Karnataka High Court
Luqman Ahmed And Ors vs The State Of Karnataka And Anr on 13 August, 2024
Author: K Natarajan
Bench: K Natarajan
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CRL.P No. 201842 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO.201842 OF 2023 (482)
BETWEEN:
1. LUQMAN AHMED S/O BANDELISAB INAMDAR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O HORAPET ONI, HORTI,
TQ. INDI,
DIST. VIJAYAPURA-586101.
2. ZAMEER A S/O AMEERHAMZA USTAD,
AGE: 43 YEARS, OCC: BUSINESS,
R/O WARD NO.35,
TAKKE ROAD,
ITAGI GARDEN,
TQ. AND DIST. VIJAYAPURA-586101.
Digitally signed by 3. SHANOOR ALI S/O AMEERHAMZA USTAD,
SHIVALEELA AGE: 42 YEARS, OCC: BUSINESS,
DATTATRAYA
UDAGI R/O ITAGI GARDEN,
Location: High KALIDAS CROSS,
Court Of TQ. AND DIST. VIJAYAPURA-586101.
Karnataka
4. TOUFIQ S/O AMEERHAMZA USTAD,
AGE: 36 YEARS, OCC: BUSINESS,
R/O ITAGI GARDEN,
TQ. AND DIST. VIJAYAPURA-586101.
...PETITIONERS
(BY SRI. S. S. MAMADAPUR, ADVOCATE)
AND:
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CRL.P No. 201842 of 2023
1. THE STATE OF KARNATAKA
PSI, GANDHI CHOWK POLICE STATION, VIJAYAPURA,
REP. BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107.
2. RAFEEQ AHMED S/O DEENBADSHAH INAMDAR,
AGE: 70 YEARS, OCC: BUSINESS,
R/O AFZALPUR TAKKE,
TQ. AND DIST. VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1;
SRI. M. J. INAMDAR, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO ALLOW AND CHARGE SHEET FILED
AGAINST THE PETITIONERS AND ALL FURTHER PROCEEDINGS
IN C.C.NO.6441/2016 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 448, 323, 324, 504 AND 506 READ
WITH SECTION 149 OF IPC PENDING ON THE FILE OF HON'BLE
I ADDITIONAL JMFC COURT, IN CRIME NO.34/2013, GANDHI
CHOWK P.S. VIJAYAPUR, AT VIJAYAPUR MAY KINDLY BE
QUASHED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.P No. 201842 of 2023
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN) This petition is filed under Section 482 of Cr.P.C. praying to quash the charge-sheet filed against the petitioners and all further proceedings in C.C.No.6441/2016 (in Crime No.34/2013 registered by the Gandhi Chowk Police Station, Vijayapura), for the offences punishable under Sections 143, 147, 148, 448, 323, 324, 504 and 506 read with Section 149 of IPC, pending on the file of I Additional JMFC Court at Vijayapura.
02. Heard the learned counsel for the petitioners and the learned counsel for the respondent No.1 - State and the learned counsel for the respondent No.2 - complainant.
03. The case of the prosecution is that the respondent No.2 has initially filed the FIR to the Gandhi Chowk police station, Vijayapura, alleging that the accused persons said to be trespassed into their land and said to be assaulted and abused them in filthy language in criminal intimidation. The police have registered the FIR in Crime No.34/2013 and took -4- NC: 2024:KHC-K:5943 CRL.P No. 201842 of 2023 up the investigation and the police after the investigation have filed the 'B' final report on 11.06.2013. Hence, the Trial Court had issued the notice to the de-facto-complainant. Accordingly, the defacto-complainant appeared before the Trial Court. The case was posted for the sworn statement and 03 witnesses have been examined. Then by impugned order dated 28.11.2016, the Trial Court has issued the process by registering the case for the offences punishable under Sections 324, 504 and 506 read with Section 34 of IPC, which is under challenged.
04. The learned counsel for the petitioner has strenuously contended that the Trial Court neither accepted the 'B' final report nor rejected the 'B' final report and even without taking cognizance, recorded the statement and issued the process, which is violation of the procedure of Cr.P.C. and the guidelines issued by the Coordinate Bench of this Court in the case of Dr. RaviKumar vs. Mrs. K. M. C. Vasantha and another, in Crl.P.No.536/2017 dated 27.11.2017. Hence, prayed for quashing the proceedings.
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05. Per contra, the learned counsel for the respondent No.2 counsel submits that there is rivalry between two groups and the civil cases are pending against the petitioners and from the year 2007 the matters are litigating between both the parties. On this background, the accused persons are assaulted the complainant and caused the injuries. There are documents to show for having committed the offences. Therefore, after recording the sworn statement, the Trial Court has issued the process. It is further submitted that the petitioner has also filed the complaint against the respondent No.2 which is pending before the Trial Court. Therefore, there is no need interference by this Court. Hence, prayed to dismiss the petition.
06. The learned High Court Government Pleader for the respondent No.1 - State submits that the police have already investigated the matter and filed 'B' final report. Therefore, prayed for passing of appropriate order.
07. Having heard arguments and on perusal of the records, it reveals that admittedly, the police have filed 'B' final report on 11.06.2013. On perusal of the order sheet, the Trial Court has not passed any order for having rejected the 'B' final -6- NC: 2024:KHC-K:5943 CRL.P No. 201842 of 2023 report and posted the matter for recording the sworn statement of the complainant by taking cognizance. The Coordinate Bench of this Court in Dr. RaviKumar's case supra, has issued the guidelines how to deal with the matter in 'B' summary report filed by the police and the complaint.
08. The judgment of the Coordinate Bench of this Court at Para No.5 and sub Para Nos.1 to 7 held as under:-
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 Report makesout a cognizable case against the accused and the same is sufficient to take -7- NC: 2024:KHC-K:5943 CRL.P No. 201842 of 2023 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' Summary7 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.
IV. After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C.
V. If the court is of the opinion that the materials collected by the police in the report submitted not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under section 190 read with 200 Cr.p.c. on the -8- NC: 2024:KHC-K:5943 CRL.P No. 201842 of 2023 basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complainant/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct the investigation under section 202 of Cr.p.c., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3) of Cr.p.c, once the magistrate takes cognizance and starts inquiring into the matter himself.
VI. After taking such report under section 202 of Cr.P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s.203 of Cr.P.C. as the case may be.
VII. If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the -9- NC: 2024:KHC-K:5943 CRL.P No. 201842 of 2023 complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s.204 of Cr.P.C..,
09. In this case, the learned Trial Court ought to have passed any order on the 'B' final report filed by the police.
10. The guidelines 3 of Para No.5 and after rejection of the 'B' summary report, the learned Magistrate could have ascertain the allegations made in the complaint or in the protest petition, if the cognizance offence is made out, then he should have take the cognizance, thereafter, record the sworn statement, later he has power to dismiss the complaint or issue the process under Section 204 of Cr.P.C. But in this case, none of the procedure has been followed by the Trial Court, except issuing the process, it has not stated that whether 'B' final report has rejected or accepted. Though, it is deemed to be rejected, but there is no application of mind for rejecting the 'B' final report, thereafter he should proceed for taking cognizance and sworn statement should be recorded. Therefore, there is error in procedure followed by the Trial Court. Therefore, criminal proceedings cannot be sustainable under the law.
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11. Though, the learned counsel for the respondent No.2, the petitioner has filed a complaint against the respondent No.2 which is pending before the Trial Court and there are civil cases between the parties, if there is merits in the case, should be looked into by the Trial Court, by recording the sworn statement on issuing the process. But the very recording the statement without taking cognizance and without rejecting the 'B' final report itself is not sustainable under law and an error committed by the Trial Court in the procedural aspect. The proceedings against the petitioners deserved to be quashed. Accordingly, I proceed to pass the following;
ORDER I. The petition is allowed.
II. The criminal proceedings in C.C.No.6441/2016 (in Crime No.34/2013 registered by the Gandhi Chowk Police Station, Vijayapura), for the offences punishable under Sections 143, 147, 148, 448, 323, 324, 504 and 506 read with Section 149 of IPC, pending on the file of I Additional JMFC Court at Vijayapura, is hereby quashed.
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NC: 2024:KHC-K:5943 CRL.P No. 201842 of 2023 III. The respondent No.2 is at liberty to approach this Court and the Trial Court, if the Trial Court take the cognizance in accordance with law, by following the procedure stated in the Dr. Ravikumar's case and proceed in accordance with law.
Sd/-
(K NATARAJAN) JUDGE KJJ List No.: 1 Sl No.: 32 CT:SI