Karnataka High Court
Udaya S/O Gurupadappa Sankapal vs The State Of Karnataka on 21 June, 2024
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NC: 2024:KHC-D:8385
CRL.P No. 104242 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO. 104242 OF 2022 (482)
BETWEEN:
1. UDAYA S/O. GURUPADAPPA SANKAPAL,
AGE. 54 YEARS, OCC. BUSINESS,
R/O. BHAVANI NIVAS, PLOT. NO. 25,
SLNAR GALLI, MADHAVPUR VADAGAON,
BELAGAVI, DIST. BELAGAVI.
2. VIJAY S/O. GURUPADAPPA SANKAPAL,
AGE. MAJOR, OCC. BUSINESS,
R/O. SANKAPAL GALLI, RAIBAG,
DIST. BELAGAVI.
...PETITIONERS
(BY SRI. PRASHANT S. HOSMANI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY SPP,
HIGH COURT OF KARANATAKA, DHARWAD BENCH.
Digitally signed
by MANJANNA 2. SHAMGOUDA S/O. PARAGOUDA PATIL,
E AGE. MAJOR, OCC. BUSINESS,
Location: HIGH
COURT OF R/O GALATGA, TQ. CHIKODI,
KARNATAKA DIST. BELAGAVI 590021.
...RESPONDENTS
(BY SRI. JAIRAM SIDDI, HCGP FOR R1;
SRI. VYAS DESAI, ADV. FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., IS
SEEKING TO QUASH THE ORDER DATED 10.12.2021 BY JMFC IV
COURT BELAGAVI REGISTERING CRIMINAL CASE AGAINST THE
PETITIONER FOR OFFENCES PUNISHABLE U/S 406, 468, 469, 471,
109, 177 R/W. 34 OF IPC IN CC NO. 501/2021 AND THE PRIVATE
COMPLAINT DATED 30.12.2013 FILED BY 2ND RESPONDENT
PRODUCED AT ANNEXURE-D AND A RESPECTIVELY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:8385
CRL.P No. 104242 of 2022
ORDER
Heard learned counsel for the petitioners, learned High Court Government Pleader for respondent No.1-State and learned counsel for respondent No.2-de-facto complainant.
2. For the sake of convenience, the parties are referred to as per their rank referred to in the claim petition before the Tribunal.
3. Perused the records.
4. The records disclosed that respondent No.2- Shamgoua S/o Paragouda Patil, the de-facto complainant has filed a private complaint under Section 200 of the Criminal Procedure Code (for short, 'the Cr.P.C.') for the offences punishable under Sections 406, 468, 469, 471, 109 and 177 read with Section 34 of the Indian Penal Code (for short, 'the IPC) against accused Nos.1 and 2.
5. The allegation made in the private complaint is that the complainant and accused Nos.1 and 2 are -3- NC: 2024:KHC-D:8385 CRL.P No. 104242 of 2022 partners in "M/s Bhavani petroleum Company", Station road, Raibag. Later, accused Nos.1 and 2 have concocted and manipulated the records and proposed to reconstitute the firm M/s Bhavani Petroleum Company, by forging the signature of the complainant on the documents produced before the Manager and the Divisional Manager of Indian Oil Corporation, R.P.D. Cross, Tilakawadi Belagavi, and hence, committed an offence.
6. Soon after institution of the private complaint, the trial Court referred the matter to jurisdictional Police for investigation and report under Section 156(3) of Cr.P.C. Hence, jurisdictional Police have registered the case in Crime No.49/2014 for the aforesaid offences. This leads to registration of FIR and investigation.
7. Later, the Police have investigated the matter and submitted 'B' summary report to the Court and the Court passed an order on 17.09.2019, rejecting the 'B' summary report and posted the matter for sworn -4- NC: 2024:KHC-D:8385 CRL.P No. 104242 of 2022 statement of complainant and thereafter, cognizance was taken and issued process against accused Nos.1 and 2. The order of rejecting 'B' report and issue of process has been called in question before this Court.
8. Learned counsel Sri.Prashant S. Hosamani, for petitioners has vehemently contended that the trial Court has not even considered the contents of 'B' summary report and has not whispered any thing about 'B' summary report as to why same has to be rejected. Secondly, he contended that the objections filed to 'B' summary report does not contain any specific allegation against the petitioners which attract the provisions of Sections 406, 468, 469, 471, 109 and 177 read with Section 34 of IPC, to take cognizance. Thirdly, learned counsel for the petitioners, the sworn statement given by the respondents also does not contain any specific allegations which attract the above provisions of Indian Penal Code. Therefore, the learned Magistrate without looking into all these matters -5- NC: 2024:KHC-D:8385 CRL.P No. 104242 of 2022 has issued summons to the accused which is bad in law and the same is liable to be quashed.
9. On careful perusal of the entire material on records, it is noticed that the Tilakawadi Police, Belagavi, submitted 'B' summary report before the Court. As could be seen from the order sheet of the trial Court, there is no whisper in the order sheet regarding accepting and rejecting of 'B' summary report but the trial Court in single line as held that "I am of the opinion that the complainant is to be given an opportunity to prove his case in the interest of justice". It is noticed that, no detailed or reasoning order has been passed with reference to accepting or rejecting of 'B' summary report, before taking cognizance on the basis of the objections statement to 'B' summary report filed by the complainant.
10. On the other hand, it is seen that immediately after the filing of the protest petition, the learned Magistrate has proceeded to provide an opportunity to the -6- NC: 2024:KHC-D:8385 CRL.P No. 104242 of 2022 complainant to record sworn statement of the complainant before the Court and proceeded to issue process against accused by rejecting the 'B' summary report.
11. The procedure followed by learned Magistrate is not in accordance with law. It is well recognized principles of law that, once the Police submitted 'B' summary report and protest petition is filed with the same, irrespective of the 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 before it. The Hon'ble Supreme Court in the case of Udai Shankar Awasthi - Vs- State of Uttar Pradesh and Another1 at Paragraph No.40 has observed as follows:
"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the 1 (2013) 2 SCC 435 -7- NC: 2024:KHC-D:8385 CRL.P No. 104242 of 2022 appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
12. But none of these procedures have been followed by the learned Magistrate. On the other hand, as could be seen from records, the learned Magistrate even without assigning any reasons on the 'B' summary report and protest petition, has rejected the 'B' summary report. After going through the contents of protest petition, the trial Court has directed to provide an opportunity to the complainant to give his sworn statement and after recording sworn statement of the complainant and witnesses, the Magistrate has issued process against the accused.
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13. From perusal of the material available on record, the learned Magistrate has committed procedural irregularity and defects which are curable in nature and on which ground itself, the order is not sustained for the above said reasons. I am of the opinion that learned Magistrate has passed impugned order without following proper procedure. If the learned Magistrate simply looks Sections 200 to 204 of the Cr.P.C. that itself is sufficient and would guides the Magistrate as to how he has to acts upon. Non-applicability of judicious mind to statutory provisions in this case lead to the irregularities committed by the learned Magistrate. Hence, the said order is liable to be set aside. Hence, I proceed to pass the following:
ORDER i. Criminal petition is allowed.
ii. The order dated 17.09.2017 passed by the learned JMFC-IV Court, Balegavi, in -9- NC: 2024:KHC-D:8385 CRL.P No. 104242 of 2022 P.C.No.1/2014, C.C.No.501/2021 is hereby set aside.
iii. The entire matter stands restored on the file and the learned Magistrate with direction to follow the procedure as narrated in the body of this order and only looking after the provision of Section 200 and 204 meticulously.
iv. The learned Magistrate has to pass an appropriate order in accordance with law.
In view of disposal of the main petition, pending IA's, if any, stands disposed of.
Sd/-
JUDGE AC/ct-an List No.: 1 Sl No.: 56