Karnataka High Court
Sri D Thayappa vs State Of Karnataka on 23 February, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL REVISION PETITION No.17/2018
C/W
CRIMINAL REVISION PETITION Nos.18/2018,
19/2018, 20/2018 & 21/2018
BETWEEN:
SRI D THAYAPPA
S/O DODDAMUNIYAPPA
AGED ABOUT 45 YEARS
R/AT IBBALURU VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560034
...PETITIONER IN CRL.R.P.17/2018
(BY SRI K.P.BHUVAN, ADV.,)
SRI CHIKKANNAIAH
S/O DODDAMUNIYAPPA
AGED ABOUT 56 YEARS
R/AT IBBALURU VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560034
... PETITIONER IN CRL.R.P.18/2018
(BY SRI K.P.BHUVAN, ADV.,)
SMT. DODDA MUNIYAMMA
D/O MEGANNA
2
AGED ABOUT 61 YEARS
R/AT IBBALURU VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560 034
... PETITIONER IN CRL.R.P.19/2018
(BY SRI K.P.BHUVAN, ADV.,)
SMT. MUNIYAMMA
W/O LATE THIMMARAYAPPA
AGED ABOUT 61 YEARS
R/AT IBBALURU VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560 034
... PETITIONER IN CRL.R.P.20/2018
(BY SRI K.P.BHUVAN, ADV.,)
SRI.M.MUNIDASAPPA
S/O LATE THAKKADAPPA
AGED ABOUT 44 YEARS
R/AT IBBALURU VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560 034
... PETITIONER IN CRL.R.P.21/2018
(BY SRI K.P.BHUVAN, ADV.,)
AND:
1. STATE OF KARNATAKA
BY HSR LAYOUT POLICE STATION
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU - 560001
2. SRI N NARAYANA REDDY
3
S/O V R NARASA REDDY
AGED ABOUT 45 YEARS
3. SRI N RAMACHANDRA REDDY
S/O V R NARASA REDDY
AGED ABOUT 50 YEARS
ACCUSED NO.2 & 3 ARE
R/AT NO 174
AGRA VILLAGE AND POST
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560 034
... COMMON RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP FOR R1
R2 & R3-NOTICE DISPENSED WITH V/O
DATED 23.02.2018)
CRL.RP 17/2018 IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 09.10.2017
PASSED BY THE LXX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN P.C.R.NO.12/2012 AND
REMAND THE MATTER WITH DIRECTION TO COURT
BELOW TO PROCEED FURTHER IN ACCORDANCE WITH
LAW.
CRL.RP 18/2018 IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU IN PCR NO.13/2012 DATED 09.10.2017 AND
REMAND THE MATTER WITH DIRECTION TO COURT
BELOW TO PROCEED FURTHER IN ACCORDANCE OF LAW.
CRL.RP 19/2018 IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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BANGALORE IN PCR NO.14/2012 DATED 09.10.2017 AND
REMAND THE MATTER WITH DIRECTION TO COURT
BELOW TO PROCEED FURTHER IN ACCORDANCE OF LAW.
CRL.RP 20/2018 IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE IN PCR NO.15/2012 DATED 09.10.2017 AND
REMAND THE MATTER WITH DIRECTION TO COURT
BELOW TO PROCEED FURTHER IN ACCORDANCE OF LAW.
CRL.RP 21/2018 IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPL.J,
BANGALORE IN PCR NO.16/2012 DATED 09.10.2017 AND
REMAND THE MATTER WITH DIRECTION TO COURT
BELOW TO PROCEED FURTHER IN ACCORDANCE IN LAW.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
COMMON ORDER
Notices to be issued to respondent Nos.2 and 3 are dispensed with as the trial court has not taken any cognizance against them and issued any process. Learned Government Pleader takes notice for respondent No.1 in all the above said cases.
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2. Heard the learned counsel for the petitioner as well as the learned Government Pleader. Perused the records.
3. It is seen that the petitioner in the above said cases are the complainant in PCR 12/2012 to 16/2012 respectively. The allegations are that the accused persons have committed offences under Sections 419, 420, 471 of IPC and also under Section 3(1)(5)(7)(9)(14), 3(2)(1) of SC/ST Atrocities Act, 1989. After lodgment of the above said cases, it appears that, the learned II Addl. City Civil and Sessions Judge has referred the same for investigation to the jurisdictional police. In fact, the police have submitted "B" summary report which was challenged by the complainants by filing objection statement to the same. The trial court without passing any orders on "B" report and without taking cognizance on the original complaint or on protest petition, directly proceeded to record the sworn statement of the 6 complainants and thereafter passed the orders rejecting the complaints filed, under Section 203 of Cr.P.C. The said order in all the above cases are called in question before this Court.
4. The learned counsel for the petitioner provided the certified copy of the order sheet of the trial court for consideration of this court.
5. I have carefully perused the orders passed by the trial court. The trial court has committed a serious procedural irregularities in passing the impugned orders for the reason that after receipt of "B" summary report by the police, without providing opportunity to the complainants, the trial court has passed the impugned order. It is the duty of the court to peruse the entire "B" summary report in order to find out whether "B" report submitted by the police is sufficient to take cognizance and that sufficient materials are available in the "B" report itself to constitute the alleged offences to take 7 cognizance and to issue process against the accused. If for any reason, the court comes to the conclusion that the "B" report cannot be accepted, the court has to pass appropriate orders rejecting the "B" report and thereafter only, the court has to proceed to peruse the original complaint as well as the protest petition filed by the petitioner. After perusal of the original complaint and protest petition, the court has to find out whether there is any allegations made in the complaint and petition which discloses any factual aspects constituting any offences under any penal law for time being in force. In such an eventuality, the court has to take cognizance of those offences and thereafter has to proceed to record the sworn statement of the complainant and his witnesses. After recording the statement of the witnesses on the complainant side and also looking into the complaint averments, the sworn statement witnesses and the documents produced, the court has to come to the conclusion whether there are any sufficient materials to 8 issue process against the accused. If the answer is in the affirmative, the court has to issue process under Section 204 of Cr.P.C. If sufficient materials are not available after going to the contents of the complaint, protest petition and the statement of the witnesses and documents, if any produced, the court has to record the reasons for the same and then dismiss the complaint under Section 203 of Cr.P.C.
6. None of the above said procedures have been followed by the learned Trial Judge. He did not pass any order on "B" report nor he has taken any cognizance on the complaint or the protest petition, nor he has considered the statement of the witnesses and the documents produced along with the sworn statement for consideration and thereafter passed orders under Section 203 of Cr.P.C. Therefore, the proceedings before the trial court is vitiated by serious procedural irregularities. Unless, the trial court passes orders on "B" report and 9 takes cognizance on the complaint or protest petition, the court gets no jurisdiction to proceed with recording sworn statement of the witnesses.
7. On careful perusal of the order sheet produced before the court, it is specifically noted that the complainants have produced as many as 14 documents in support of their sworn statement. But none of those documents have been referred to with reference to sworn statement and complaint averments. But the trial court has dismissed the complaints only on the main ground that the complaints have been filed after lapse of 9 years. The court has to look into the allegations made in the complaints, what are the offences alleged so as to ascertain the period of limitation to file the complaint under Section 468 of Cr.P.C. If the complaint is in time and no fixed limitation is there in statute, then court has to consider whether the delay itself is sufficient to dismiss the complaints, but nothing is discussed in the 10 order. If delay is there, what is the explanation given by the complainants in the sworn statement and their complaints are also not whispered in the order. Complainants have specifically alleged that the documents are forged and there was cheating by the accused under Section 420 of IPC which is punishable with punishment of 7 years. Therefore, there is no question of limitation prescribed under Section 408 of Cr.P.C. to file complaint within such fixed time. When no limitation is fixed merely because the same has been filed after along lapse of time, the court has to look into whether delay is sufficient to dismiss the complaint on facts.
8. None of those points have been taken into consideration by the trial court while disposing the case i.e., while dismissing complaints under Section 203 of Cr.P.C.
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9. Looking into the above said facts and circumstances of the case, there are serious procedural irregularities occurred which are not remediable before this court. Incurable defects have to be cured only by the trial court. I feel it just and necessary to set aside the order passed by the trial court in dismissing the complaints filed under Section 203 of Cr.P.C. in all the above said cases and remit the matters to the trial court for disposal of the case in accordance with law after following strict procedure as contemplated under Sections 200 to 204 of Cr.P.C. Hence, I proceed to pass the following order:
ORDER Criminal Revision Petitions are hereby allowed. Consequently, the complaint and the protest petition filed by the complainants in all the cases are restored on the file of learned Trial Judge with a direction that, the trial judge has to peruse the "B" summary report submitted by the police first and pass orders on 12 "B" summary report. If 'B' report is not accepted thereafter examine the complaint averments and the protest petition. If the allegations made therein constitute any offences, then to take cognizance of the said offence and then only proceed to record sworn statement. If the court proceeds to record the sworn statement thereafter only the court has to consider the averments made in the complaints, protest petition and the statement of the witnesses and the documents therein and thereafter pass appropriate orders either under Section 203 or under Section 204 of Cr.P.C.
Sd/-
JUDGE DM