Karnataka High Court
Dr Suranjith Sorake vs The State Of Karnataka on 14 December, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.27392/2017 (GM - RES)
BETWEEN
DR. SURANJITH SORAKE
SON OF SRI. JAYAVIKRAM
AGED ABOUT 40 YEARS
RESIDING AT SCS HOUSE
SHIVBAGH
MANGALURU-575 002
... PETITIONER
[BY SRI. SUYOG HERELE, ADV.]
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY THE STATION
HOUSE OFFICER, MANGALURU EAST
POLICE STATION, NORTH SUB-DIVISION
MANGALURU CITY - 575 001
2. DR. JEEVARAJ SORAKE
SON OF SRI. S. CHANDRASHEKAR
AGED ABOUT 65 YEARS
RESIDING AT SRIRAMA DHAMA
KADRI KAMBLA, KADRI
MANGALURU-575 002
... RESPONDENTS
[BY SRI. R.D.RENUKARADHYA, HCGP FOR R1;
SRI. ANISH ACHARYA, ADV. FOR R2]
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 25.03.2017 IN ENTIRE
PROCEEDINGS IN P.C.R.69/2013 C.C.112/2017 ON THE
FILE OF THE II ADDL. CHIEF JUDICIAL MAGISTRATE,
MANGALURU D.K. THEREBY INITIATING CRIMINAL CASE
AGAINST THE PETITIONER FOR THE OFFENCES
PUNISHABLE UNDER SEC. 406, 419, 467, 469, 471, 504,
506 R/W SEC. 34 OF THE INDIAN PENAL CODE AT ANNEX-
A AND ALL FURTHER PROCEEDINGS PURSUANT THERETO
AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in C.C.No.112/2017 pending before II Additional Chief Judicial Magistrate, Mangaluru, Dakshina Kannada.
2. Heard Sri. Suyog Herele, learned counsel appearing for the petitioner, Sri.R.D.Renukaradhya, learned HCGP for respondent No.1, Sri.Anish Acharya, learned counsel appearing for respondent No.2 and have perused the material on record.
33. Though the learned counsel appearing for the petitioner though has advanced several contentions, would restrict his submissions for the present, to the issue with regard to the order taking cognizance, by the learned Magistrate.
4. The order taking cognizance by the learned Magistrate reads as follows:
"25.03.2017 Perused the case records, evidence and documents.
The present case is a private complaint preferred by the complainant against the accused No.1 to 5 in respect of the offences punishable under sections 406,419,467,469,471,504,506 of IPC r/w Section 34 of IPC. Along with the complaint the complainant has furnished the list of documents.
On 19.11.2013 this court by exercising its power U/S 156(3) of CrPC has referred the matter to jurisdictional police for the purpose 4 of conducting of investigation and to submit the report after investigation.
The Police Sub-Inspector of East police station, Mangalore has submitted the charge sheet with 'B' final report on 26.12.2015. To the said 'B' final report filed by the Sub- Inspector of police, the complainant has preferred his objections on 18.2.2016.
Thereafter, the sworn statement of the complainant was recorded as PW.1 and 13 documents furnished from the side of complainant and marked as Ex.P1 to p 13 and closed his side.
Heard the counsel for complainant. On examination of the contents of the complaint, the evidence by way of sworn statement of complainant in support of his contention discloses the commission of offences alleged against the accused No.1 to
5. At this stage of the proceedings, this court is of the opinion that the materials produced by the complainant i.e. private complaint is sufficient to attract the ingredients of the offences as specified in the complaint i.e. Sections 406, 419, 467, 469, 471, 504, 506 of 5 IPC r/w Section 34 of IPC. alleged against the accused persons. The materials placed before the court is sufficient to take cognizance of the aforesaid offences alleged against the accused persons. Hence, for the aforesaid reasons, I proceed to pass the following:
ORDER This court has taken cognizance of the offences punishable under sections 406, 419, 467, 469, 471, 504, 506 of IPC r/w section 34 of IPC as per the provisions of CrPC against the accused persons of this case.
Office to register the case as C.C. in concerned register.
The office is hereby directed to issue process against the accused persons if sufficient process furnished and required copies of complaint and documents with list of documents furnished.
For appearance of accused before the court.
Await process:-
2nd A.S.C.J. & C.J.M., MANGALURU D.K. "6
5. The learned Magistrate though has passed an order which reflects application of mind, there is no reference to the 'B' report having been filed by the Police. The complaint is registered against the petitioner for an offences punishable under Sections 406, 419, 467, 469, 471, 504 and 506 read with Section 34 of the Indian Penal Code on 19.11.2013. Investigation was directed under Section 156(3) of Cr.P.C. After Investigation, the Police filed a 'B' summary report on 26.12.2015 to which the complainant filed his protest petition / objections on 18.02.2016.
6. The learned Magistrate, after considering the protest petition, takes cognizance for the offences punishable under Sections 406, 419, 467, 469, 471, 504, 506 read with Section 34 of the Indian Penal Code against the petitioner. It is this order inter alia that is called in question in the present petition. The order 7 taking cognizance is extracted supra. The cognizance is taken without even reference to the fact as to why the learned Magistrate would find that the protest petition or the statements recorded are overwhelming than a 'B' Summary report that is filed by the Police.
7. This is a requirement of law, as is laid down by the co-ordinate Bench of this Court in the case of Dr.Ravikumar vs. Mrs.K.M.C.Vasantha and another1, wherein this Court while summarizing the entire procedure for trial holds 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 1 ILR 2018 KAR 1725 8 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 investigation 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 between ABHINANDAN JHA vs. DINESH 9 MISHRA (para 15) and also Full Bench decision of Apex Court in between KAMALAPATI TRIVEDI vs. STATE OF WEST BENGAL (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 cogniznace 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' 10 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 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 11 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 thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the 12 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) After 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 13 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 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."
8. In the light of the judgment rendered by the co-ordinate Bench and the fact that the order taking 14 cognizance does not even refer to the B report and the facts of the present case being identical, in so far as the said issue, I deem it appropriate to pass the following:
ORDER
i) Writ Petition is allowed in part.
ii) The proceedings in C.C.No.112/2017 pending before II Additional Chief Judicial Magistrate, Mangaluru, Dakshina Kannada stands quashed.
iii) The matter is remitted back to the hands of the Court of II Additional Chief Judgicial Magistrate, Mangaluru, Dakshina Kannada, to proceed from the stage of passing an order on the Protest Petition and the 'B' report bearing in mind the observations made in the course of this order.
Sd/-
JUDGE KG