Karnataka High Court
Nabaghana Pany S/O. Late Indramani Pany vs The State Of Karnataka on 15 September, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 15 T H DAY OF SEPTEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE S HIVASHANKAR AMARANNAVAR
CRL.P.NO.101124/ 2018
BETWEEN:
NABAGHANA PANY
S/O. LATE INDRAMANI PANY
AGED ABOUT 57 YEARS,
OCC:VICE PRESIDENT-GROUP HR,
M/S. MSPL LIMITED,
BALDOTA ENCLAVE,
ABHAYARAJ BALDOTA ROAD,
HOSAPET-583203,
BALLARI DISTRICT.
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANGOUDAR AND
Sri. J.A. PATTAR, ADVS.)
AND:
1. THE STATE OF KARNATAKA
RURAL POLICE STATION, HOSPET,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
AT DHARWAD.
2. DEVIKA MALINI W/O. SHIVARAJ
OCC: SRIKARI SHAMSTA OWNER
AGED ABOUT 49 YEARS,
5TH WARD, RANIPETE,
HOSPET-583201,
BALLARI DISTRICT.
...RESPONDENTS
(BY SRI.PRAVEEN K. UPPAR, HCGP FOR R1, R2- SERVED)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO CALL FOR RECORDS AND TO QUASH THE
ORDERS PASSED BY THE III ADDL. DISTRICT & SESSIONS JUDGE,
BELLARY IN CRL.RP.NO. 5154/2016 DATED 30.05.2018 AT
ANNEXURE 'D' IN CONFIRMING THE ORDER PASSED BY THE PRL.
CIVIL JUDGE & JMFC, HOSAPETE, OFFENCES U/SEC.343 R/W 149
OF IPC DATED 03.11.2016 IN C.C.NO.1433/2016 (CRIME
NO.22/2011) AT ANNEXURE-'A'.
THIS CRIMINAL PETITION IS COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/accused No.3 invoked jurisdiction of the court under Section 482 of Cr.P.C. and sought quashing of (1) order dated 30.05.2018 passed by III Additional District and Sessions Judge, Bellary in Crl.R.P.No.5154/2016 and (2) order dated 03.11.2016 passed by the Principal Civil Judge and JMFC, Hosapete in C.C. No.1433/2016.
2. Heard the learned counsel for the petitioner and learned HCGP for respondent No.1. Respondent 3 No.2 in spite of service of notice remained absent and unrepresented.
3. The brief facts of the case are that the husband of complainant was working as the Assistant General Manager in MSPL Limited, a company registered under the Companies Act, 1956 and was in charge of the operations of the Goa and Chennai and he was looking after the purchase and sales of Iron ore meant for the purpose of export. During the course of this employment, it came to the knowledge of the company that the complainant's husband has misappropriated huge funds of the company and thus had caused huge losses in terms of several crores of rupees. The company was constrained to hold a domestic enquiry into these illegal acts. While enquiry was going on and even before the management took any action, the complainant, the wife of Mr. Shivaraj has filed a complaint before the rural police station, Hosapete for the offence under 4 Sections 342, 343, 347, 348, 506 r/w 34 of IPC against the present petitioner and six others and the same was registered in Crime No.22/2011.
4. The Investigating Officer conducted a detailed investigation and filed B report on 26.09.2011 before the Principal Civil Judge and JMFC, Hosapete as there is no evidence to prove the allegation as per the complaint of respondent No.2 against the accused persons. Respondent No.2/complainant on notice, who appeared on notice filed protest memo after two years i.e., on 23.11.2013 and her sworn statement was recorded on 30.08.2016 i.e., nearly more than 2½ years. After recording the sworn statement of respondent No.2 and her husband, the learned Magistrate took cognizance for offence under Sections 343 r/w 149 of IPC by order dated 03.11.2016 and issued process to the petitioner and other accused. Being aggrieved by the order dated 03.11.2016, the petitioner and other accused filed 5 Criminal Revision Petition Nos.5154/2016 and 5003/2017 before III Additional District and Sessions Judge, Ballari sitting at Hosapete. The said two revision petitions came to be rejected by order dated 30.05.2018. The petitioner herein who is accused No.3 has sought quashing of the said order dated 30.05.2018 passed in Crl.Rev.Pet.No.5154/2016 and order dated 03.11.2016 passed in C.C.No.1433/2016.
5. Learned counsel for the petitioner has contended that the learned Magistrate has not considered the B report while passing the impugned order dated 03.11.2016. Even the learned Sessions Judge while passing the order dated 30.05.2018 has also not considered the B report. On that point he placed reliance on the following decisions of this court ;
1) Crl.P.No.8922/2017, decided on 17.08.2021
2) Crl.P.No.201225/2015, decided on 22.04.2016.
6
6. Learned HCGP would contend that the learned Magistrate has applied his mind and based on the material on record has rightly passed the impugned order.
7. Learned Magistrate has to consider B report, protest petition and the evidence on record and record his finding as to why he rejected B report and accepts the protest petition. On that point reliance is placed on the decision of this court in the case of Sri. Nagaraj Rao C.H. V/s. State by its S.P.P. Bangalore in Crl.P.No.8922/2017, decided on 17.08.2021, wherein it is observed thus:
"16. Not for nothing an investigation is ordered and the Police would conduct investigation and file a 'B' report. There may be cases where a 'B' report would be filed without proper investigation, which would require trial on a protest petition being filed by the complainant or there may be cases 7 where the complainant would be disgruntled and file a protest petition. Therefore, merely because a complainant files a protest petition and gives a statement with regard to his protest petition, the learned Magistrate ought not be swayed away by such protest petition. It is incumbent upon the learned Magistrate to consider 'B' report, protest petition and the evidence on record and record his finding as to why he rejects the 'B' report and accepts the protest petition."
8. 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 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. The same are enumerated by this court in the case of Dr.Ravikumar V/s. 8 Mrs.K.M.C.Vasantha and another, reported in ILR 2018 KAR 1725.
"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 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 9 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 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 10 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 11 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 under section 173 of Cr.P.C. are 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 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 12 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.13
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 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. But, none of these procedures have been followed by the learned Magistrate. On the other hand, as could be seen from the records, the learned Magistrate even without rejecting the 'B' Summary report and without taking cognizance of the offences, but after going through the contents of the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. On the basis of the contents of the Protest Petition, and after relying upon the contents of the 14 Protest Petition and the sworn statement, the learned Magistrate has rejected the 'B' Summary Report which virtually amounts to putting the horse behind the Cart."
9. On perusal of the impugned order there is no reference to the B summary report, whether it is accepted or rejected, if rejected on what ground it is rejected. The learned Magistrate has not applied his mind to the contents of B report. The same is also not been considered by the Sessions Judge in the revision filed by the petitioner and others. Therefore, under the circumstances, the impugned order passed by the learned Magistrate, confirmed by the Sessions Judge in the revision are not sustainable and requires to be quashed and matter requires to be remitted back for following the options enumerated in para No.5 of Dr.Ravikumar (supra). In the result, the following : 15
ORDER Petition is allowed.
The order dated 03.11.2016 passed by the learned Principal Civil Judge and JMFC, Hosapete in C.C. No.1433/2016 (Crime No.22/2011) and order dated 30.05.2018 passed by the III Additional District and Sessions Judge in Crl.R.P.No.5154/2016 are quashed.
The matter stands remitted to the court of Principal Civil Judge and JMFC, Hosapete with a direction to follow the options laid down in para No.5 of Dr. Ravikumar's case (supra) and then pass the order in accordance with law.
SD/-
JUDGE MNS/