Karnataka High Court
Praveen Kumar I M vs State Of Karnataka on 7 September, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION No.8076 OF 2017
C/W
CRIMINAL REVISION PETITION No.1306 OF 2017
In Crl.P.No.8076/2017
BETWEEN
1. Praveen Kumar I.M.,
S/o. Sri. I.M.Shankaraiah,
Aged about 49 years,
Occupation: Private Service,
Residing at No.C-203,
Mantri Greens No.1,
Sampige Road, Malleswaram,
Bengaluru-560003.
2. Mrs. Gayathri Praveen I.M.,
W/o. Praveen Kumar I.M.,
Aged about 46 years,
Residing at No.C-203,
Mantri Greens No.1,
Sampige Road, Malleswaram,
Bengaluru-560003.
3. Channabasappa,
S/o. Late H.M.Pampathiaiah,
Aged about 38 years,
Occupation: Private Service,
Residing at Huvinahadagalli,
Bellary District-583219.
...Petitioners
2
(By Sri. P.Prasanna Kumar, Advocate)
AND
1. State of Karnataka
By Bharathinagar Police Station,
Pulakeshinagar Sub-Division,
Represented by its
State Public Prosecutor,
High Court Building,
Bengaluru-560001.
2. C.S.Keshavelu,
S/o. Sri. C.Shanmugham,
Aged about 65 years,
Residing at No.86,
Shanmugham Nilayam,
Bradsaw Street, Nehru Puram,
Bengaluru-560001.
...Respondents
(By Sri.Nasrulla Khan, HCGP for R1;
Sri. Rodda Veershetty, Advocate, for R2)
This Criminal Petition is filed under Section 482 of
Criminal Procedure Code praying to quash the order dated
04.09.2017 passed by the learned LXX Additional City Civil
and Sessions Judge and Special Judge at Bengaluru in
Special C.C.NO.468/2017 (Crime No.96/2016) there by
taking cognizance against the petitioners here in for the
alleged offence punishable under Sections 323, 341 and
506 read with section 34 of IPC and section 3(1)(x) and
3(1)(v) of the Schedule Caste and Schedule Tribes
(Prevention of Atrocities) Act, 1989 and ordering to
register case and issue summons and consequently quash
the entire proceedings.
3
In Crl.RP.No.1306/2017
BETWEEN
1. Praveen Kumar I.M.,
S/o. Sri. I.M.Shankaraiah,
Aged about 49 years,
Occupation: Private Service,
Residing at No.C-203,
Mantri Greens No.1,
Sampige Road, Malleswaram,
Bengaluru-560003.
2. Mrs. Gayathri Praveen I.M.,
W/o. Praveen Kumar I.M.,
Aged about 46 years,
Residing at No.C-203,
Mantri Greens No.1,
Sampige Road, Malleswaram,
Bengaluru-560003.
3. Chanabasappa,
S/o. Late H.M.Pampathiaiah,
Aged about 38 years,
Occupation: Private Service,
Residing at Huvinahadagalli,
Bellary District-583219.
...Petitioners
(By Sri. P.Prasanna Kumar, Advocate)
AND
1. State of Karnataka
By Bharathinagar Police Station,
Pulakeshinagar Sub-Division,
Represented by its
State Public Prosecutor,
High Court Building,
Bengaluru-560001.
4
2. C.S.Keshavelu,
S/o. Sri. C.Shanumugham,
Aged about 65 years,
Residing at No.86,
Shanmugham Nilayam,
Bradsaw Street, Nehru Puram,
Bengaluru-560001.
...Respondents
(By Sri.Nasrulla Khan, HCGP for R1;
Sri. Rodda Veershetty, Advocate for R2)
This Criminal Revision Petition is filed under Section
397 read with 401 of Criminal Procedure Code praying to
set aside the order dated 31.10.2017 passed by the
Special Judge and II Additional City Civil and Sessions
Judge at Bengaluru in Spl.C.C.No.468/2017 (Crime
No.96/2016) thereby ordering to frame charge under
Section 3(1)(v) of Schedule Caste and Schedule Tribe
(Prevention of Atrocities) Act and Sections 323, 341, 506,
read with 34 of IPC and consequently allow the Revision
Petition.
These Petitions coming on for admission this day, the
court made the following:
ORDER
Crl.P. No.8076/2017 is filed under Section 482 of Cr.P.C. for quashing the order dated 04.09.2017 passed by Additional City Civil Judge and Sessions Judge in Spl.C.C.468/2017 in connection with taking cognizance for the offences under Sections 323, 341 & 506 of IPC and Sections 3 (1)(x) and 3 (1)(v) of Scheduled Caste and 5 Scheduled Tribe (Prevention of Atrocities) Act read with Section 34 of IPC.
2. Crl.RP.No.1306/2017 is filed under Section 397 Cr.P.C. questioning the legality and correctness of the order dated 31.10.2017 passed by the same Court in the said proceeding for deciding to frame charges against the petitioners for aforementioned offences.
3. The background of the events that led to petitioners being prosecuted are as follows:-
The petitioners are the joint owners of a residential premises bearing Nos.160 and 161 situated at Ravi Kirloskar Layout, Chikkabidarakallu Village, Dasanapura, Bengaluru. They leased the said premises to Sri. S.K.Kumaravelu, son of second respondent in the month of February 2009 on a monthly rent of Rs.8000/-. The second respondent and his wife also came to reside with their son in the said house. Since the son suffered loss in his business, he left that house; however second respondent continued to stay there. His son owed rentals 6 to petitioners 1 & 2, the second respondent continued to reside there without paying rents. The petitioners 1 and 2 instituted a suit for evicting their tenant i.e., the son of second respondent. In the said suit, the second respondent's son filed written statement stating that he had vacated the house on 05.06.2016 itself. Therefore the learned judge, before whom suit was pending, orally directed the son to handover the keys of the house to the petitioners 1 and 2. Thereafter, the second respondent, as it is stated, solely with the intention of harassing and humiliating the petitioners, lodged report with police making allegation that the petitioners 1 & 2 insulted him taking the name of his caste, assaulted and threatened him. On the basis of this report, the police registered an FIR in Crime No.96/2016 for the offences punishable under Sections 323, 341 and 506 of IPC and Section 3(1)(r) and 3(1)(s) of SC/ST (POA) Act. The police held investigation and filed 'B' report.7
4. The second respondent claims to have filed protest petition to 'B' report. The learned judge of the Special Court, decided to take cognizance after recording sworn statement of second respondent as according to him prima-facie case existed, and he ordered to issue summons to all the accused. At a later date, the learned judge held that materials to frame charge also existed.
5. The learned counsel for the petitioners argues that once the police file 'B' report, the Court cannot take cognizance merely on the basis of protest petition without assigning reasons for discarding 'B' report. The learned trial Court judge has not applied his mind at all. No reasons are given for rejecting 'B' report in which the police have clearly stated that no incident as alleged by the second respondent had taken place. The petitioners did not know the caste of second respondent. What is stated by the second respondent is that the petitioners might have come to know about his caste from somebody. This is a vague allegation. No offence under the provisions 8 of SC/ST (POA) Act is constituted if the accused does not know the caste of the complainant. In these circumstances, the entire proceeding in Spl.C.C.468/17 should be quashed. In support of his argument he has placed reliance on two judgments of this Court in Crl.P.No.536/2017 (Dr. Ravi Kumar Vs. K.M.C. Vasantha & Another ) and Crl.P.No.2238/2013 (M.Chandrashekar Vs. The Sub Inspector of Police and Another).
6. The learned counsel for second respondent argued that the Special Court has committed no error in taking cognizance and deciding to frame charges. The petitioner did insult respondent coming to know his caste and assaulted him. The police filed 'B' report yielding to the influence of the petitioners. The contents of 'B' report are false. Therefore he argued for dismissing both the petitions.
7. In the light of the points urged by the learned counsel, the question to be answered is whether taking 9 cognizance of the offences against the petitioners is justifiable?
8. Through there is some discrepancy in the entries made in the order sheet of the Special Court with regard to filing of protest petition by the second respondent, the case can be examined that protest petition had in fact been filed, as according to the court below protest petition was available in the records. Propriety of rejecting 'B' report is the actual issue. On this aspect, this court, in the case of Dr.Ravikumar (supra) has held as below:-
"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 investigation in a proper manner or not and if the court is of the opinion that the 10 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 investigating 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 AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para
15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal (second head note.)
ii) If the court is of the opinion that the material available in the 'B' Summary 11 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 cognizance 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' report, the court has to reject the 'B' Summary Report.
9. Same is the view expressed in another judgment in the case of Chandrashekhar (supra). The order impugned shows no application of mind on 'B' report. Mere recording of sworn statement without assigning reasons for discarding 'B' report is not justifiable, and even it does not stand to reason. Once investigation agency makes a report no incident as alleged had taken place, the 12 Court has to examine the correctness of the same if the Court is of the opinion that process has to be issued after taking cognizance based on protest petition. Thus looked, the order sustained cannot be allowed to stand.
10. The petitioners have just sought quashing of the order taking cognizance. If the entire materials placed before the Court are perused, what is found is that report made to police by the second respondent appears to be on his assumption that some body might have informed the petitioners that he belongs to schedule caste. This does not suffice the requirement to register FIR under the provisions of SC/ST (POA) Act. Therefore other allegations with regard to offences alleged under the provisions of Indian Penal Code must be looked with askance.
11. Here is a case where the second respondent might have resorted to filing false report to police in the background of suit for eviction instituted by the petitioners. Taken on face value, no incident appears to have taken place. The entire trial appears to be futile 13 exercise. A clear instance of abuse of process of Court is apparent. Therefore, I am of the opinion that entire proceeding before the Special Court can be quashed exercising power under Section 482 of Cr.P.C., in order to meet the ends of justice.
12. In view of above discussion, the revision petition under Section 397 Cr.P.C. does not survive. Hence the following order:-
(i) Crl.P.No.8076/2017 filed under Section 482 Cr.P.C., is allowed. Proceedings in Spl.C.C.No.468/2017 on the file of II Additional City Civil and Sessions Judge and Special Judge, Bengaluru are quashed.
(ii) Crl.RP.No.1306/2017 is dismissed.
Sd/-
JUDGE ckl