Karnataka High Court
Sri. S A Ramdas vs State Of Karnataka on 15 October, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.7982 OF 2019
BETWEEN:
Sri. S.A. Ramdas,
S/o. late Ashwathnarayan Rao,
Aged about 56 years,
Presently residing at:
1063/77A, 1st Main Road,
6th Cross, Vidyaranyapuram,
Mysuru - 570 008.
And Also at:
No.434, Contour Road,
Gokulam 3rd Stage,
Mysuru - 2. ...Petitioner
(By Sri. C.H. Hanumantharaya, Senior Advocate)
AND:
1. State of Karnataka,
By Saraswathipuram Police,
Mysuru.
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru - 560 001.
2
2. Smt. Prema Kumari,
Aged about 39 years,
D/o. Mallappa S. Jadeja,
R/at No.741, 3rd Cross,
Manujapatha Road,
Kuvempunagar,
Mysuru - 570 023. ...Respondents
(By Sri. V.M. Sheelvant, SPP-I a/w
Smt. K.P. Yashodha, HCGP for R1;
Sri. V. Lakshmikanth Rao, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to set aside the order passed by the Court
of LXXXI Additional City Civil and Sessions Judge, Bengaluru
(CCH-82) dated 21.10.2019 in Crime No.21/2014 (CIS
512/2019) now renumbered as Spl.C.C.No.1158/2019
Annexure - A and etc.,
This Criminal Petition coming on for Admission, this
day, the Court through video conference made the
following:
ORDER
Heard Sri. Hanumantharaya C.H., learned Senior counsel for petitioner and Sri. V.M. Sheelvant, learned SPP-I for respondent No.1 and Sri. V. Lakshmikanth Rao, learned counsel for respondent No.2.
2. Grievance raised by the petitioner relates to the order passed by the learned Magistrate rejecting 'B' 3 Summary report filed by the Investigating Officer and taking cognizance of the offences punishable under Sections 417 and 506 of IPC against the petitioner (accused No.1) and issuing process to the petitioner.
3. Submission of the learned senior counsel for petitioner is that the procedure followed by the learned Magistrate is contrary to the mandate contained in Section 200 of Cr.P.C. and the principles of law laid down by the Hon'ble Supreme Court in the constitution bench decision in 'Kamalapati Trivedi v. State of West Bengal', (1980) SCC (2) 91, followed by this Court in 'Dr. Ravi Kumar v. Mrs.K.M.C. Vasantha and Another', ILR 2018 KAR 1725, wherein it has enumerated the guidelines to be followed by the courts and the Magistrate dealing with the 'B' summary report submitted by the investigating agency as under:-
"5. xxxxxxxxxxxxxxxx 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 4 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 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.
ii) If the court is of the opinion that the material available in the 'B' Summary 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.5
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."
4. Identical submissions have been considered by me in a recent decision in Crl.P.No.6794/2019 dated 09.10.2020, wherein following the recent decision of the Hon'ble Supreme Court in Vishnu Kumar Tiwari v. State of Uttar Pradesh through Secretary, Home Civil Secretariat, Lucknow and Another, (2019) 8 SCC 27, legal position is reiterated that mere fact that the magistrate had earlier 6 ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. It is held in this decision that:
1) a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things:
(a) he may decide that there is no sufficient ground for proceeding further and drop action;
(b) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
(c) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200.7
If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."
In the light of the above principle, in my view, the trial judge has not committed any error in issuance of process to the petitioner. The records indicate that respondent No.2 lodged a complaint before the respondent No.1-police, which was registered in Crime No.21/2014. After investigation, 'B' summary report was submitted on 12.11.2014. Though there is an inordinate delay in filing the protest petition by respondent No.2 which was filed only on 22.04.2019, the learned Magistrate considered the 'B' Summary Report and having arrived at a decision that the said 'B' Summary report is liable to be rejected, by order dated 01.06.2019 rejected the 'B' Summary report.
Thereafter, the learned Magistrate has proceeded to take cognizance based on the protest petition submitted by 8 respondent No.2. The protest petition discloses ingredients of the criminal offences under Sections 417 and 506 of IPC. Sworn statement of the complainant has been recorded. The said procedure is in conformity with the procedural requirements of Sections 190 and 200 Cr.P.C. as well as the law laid down in the above said decisions. As such, I do not find any justifiable ground to interfere in the impugned order.
Consequently, petition being devoid of merit is liable to be dismissed.
Accordingly, petition is dismissed.
Sd/-
JUDGE SV