adverse report in terms of no offence having been made out, it is only the complainant, who can find fault with such investigation or B-report and requests the Magistrate to continue with the matter on the basis of the complaint filed by finding out defects in the investigation and/or by establishing otherwise that there is a prima facie case made out for the prosecution of the accused. In the present case, no notice was issued to the complainant, the Magistrate has rejected B-report without anyone objecting to the B-report and has taken cognizance of the alleged offence suo moto, such a procedure is neither contemplated nor sanctioned under the provisions of Criminal Procedure Code.
10.5. The Hon'ble Apex Court has in the aforesaid decisions clearly stated about the procedure to be followed in order to safeguard the interest of parties; these safeguards not having been followed by the Magistrate, the rejection of the B-report and taking cognizance of the offences without service of notice on the complainant and/or objection on the part of the complainant is not sustainable.
10.6. Be that as it may. Even if the complainant filed objections or questioned the B report, for the Magistrate to take cognizance of offences, there should be an offence prima facie made out under Section 125 of the R.P. Act or Section 171F of IPC.
10.7. As held above, no criminal prosecution can be laid for violation of Section 123 of the R.P. Act. As answered to the points above, I am of the considered opinion that the complaint as such does not make out any case under Section 125 of the R.P. Act or Section 171F of IPC. Thus the question 13 of setting the criminal law into motion on the basis of the complaint which does not prima facie make out an offence, is not sustainable.
10.8. I answer the above points by holding that 10.9. On the filing of the B report, the Magistrate is required to notify the Informant/Complainant about the same. It is only if the Informant opposes or objects to the B report that the Magistrate can record the sworn statement of the Informant. Iv the sworn statement were to establish defects in the investigation, the Magistrate may set aside the B report and proceed with the case after taking cognizance.
10.10. A Magistrate cannot suo moto reject the B-report without notice being ordered on the complainant.
10.11. A magistrate can reject the B- report only if the sworn statement of the Informant were to prima-facie make out on offence having been committed by the Accused.
10.12. A Magistrate cannot suo moto take cognizance of the offence without the issuance of notice to the complainant.
10. Therefore, the issue with regard to procedure to be followed by the learned Magistrate when a 'B' report is filed and the power of the learned Magistrate to suo motu reject the 'B' report without notice to the complainant or taking cognizance of the offence without issuance of notice to the complainant is held 14 to be illegal. Therefore, issuance of notice to the complainant after the 'B' report is imperative and certain procedure to be followed thereon is mandatory. Another coordinate Bench of this Court in the case of RAVI KUMAR v. STATE OF KARNATAKA
- ILR 2018 KAR 1725 has laid down the procedure as to how a learned Magistrate who is in receipt of a 'B' report pursuant to an investigation should act. The coordinate Bench has held as follows:
5. The procedure followed by the Learned Magistrate is not in accordance with law. 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.15
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 between Abhinandan Jha v. Dinesh Mishra [AIR 1968 S.C. 117.] (para
15) and also Full Bench decision of Apex Court in between Kamalapati Trivedi v. State of West Bengal [(1980) 2 SCC 91.] (second head note.)
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 16 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.
v) If the court is of the opinion that the materials collected by the police in the report submitted under section 173 of Cr. P.C. are not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under Section 190 read with 200 Cr. P.C. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complaint/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct the investigation under section 202 of Cr. P.C., to be made by a Police officer or by such other officer as he 17 thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3) of Cr. P.C., once the magistrate takes cognizance and starts inquiring into the matter himself.
vi) fter taking such report under section 202 of Cr. P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s. 203 of Cr. P.C. as the case may be.
vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s. 204 of Cr. P.C. But, none of these procedures have been followed by the Learned Magistrate. On the other hand, as could be seen from the records, the Learned Magistrate even without rejecting the 'B' Summary Report and without taking cognizance of the offences, but after going through the contents of 18 the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. On the basis of the contents of the Protest Petition, and after relying upon the contents of the Protest Petition and the sworn statement, the Learned Magistrate has rejected the 'B' Summary Report which virtually amounts to putting the horse behind the Cart.
11. In the light of the aforesaid judgments in the cases of B.S.Yediyurappa and Ravikumar, the case at hand will have to be remitted back now to the hands of the learned Magistrate to follow the procedure on the 'B' report as is directed by this Court in the aforesaid judgments. Sequentially the order taking cognizance on 2.12.2020 would be rendered unenforceable.
12. For the aforesaid reasons, I pass the following:
ORDER
i) Criminal petition is allowed in part.
ii) The order taking cognizance dated 2.12.2020 in C.C.No.482/2020 is quashed.
iii) The matter is remitted back to the hands of the Principal Senior Civil Judge and Chief 19 Judicial Magistrate, Karwar, to follow the procedure as observed in the case of Ravikumar and then proceed with the matter in accordance with law.
SD JUDGE Mrk/-