Karnataka High Court
Mr. Abhinav Khare vs State Of Karnataka on 29 May, 2023
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.4741 OF 2022
BETWEEN
MR. ABHINAV KHARE
S/O ASHOK KHARE
AGED ABOUT 38 YEARS
RESIDENT OF NO.376
ASIAD GAMES VILLAGE
SIRI FORT
NEW DELHI - 110 049. ... PETITIONER
(BY SRI R. SWAROOP ANAND, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY STATION HOUSE OFFICER
NAZARBAD POLICE STATION
NO.294, 5TH CROSS
NAZARBAD
MYSORE-570010.
2. MR T C RAJENDRA
S/O CHINAPPPA NAYAKA
AGED ABOUT 55 YEARS
RESIDENT OF NO.27
THE LANCER 8TH MAIN
YADAVGIRI
MYSORE - 570 020.
... RESPONDENTS
(BY SRI KIRAN S. JAVALI, SPP-I ALONG WITH
SRI B.J. ROHITH, HCGP FOR R1
SRI K. LAKSHMIKANTH, ADVOCATE FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO i) QUASH THE ORDER DATED
05.04.2022 PASSED BY THE HONBLE JUDICIAL MAGISTRATE OF
FIRST CLASS (III COURT) MYSORE, IN CRIME NO. 98/2015
WHEREUNDER, SUMMON WAS ISSUED TO THE PETITIONER ( AT
ANNEXURE A) ii) QUASH THE IMPUGNED PROTEST PETITION
FILED BY RESPONDENT NO.2 IN CRIME NO.98/2015, PENDING
ON THE FILE OF HONBLE JUDICIAL MAGISTRATE OF FIRST
CLASS (III COURT) MYSORE ( AT ANNEXURE B) AND ETC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.05.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the order of taking cognizance by the JMFC-III, Mysore in respect of Crime No.98/2015 after rejecting the 'B' final report.
2. Heard the arguments of learned counsel for the petitioner, learned SPP-I for respondent No.1-State and learned counsel for the respondent No.2.
3. The case of the prosecution is that on the first information filed by respondent No.2 through his wife one Anitha, the Nazrabad Police, Mysore registered a case in Crime No.98/2015 on 12.03.2015 for the offences 3 punishable under Sections 323, 341, 355, 504, 506 read with Section 34 of IPC alleging that on 05.03.2015, the informant received a phone call from Poonacha, the Police Inspector of Hunsur Police station informing that he should be brought before the Superintendent of Police, Mysore District. When the first informant sought the reason, the Police Inspector told that he should comply the order of the Superintendent of Police (the present petitioner) and when he was near the Nalapak Hotel, Ontikoplu, the Police Inspector came in his Department vehicle, the complainant sat in the car, the complainant was taken to office of the Superintendent of Police and thereafter, the complainant was asked to come on Sunday i.e., on 08.03.2015 at 5.00 p.m., and when the complainant went to the S.P. office, the door was closed and a woman was sitting in front of the door. At that time, the Sub-Inspector-Poonacha and Constable-Manjunath came there and the complainant was sitting in his car and the said police officials informed about the complainant and arrival of S.P. When the complainant went inside the S.P. office, one Reeta a 4 woman aged about 50 to 55 years was also inside the S.P. office, at that time, the S.P.-the present petitioner abused him in filthy language and told that the complainant required to pay money to Reeta and he has also compelled him to pay the money immediately. When the complainant was talking with the S.P.-the present petitioner, he took his footwear, assaulted with the same and made him to fall down, then he kicked him and also assaulted with chappal in presence of the said Reeta. When the complainant raised alarm, the police constables came inside and rescued him. Then he was sent by his car and then the complainant went to the K.R. Hospital, took the treatment as in-patient and thereafter, he filed the complaint. After receiving the complaint, the police registered the FIR against the present petitioner who is S.P. and after the investigation, the Police have filed 'B' final report. Then the notice was issued to the defacto-complainant, a protest petition was filed. Then the learned Magistrate had rejected the protest petition and on 05.04.2022, took the 5 cognizance against the petitioner and issued summons, which is under challenge.
4. The learned counsel for the petitioner has contended that the learned Magistrate committed error in taking cognizance against the petitioner. The order is opposed to the facts and contrary to the law and the order has passed without judicial mind. The learned Magistrate by dealing with the protest petition has adopted a procedure which is contrary to the law. There is no ingredient to attract the offence against the petitioner. The protest petition cannot be construed as the complaint is filed under Section 2(d) of Cr.P.C. The protest petition filed by the advocate but not by the complainant. Therefore, the Magistrate should not have taken cognizance. The learned Magistrate permitted respondent No.2 to file an affidavit in view of sworn statement which is contrary to the law. It is further contended that the petitioner was on leave to his office on 08.03.2015, therefore, the question of committing offence on 08.03.2015 does not arise. The 6 petitioner has produced the medical records to show that he was on sick leave which was not considered by the Magistrate and the protection under Section 197 of Cr.P.C. is available to the petitioner where previous sanction is necessary. The State Human Rights Commission passed an order for recommending to initiate proceedings against the petitioner. There is no speaking order passed by the State Human Rights Commission. The sanction is necessary for the proceedings against the public servant as per the judgment of the Hon'ble Supreme Court and therefore, taking cognizance without obtaining sanction is illegal. The petitioner is a public servant and offence committed during the discharge of his official duty and by taking various contentions prayed for allowing the petition.
5. Per contra, learned SPP-I has contended that the 'B' final report has been filed by the Police after thorough investigation, but the protest memo was not signed by the complainant and it was signed by the advocate. The sanction under Section 197 of Cr.P.C. is 7 required and it is contended that the petitioner was on leave as on the date of alleged incident. Therefore, the learned SPP has contended that taking cognizance is not in accordance with law, therefore, supporting the case of the petitioner. In support of his arguments, the learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of D.Devaraja vs. Owais Sabeer Hussain reported in (2020) 7 SCC 695.
6. The learned counsel for respondent No.2 has seriously objected the petition and contended that the petitioner is Superintendent of Police who do not have any jurisdiction for receiving the complaint from Reeta as the alleged offence was committed by respondent No.2 which comes under the City jurisdiction which has to be enquired by the City police and it comes under the Mysore Commissionerate. Therefore, the petitioner summoning respondent No.2 to the S.P. office itself is illegal and he has manhandled respondent No.2. He has kicked him with shoes and immediately, the complainant went to the 8 hospital, obtained treatment on the same day. Subsequently, he lodged the complaint to the State Human Rights Commission and enquiry was conducted and there was statement recorded by the State Human Rights Commission, where it clearly reveals that as per the report of the IGP, the petitioner committed misconduct by taking the complainant to the S.P. office and assaulted. The log book of the car belongs to the petitioner clearly reveals that the vehicle was used while coming to his office and the petitioner was on leave. Enquiring the complainant and assaulting the complainant is not an official duty which was committed by discharging his official duty in order to obtain sanction under Section 197 of Cr.P.C. The police purposely filed 'B' final report without proper investigation in order to safeguard the petitioner who is S.P. Therefore, the protest petition was filed and the Magistrate has rightly took the cognizance and issued summons and there is no illegality in signing the protest petition by the advocate. Even the advocate can sign the protest petition, there is no legal infirmities. Therefore, quashing the proceedings does 9 not arise. The petitioner by using the influence has prepared the notice through DCIB, there is no mention of numbers and it was not served on the complainant. All these documents were manipulated at the instance of the petitioner. Even on 09.03.2015, the complainant was in the hospital, the petitioner by misusing the power has sent one PSI for compromise. An eye witness who is also an advocate by name Shivakumar was present. The complainant while explaining the incident, it was recorded in the mobile phone, therefore, it is contended that petitioner required to face the trial, hence, prayed for dismissing the petition.
7. The learned counsel for the petitioner in reply has stated that the MLC report clearly reveals, the respondent was already having bandage in his hand which shows, the said injury was not caused by the petitioner and the respondent No.2 involved in cheating the various people, and a case has been registered under the Karnataka Protection of Interest of Depositors Act (for 10 short 'KPID Act') and even the petitioner enquired the respondent that amounts to official duty, therefore, the sanction is necessary for proceeding against the petitioner. Hence, prayed for allowing the petition. In support of his arguments, he has relied upon various judgments of both Hon'ble Supreme Court as well as the High Court.
8. Having heard the arguments and on perusal of the records, which reveals, it is an admitted fact, the petitioner is the Superintendent of Police at Mysore District and respondent No.2 is said to be a Business man. At the request of the Police Inspector, the complainant was taken to the S.P. office and he was asked to appear at 5.00 p.m. on 08.03.2015. When he went to the office of S.P., a constable was present, a woman namely Reeta was also present, then the petitioner-S.P. came to the office and called inside the chamber and he is said to be manhandled him and also kicked him with his shoe. The complainant went to the hospital and got treatment, thereafter he tried to file the complaint to the police, but they have not 11 registered the same. Hence, he has approached Karnataka State Human Rights Commission and Karnataka State Human Rights Commission after making an enquiry, they found that the allegation is true and recommended for taking action against the petitioner by registering the case. Accordingly, the Nazrabad Police registered the FIR against the petitioner in Crime No.98/2015 for the offences punishable under Sections 323, 341, 355, 504 read with 34 of IPC. It is also an admitted fact, the Nazrabad police have investigated the matter and filed 'B' final report and after sending the report by the Karnataka State Human Rights Commission, the State Government also issued Show cause notice to the petitioner calling the explanation in respect of report and after submitting the explanation, the State Government dropped the initiation of Disciplinary Enquiry against the petitioner. It is also an admitted fact, the respondent No.2-complainant has filed protest petition against the 'B' final report and it was not signed by the complainant and it was signed only by the advocate for the complainant. The trial Court by rejecting the 'B' Final 12 report, took the cognizance against the petitioner, which is under challenge.
9. The learned counsel for the petitioner mainly challenged the proceedings on the ground that the petitioner was the public servant i.e., Superintendent of Police, Mysore at the time of alleged incident, therefore, the sanction under Section 197 of Cr.P.C. is must for taking cognizance. In support of the case, the learned SPP- I also argued that the sanction under Section 197 of Cr.P.C. is required for taking cognizance, therefore, the proceedings against the petitioner required to be quashed. In support of the argument, the learned SPP-I and learned counsel for the petitioner relied upon the latest judgment of the Hon'ble Supreme Court in the case of D.Devaraja stated supra and the Hon'ble Supreme Court has held at paragraph Nos.65, 66, 69, 71 and 72 which are as under:
"65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal 13 Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above.
66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government.
69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official 14 duty and/or act done under colour of or in excess of such duty or authority.
71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.
72. On the question of the stage at which the trial court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court."
10. The learned counsel for respondent No.2 has contended that the petitioner is Superintendent of Police of Mysore District and there is no complaint filed or registered against respondent No.2 within the jurisdiction of S.P. i.e., Mysore Rural District. Therefore, he has contended that the question of enquiring the complainant by the petitioner in S.P. office does not arise and further contended that respondent No.2 and one Reeta were having financial 15 dispute which comes under the limits of Mysore Police Commissionerate, but not under the Rural District. Both complainant and Reeta were residing in Mysore City and the dispute is also in Mysore city, but, there is no complaint filed against respondent No.2 in Mysore City. Even otherwise, if any complaint filed in Mysore City, the petitioner has no business to call the complainant to the S.P. office to enquire on behalf of the said Reeta. It is also contended that the petitioner has no business to man handle respondent No.2 in the S.P. office by kicking him by the leg with his shoes, assaulting him and causing injuries. Even otherwise, as per the story of the petitioner, he was on leave to the duty on 08.03.2015. Such being the case, it is contended that there is no discharge of official duty by the petitioner as either Investigating Officer in the complaint filed by Reeta or he is Official Superior to the Police Station comes under the Rural District. Admittedly, the petitioner not produced any document to show that the respondent No.2 has committed any offence and a case was registered against respondent No.2 in any of the 16 Police station within the limits of Mysore Rural District in order to take the jurisdiction by the petitioner for enquiry. Though the petitioner counsel relied upon a notice said to be issued by the DCIB on 15.02.2015, but, there is no reference number in the said notice and even otherwise, the S.P. has no authority to question the same. The learned counsel for the petitioner also produced a copy of the FIR registered against respondent No.2 on the complaint filed by Reeta before the Mysore South Police which was registered in Crime No.109/2015 on 09.03.2015. The said complaint filed by Reeta against respondent No.2 is only on 09.03.2015, the very next day of the alleged incident took place against the respondent No.2 on 08.03.2015. Even otherwise, a case is registered against respondent No.2 by the Mysore South Police Station in Crime No.109/2015. The petitioner who is S.P., Head of the Police unit in the District has no authority to summon respondent No.2 to his office that too when he was on leave. It appears the petitioner managed to register a case against respondent No.2 after the incident 17 occurred on 08.03.2015 at 5.00 p.m. and by sending the said Reeta to South Police station for registering the FIR against respondent No.2 stating that he has cheated Rs.10.00 lakhs and tried to assault her which was within the jurisdiction of Mysore District Police limit. It seems to be an after thought as a precautionary measure and counter blast, the petitioner managed to register the case against respondent No.2. Even otherwise, when the case was registered against respondent No.2 on 08.03.2015, the question of calling respondent No.2 to the S.P. office by this petitioner on 09.03.2015 when he was on leave does not arise and at that time, if he has assaulted respondent No.2, that cannot bring under the purview of discharging the public duty as a Police Officer and the S.P. cannot be an Investigating Officer when there is no case registered in the Police station comes under his limit. Therefore, in my considered opinion, it is a conspiracy between the said Reeta and the petitioner, the petitioner summoned the complainant to the S.P. office on 08.03.2015 and he has assaulted and kicked him. The 18 wound certificate of respondent No.2 of K.R. Hospital reveals that he sustained injuries due to assault. That apart, as per the enquiry report of the State Human Rights Commission, it was revealed, the petitioner involved in assaulting respondent No.2. Though the petitioner produced the log sheet of the car in order to show that he went to the hospital for treatment and thereafter, the car was sent back to the District Police Head Quarters, but it was brought to the notice of the Court that it was overwriting and correction in the log sheet where it was made as 08.03.2015 by over writing '8' and this log sheet appeared to be tampered at the instance of the petitioner. The wound certificate clearly reveals, the S.P. himself assaulted the injured-respondent No.2 with foot wear in S.P. chamber and after the enquiry, at the instance of the State Human Rights Commission, the Nazrabad Police registered FIR against the petitioner. Therefore, the contention of the petitioner cannot be acceptable that while discharging his official duty, the alleged offence was committed in order to obtain the sanction. In my 19 considered opinion, the offence committed by the petitioner do not fall under the official duty and the sanction is not required.
11. The Hon'ble Supreme Court in the case of Chandan Kumar Basu v. State of Bihar reported in (2014) 13 SCC 70 has held at paragraph No.9 of the judgment which is as under:
"9. Insofar as the first requirement is concerned, the position of officers belonging to the Indian Administrative Service serving on deputation in a cooperative society was decided in S.S. Dhanoa v. MCD [(1981) 3 SCC 431 : 1981 SCC (Cri) 733 :
1982 SCC (L&S) 6]. Dealing with clause 12 of Section 21 IPC, this Court had held that the word "corporation" appearing in clause 12(b) of Section 21 IPC meant corporations established by a statute and would have no application to a cooperative society. In the present case, the materials on record i.e. the incorporation of Bihar State Housing Cooperative Federation under the provisions of the Bihar Cooperative Societies Act, 1935 would seem to indicate that the said Cooperative Federation is a cooperative society. The above, however, is a prima facie view on the materials available on record at this stage. It has been argued on behalf 20 of the appellant that at the relevant point of time the Federation was under supersession and it was being exclusively controlled by the State. The above contention i.e. the extent of State control over the management of the Federation will be required to be established by means of relevant evidence before the legal effect thereof on the status of the appellant as a public servant can be decided. Possibly it is on account of the said fact that the High Court in the impugned order [Chandan Kumar Basu v. State of Bihar, Criminal Misc. No. 3187 of 2011, order dated 27-11-2012 (Pat)] had granted the liberty to the appellant to raise all other points as and when they arise and had also required the trial court to decide all such issues, including the requirement of sanction, in the light of such subsequent facts that may come on record."
12. The Hon'ble Supreme Court in another judgment in the case of Rajib Ranjan and others vs R. Vijay Kumar reported in (2015) 1 SCC 513 has held at paragraph Nos.15, 16 and 18 of the judgment which are as under:
"15. The sanction, however, is necessary if the offence alleged against the public servant is 21 committed by him "while acting or purporting to act in the discharge of his official duties". In order to find out as to whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, the following yardstick is provided by this Court in Budhikota Subbarao in the following words: (SCC p. 347, para 6) "6. ... If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."
16. This principle was explained in some more detail in Raghunath Anant Govilkar v. State of Maharashtra, which was decided by this Court on 8-2-2008 in SLP (Crl.) No. 5453 of 2007, in the following manner: (SCC pp. 298-99, para 11) "11. '7. ... "66. ... On the question of the applicability of Section 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli v. State of Bombay [AIR 1955 SC 287 : 1955 Cri LJ 857] and Amrik Singh v. State of Pepsu [AIR 1955 SC 309 : 1955 Cri LJ 865] was as follows: (Amrik 22 Singh case [AIR 1955 SC 309 : 1955 Cri LJ 865] , AIR p. 312, para 8) '8. ... It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary....' The real question therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B read with Section 409 of the Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no 23 bar." [Ed.: As observed in Harihar Prasad v. State of Bihar, (1972) 3 SCC 89, 115, para 66 : 1972 SCC (Cri) 409.] ' [Ed.: Quoted from State of Kerala v. V. Padmanabhan Nair, (1999) 5 SCC 690, 692, para 7 : 1999 SCC (Cri) 1031.] "
18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied."
13. In view of the above said two judgments delivered by the Hon'ble Supreme Court where it has categorically held, when the offence committed by the public servant, if it is not purported to act in discharging 24 his official duty, then the sanction under Section 197 of Cr.P.C. is not required.
14. Here in this case, the petitioner being Superintendent of Police of Mysore District has assaulted the complainant by calling him to his office and kicked him on 08.03.2015 and there is no case registered against respondent No.2 for summoning him to the S.P. office and he was not an Investigation Officer in any of the criminal case registered against respondent No.2. Therefore, the offence committed on respondent No.2 by the petitioner does not fall under the discharging of the official duty in order to say sanction is required under Section 197 of Cr.P.C. Therefore, the contention of the petitioner counsel and learned SPP-I cannot be acceptable.
15. The another contention of the petitioner counsel is that the police already investigated the matter and filed 'B' final report. But the complainant though filed protest petition through his advocate, but it was not signed by him. Therefore, the protest petition cannot be treated 25 as a complaint and therefore, taking cognizance on the protest petition without the signature of the complainant is not sustainable. It is also contended by the petitioner counsel that the complainant has not examined himself by way of sworn statement, but an affidavit was filed which is not permissible. But on perusal of the order of the Trial Court reveals that on the protest petition, the learned Magistrate examined the complainant on oath, therefore, the contention of the petitioner counsel that an affidavit filed in lieu of the sworn statement cannot be acceptable.
16. However, it is admitted fact that the protest petition was not signed by the complainant, but, it was signed by an advocate. In this regard, the learned counsel for the petitioner has relied upon the judgment of the Co- ordinate Bench of this Court in the case of Hanamant and Others vs. State of Karnataka by PSI Mudhol Police Station and Another reported in 2021 SCC OnLine Kar 12024 has held at paragraph Nos.5, 6 and 7 of the judgment as under:
26
"5. The learned counsel for the petitioners has placed reliance on an unreported decision of this court in Crl.P.101817/2014 and other connected matters disposed of on 20.04.2017. Para No. 17 of the said order is extracted hereunder:
"Looking to the contents of this protest application, it shows that it is not by the
complainant himself but by his Advocate, same is not in accordance with law. When that is so the question is whether this protest memo is in the form of the complaint and whether it is complaint as defined under Section 2(d) of the Cr.P.C. Looking to the materials and the contents of the protest petition it is not in the form of complaint, when that is so, the question of learned Magistrate looking into the protest application and holding that there is sufficient material and taking cognizance is patently illegal and against provisions of law. Apart from that as I have observed with regard to the 'B' summary report is concerned, the learned Magistrate is supposed to pass some order whether he is going to accept it or reject the summary report. Looking to the order passed by the learned Magistrate, which is challenged in this case, absolutely there is no reasons and there is no acceptance or rejection of the 'B' summary report."27
6. Perusal of the protest petition dated 14.07.2017 shows that it is not by the complainant but, filed by the learned counsel and therefore, it is not in accordance with law.
7. In view of the foregoing reasons, the petition deserves to be allowed, accordingly, petition is allowed. Order dated 04.12.2018 passed in C.C. No. 1512/2018 is hereby quashed."
17. The Co-ordinate Bench of this Court has relied upon the previous order of the another Co-ordinate Bench in Crl.P.101817/2014 and connected matter dated 20.04.2017, where the Co-ordinate Bench has categorically held when the protest petition was not signed by the complainant which cannot be entertained and protest petition must be in the form of the complaint. In view of the judgment passed by the Co-ordinate Bench of this Court, the protest petition filed by the advocate for the complainant cannot be acceptable as a complaint and the Magistrate cannot rely upon the protest petition for the purpose of taking cognizance and it cannot be treated as a complaint under Section 2(d) read with Section 200 of 28 Cr.P.C. Therefore, on this ground, the cognizance taken by the learned Magistrate against the petitioner is liable to be set aside.
18. In view of my findings above, this Court need not go into the other aspects on merits and the Co- ordinate Bench of this Court in the case of Hanamant stated supra has remanded the matter back for fresh consideration. Therefore, I am of the view, the matter requires for remanding back to the Magistrate enabling the complainant to file protest petition signed by him and also he shall be examined on oath, thereafter, the Magistrate shall proceed in accordance with law.
19. Accordingly, the petition is allowed in part. The order of taking cognizance and issuing process by the JMFC-III Court, Mysuru dated 05.04.2022 is hereby set aside.
The matter is remitted back to the Magistrate with a liberty to respondent No.2 to file proper protest petition 29 signed by the respondent No.2 and the learned Magistrate is at liberty to proceed in accordance with law.
Sd/-
JUDGE GBB