Karnataka High Court
Sri B A Krishna vs Masti Police Station Malur on 4 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 2652 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2652 OF 2022
BETWEEN:
1. SRI B A KRISHNA
S/O ANANDA RAO
AGED ABOUT 35 YEARS
R/AT NO.2984/08
1ST A MAIN ROAD C BLOCK
BAYATHRINAGARA
BANGALORE 560 021
2. SRI MOHAN RAO D
S/O LATE V A DEVENDRA RAO
AGED ABOUT 35 YEARS
R/AT 211, DWARAKA 45TH CROSS
JAYANAGAR 8TH BLOCK
VTC BANGALORE SOUTH
BANGALORE 560 041
3. SRI ANAND RAO
S/O LATE V A DEVENDRA RAO
AGED ABOUT 59 YEARS
Digitally signed by R/AT NO.3569/A, 1ST MAIN ROAD
PADMAVATHI B K
Location: HIGH
7TH CROSS
COURT OF
KARNATAKA
GAYATHRINAGARA
BANGALORE
...PETITIONERS
(BY SRI. VINAY SWAMY C., ADVOCATE)
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CRL.P No. 2652 of 2022
AND:
1. MASTI POLICE STATION
MALUR
REPRESENTED BY
PUBLIC PROSECUTOR
STATE OF KARNATAKA
BENGALURU
2. SRI NANDARAO
S/O LATE VENKATA RAO
AGED ABOUT 42 YEARS
RESIDING AT
VENKATAPURA VILLAGE
TEKAL HOBLI
MALUR TALUK
...RESPONDENTS
(BY SRI. K.S. ABHIJITH, HCGP FOR R1;
R2 - SERVED, UNREPRESENTED)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
FIR DATED 13.10.2017 REGISTERED AS CR.NO.112/2017 BY THE
I ADDL. CIVIL JUDGE AND JMFC, MALUR AS PER ANNEXURE-A AND
ALL PROCEEDINGS IN C.C.NO.856/2019.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question registration of crime in Crime No.112/2017 and all the further proceedings in C.C.No.856/2019, pending on the file of the I Additional Civil Judge and J.M.F.C., Malur.
-3- CRL.P No. 2652 of 20222. Heard Sri. Vinay Swamy C., learned counsel appearing for the petitioners and Sri. K.S. Abhijith, learned HCGP for respondent No.1.
3. Brief facts that leads the petitioners to this Court in the subject petition are as follows:
The first petitioner and the complainant - respondent No.2 are cousin brothers. On the ground that the second respondent was squatting in the property that belonged to petitioner No.3, institutes a suit for ejectment in O.S.No.432/2012 before the concerned Court. The suit is decreed on 03.09.2016 and the petitioner was declared to be entitled to recover a vacant possession of the scheduled property along with damages.
4. The second respondent preferred an appeal before the First Appellate Court in R.A.No.86/2016, which came to be dismissed after which the third petitioner herein files an execution petition to execute the order passed in O.S.No.432/2012. A possession warrant was issued in the said execution case on 16.09.2017. Immediately, thereafter a -4- CRL.P No. 2652 of 2022 compliant is registered by the second respondent on the petitioners herein alleging the offences punishable under Sections 506, 504, 143, 147, 148, 149, 323, 324 and 354 of IPC.
5. The Police after investigation filed a 'B' report. The second respondent files a protest petition and the 'B' report is rejected, cognizance is taken and process is issued against the petitioners. It is the order taking cognizance and issuing summons against the petitioners that drives the petitioner to this Court in the subject petition.
6. The learned counsel appearing for the petitioners submits that the issue is purely civil in nature, as the petitioners are armed with the order passed by the competent court directing ejectment of the second respondent and recovery of possession.
6.1. The petitioners went to the property seeking execution of the possession warrant after which the alleged altercation happens and the complaint registered in Crime No.112/2017 and he would submit that the order rejecting the -5- CRL.P No. 2652 of 2022 'B' report is performatory and does not bear any application of mind to the facts that are necessary to be considered.
7. Respondent No.2 though served remains unrepresented.
8. The learned HCGP would however refute the submissions to contend that the petitioners would have all the opportunity to defend themselves in a full blown trial and there is no warrant of interference at this juncture.
9. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.
10. The afore-narrated facts are not in dispute and therefore, need not be reiterated. The issue with regard to the matter being purely civil in nature or otherwise would have to be placed in the background, in the teeth of the order that is passed rejecting the 'B' report and issuing the summons against the petitioners.
11. The Police after investigation have filed a 'B' report in the aforesaid crime. A protest petition is filed by the -6- CRL.P No. 2652 of 2022 complainant on the 'B' report and the order which is termed on the order of protest petition reads as follows:
" ORDER ON PROTEST PETITION The PSI, Masthi Police Station filed 'B' report stating that no case is made out against the accused.
The complainant appeared through counsel and filed protest petition stating that the I.O without examining the complainant and eye witnesses filed 'B' report. On 12.10.2017 at about 11.30 a.m., when the complainant along with his wife and relatives were running Panipuri shop in the said suit schedule property, the accused Mohan Rao along with Anand rao and Krishna came near alleged property and threatened them by showing knife and clubs and asked them to remove the said shop and also threatened that, by blasting the gas cylinder he will kill them. Further the accused also thrown the articles/ vessels kept for panipuri shop and also torn their clothes and attempted to outrage their modesty and abused them with filthy language.
After hearing on protest petition by setting aside 'B' report, case was posted for sworn -7- CRL.P No. 2652 of 2022 statement. The sworn statement of the complainant and two witnesses namely Ashoka and Jayamma was recorded. All of them in their statement stated that the accused persons had illegally entered into the property of the complainant, threatened the complainant by showing knife & clubs and assaulted him. When the complainant attempted to escape the accused persons assaulted him with knife on his left hand and thrown the vessels kept in shop and abused him with filthy language. But none of them have stated regarding the ingredients attracting offence punishable U/s.504 of IPC.
On perusal of all materials on record, it goes to show that there are sufficient material to take cognizance of the offence punishable U/s. 323, 324, 354, 506 r/w. Sec 34 of IPC. Hence, I proceed to pass the following:
ORDER Cognizance is taken for the offence punishable U/s. 323, 324, 354, 506 r/w. Sec 34 of IPC against accused Nos.1 to 3.
Office is directed to register criminal case against accused Nos.1 to 3 for the offence punishable U/s. 323, 324, 354, 506 r/w. Sec 34 of -8- CRL.P No. 2652 of 2022 IPC and to issue summons to the accused if PF is paid."
12. A perusal at the order passed on the 'B' report would run foul of the judgment rendered by the co-ordinate Bench of this Court in the case of Dr Ravikumar vs Mrs K M C Vasantha and another reported in ILR 2018 KAR 1725, wherein this Court has laid down the guidelines to the Magistrate or the concerned Court which would consider the 'B' report and to pass orders in the manner that is indicated therein. This Court has held as follows:
"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 may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of -9- CRL.P No. 2652 of 2022 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 between Abhinandan Jha v. Dinesh Mishra [AIR 1968 S.C. 117.] (para 15) and also Full Bench decision of Apex Court in between Kamalapati Trivedi v. State of West Bengal [(1980) 2 SCC 91.] (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 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 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,
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CRL.P No. 2652 of 2022the 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 complaint/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 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
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CRL.P No. 2652 of 2022through 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 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.
6. Of course, the contents of the Protest Petition before taking cognizance can only be used for a limited purpose of ascertaining whether the investigation done by the Police is proper and correct. Therefore, the Learned Magistrate has committed a serious error in not passing any orders on the 'B' Summary Report before taking cognizance on the basis of the Protest Petition.
7. Issuance of summons to the accused will have a serious repercussion, i.e., calling upon a person to the Court is also a very serious act of the Court. Therefore, the procedure contemplated as noted above has to be very scrupulously and meticulously followed by the Court. The Magistrate has to explore all the options as noted above in accordance with law at right stages, which has not been done in this particular case. The Learned Magistrate has relied upon the contents of the Protest Petition and the sworn statement for the purpose of rejecting the 'B' Summary Report, which is not proper and correct. He has to pass orders on the 'B' Summary report before taking cognizance on the Protest Petition for the reasons already narrated in the earlier paragraphs of this judgment.
8. The Learned Counsel for the petitioner has relied upon many rulings as to how the contents of the Protest Petition and the sworn statement of the complainant and statements of his witnesses have to be considered. There is no need to consider those rulings in view of the fact that the Learned Magistrate, has
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CRL.P No. 2652 of 2022committed the above said serious procedural irregularities and defects which are incurable in nature, and on which ground itself the order is not sustainable."
13. The order was passed on 21.11.2019 by which time the judgment rendered in Dr.Ravikumar (supra) was in place.
Therefore, the order which runs foul of the order passed by the co-ordinate Bench as afore-quoted is rendered unsustainable and the learned Magistrate will have to re-consider the matter from the stage of consideration of the 'B' report to be in tune with the judgment of the co-ordinate Bench quoted supra.
14. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
ii. The FIR dated 13.10.2017, registered as Crime
No.112/2017 and all proceedings in
C.C.No.856/2019 pending on the file of the
I Additional Civil Judge and J.M.F.C., Malur, stand quashed.
iii. The matter is remitted back to the hands of the learned Magistrate to consider the issue from the stage of consideration of the 'B' report and pass an
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appropriate orders, in accordance with law. While doing so, the learned Magistrate shall bear in mind the observations made in the course of this order and the judgment in the case of Dr.Ravikumar (supra).
In view of the disposal of the main petition, I.A.No.1/2022 also stands disposed.
Sd/-
JUDGE KG