Karnataka High Court
Dr Arvind Rao H T vs Dr Kumuda on 22 September, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION NO.8825 OF 2016
BETWEEN:
1. DR.ARVIND RAO H.T,
AGED 37 YEARS,
SON OF LATE
H.T.JAYARAM RAO,
MAXILLO FACIAL AND
DENTAL SPECIALITY CLINIC,
1ST FLOOR, ABOVE HONDA
MATRIX, MANJUSHREE
BUIDLING, DONGERKERTI,
MANGALURU - 575003.
2. SMT.H.T.SRIMATHI RAO,
AGED 66 YEARAS,
WIFE OF LATE H.T.JAYARAM RAO,
RESIDING NEAR P.V.S
BUILDING, 8TH CROSS,
M.G.ROAD, KODIALBAIL,
MANGALURU - 575 003. ...PETITIONERS
(BY SRI S.G.BHAGAVAN, ADVOCATE)
AND:
1. DR.KUMUDA,
D/O B.GANAPATHI
SHANBHOGUE,
RESIDING AT
"SHREE MAHALASA",
2
HARI NAGAR, OPP:
JUMADIKATTE ROAD,
GANDIBAIL,
UDUPI - 576 102.
2. THE STATE - THROUGH
THE SUB INSPECTOR OF
POLICE, WOMEN P.S,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560001. ...RESPONDENTS
(BY SRI K.J.KAMATH, ADVOCATE FOR R1,
SRI MAHESH SHETTY, HCGP FOR R2)
****
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE ORDER DATED
18.04.2015 PASSED BY THE JMFC (III COURT),
MANGALORE IN CR.NO.14/2014 OF WOMEN P.S.,
REGISTERING THE CRIMINAL CASE IN C.C.NO.1609/2015
AND ORDERING ISSUANCE OF PROCESS/SUMMONS TO
THE PETITIONERS HEREIN FOR THE OFFENCES P/U/S
498A, 504, 506 R/W 34 OF IPC AND THE ORDER DATED
03.10.2016 PASSED BY THE IV ADDITIONAL DISTRICT AND
S.J., D.K., MANGALORE IN CR.R.P.NO.70/2016.
THIS PETITION HAVING BEEN HEARD THROUGH
VIDEO CONFERENCE/PHYSICAL HEARING AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
ORDER
Petitioners have sought to challenge the legality and correctness of the order dated 03.10.2016 passed in Crl.RP.70/2016 by the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, confirming the order dated 18.04.2015 passed by the JMFC (III Court), Mangaluru, in Crime No.14/2015 of Women Police Station, Mangaluru, registering the criminal case as C.C.No.1609/2015 and ordering issuance of process/summons to the petitioners herein for the offence punishable under Sections 498(A), 504, 506 read with 34 of IPC.
2. The facts leading to this petition are that a criminal case is registered in Crime No.14/2014 of Women Police Station, Mangaluru, against the petitioners for the offence punishable under Sections 498(A), 504, 506 read with 34 of IPC on the file of JMFC (III Court), Mangaluru, on the complaint of respondent 4 No.1 herein. After investigation, the Police filed 'B' final report. Respondent No.1 herein filed objection to the final 'B' report filed by the Police on 07.02.2015. On 19.02.2015, the sworn statement of respondent No.1- complainant was recorded and on 25.02.2015, further sworn statement of the respondent No.1-complainant was recorded and Exs.P-1 to P-15 were marked. Two other witnesses were examined as P.Ws.2 and 3 on behalf of the respondent No.1-complainant. On 18.04.2015, the learned Magistrate took cognizance for the offence punishable under Sections 498(A), 504, 506 read with 34 of IPC and issued process to the petitioners herein. Consequently, a case has been registered in C.C.No.1609/2015 and the said case is now pending in the Court of JMFC (III Court), Mangaluru. The revision petition preferred by the petitioners has been dismissed by the order dated 03.10.2016 passed in Crl.RP.No.70/2016 by the IV 5 Additional District and Sessions Judge, Dakshina Kannada, Mangaluru.
3. Heard learned counsel for the petitioners, learned counsel for the respondent No.1-complainant and learned High Court Government Pleader for respondent No.2-State. Perused the records.
4. Though various grounds are urged for quashing the proceedings, learned counsel for the petitioners has mainly relied upon the contention that the protest application is not in the form of complaint. The procedure as contemplated for taking cognizance has not been followed. Without taking cognizance, the complainant cannot be examined. In view of the non compliance of the procedure prescribed, the proceedings initiated by ordering the issuance of process/summons to the petitioners cannot be sustained in law. In support of the said contentions, learned counsel has relied upon the following decisions reported in: 6
1. ILR 2018 KAR 1725 in the case of Dr.Ravikumar vs. Mrs.K.M.C.Vasantha and another;
2. ILR 1997 KAR 994 in the case of Basappa vs. State of Karnataka.
5. Per contra, learned counsel for respondent No.1-complainant has justified the order passed by the learned District and Sessions Judge in criminal revision petition confirming the order passed by the learned Magistrate. It is submitted that there are no valid grounds to quash the proceedings or to interfere with the order passed by the learned Magistrate ordering issuance of process/summons to the petitioners. In support of his contentions, learned counsel has relied on the decision reported in (2009) 1 SCC 681 in the case of B.Jagdish and another vs. State of Andhra Pradesh and another.
7
6. Having heard the submissions of learned counsel for the petitioner and learned counsel for respondent No.1-complainant, this Court has gone through the order dated 18.04.2015 passed by the learned Magistrate and the operative portion of the said order reads as under:
"The 'B' report submitted by P.S.I. of Women Police Station is hereby rejected.
Cognizance is taken for the offences punishable U/s 498(A), 504, 506 R/w 34 of IPC.
The office is directed to register the case against the Accused persons viz., Dr.Aravind Rao and Smt.Shrimathi Rao as C.C. for the offences punishable U/s 498(A), 504, 506 R/w 34 of IPC and issue summons to the Accused No.1 & 2."
7. On careful perusal of the order passed by the learned Magistrate it is evident that the procedure prescribed has not been properly followed. It is noticed 8 that the Police have submitted 'B' summary report before the Court. As could be seen from the order of the trial Court there is no mention regarding accepting or rejecting of the 'B' report at the initial stage when the said report was submitted by the Police, but simultaneously at the time of issuing summons, 'B' summary report has been rejected. No order has been passed with reference to 'B' summary report before taking cognizance on the basis of the objection statement to the 'B' summary report filed by respondent No.1-complainant. Further it is seen that after filing of the protest application, the learned Magistrate has proceeded to give an opportunity to respondent No.1- complainant by observing that on enquiry 'B' report one more opportunity can be given to respondent No.1- complainant to lead sworn statement and has further recorded the statement of respondent No.1-complainant and proceeded to issue process/summons against petitioners-accused by rejecting 'B' summary report. 9 Thus, it is evident that the procedure followed by the learned Magistrate is not in accordance with law.
8. In the decision reported in ILR 2018 KAR 1725 in the case of Dr.Ravikumar vs. Mrs.K.M.C.Vasantha and another the coordinate Bench of this Court relying on the decision reported in AIR 1968 SC 117 in the case of Abhinandan Jha vs. Dinesh Mishra has narrated about the procedure to be followed by the learned Magistrate while passing orders for issuance of summons/notices after submission of the 'B' summary report. It is observed in paragraph No.7 as under:
"7. Issuance of summons to the accused will have a serious repercussion, i.e., calling upon a person to the Court is also a very serious act of the Court. Therefore, the procedure contemplated as noted above has to be very scrupulously and meticulously followed by the Court. The Magistrate has to explore all the options as noted above in 10 accordance with law at right stages, which has not been done in this particular case. The Learned Magistrate has relied upon the contents of the Protest Petition and the sworn statement for the purpose of rejecting the 'B' Summary Report, which is not proper and correct. He has to pass orders on the 'B' Summary report before taking cognizance on the Protest Petition for the reasons already narrated in the earlier paragraphs of this judgment."
The principle laid down in the aforesaid decision is aptly applicable to the facts of this case.
9. Learned counsel for respondent No.1- complainant has relied on a decision reported in (2009) 1 SCC 681 in the case of B.Jagdish and another vs. State of Andhra Pradesh and another, wherein it is observed that at the stage of quashing of a order taking cognizance, the accused cannot be permitted to use the material which could be available to him only as his defence evidence. But in the instant case the issue 11 involved is regarding the procedure to be followed as such, the said decision is not aptly applicable to the facts of this case as the learned Magistrate has committed procedural irregularities and the defects which are incurable in nature.
10. For the foregoing reasons, this Court is of the opinion that the learned Magistrate has passed the impugned order without following the procedure which cannot be sustained in law and the learned District and Sessions Judge has also committed error in confirming the said order. Hence, I proceed to pass the following:
ORDER:
i. Petition is allowed. Consequently, the order dated 03.10.2016 passed in Crl.RP.70/2016 by the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, confirming the order dated 18.04.2015 passed by the JMFC (III Court), Mangaluru, in Crime No.14/2015 of Women Police Station, Mangaluru, registering the 12 criminal case as C.C.No.1609/2015 and ordering issuance of process/summons to the petitioners herein for the offence punishable under Sections 498(A), 504, 506 read with 34 of IPC are set-aside.
ii. The matter is remanded back to the JMFC (III Court), Mangaluru to proceed from the stage of taking cognizance.
All other contentions urged by the respective parties are kept open.
Since the present criminal case is of the year 2015, the trial Court shall dispose of the matter as early as possible but not later than six months from the date of receipt of certified copy of this Order.
Registry is directed to send the intimation to the concerned Court forthwith.
Sd/-
JUDGE BSR