Karnataka High Court
Smt. Shivalingamma vs State By Channagiri P S on 19 July, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:25142
CRL.P No. 4586 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4586 OF 2023
BETWEEN:
SMT. SHIVALINGAMMA,
W/O LATE. ESHWARAPPA,
AGED ABOUT 83 YEARS,
OCCUPATION: AGRICULTURIST,
NEETIGERE VILLAGE, CHANNAGIRI TALUK,
DAVANGERE DISTRICT - 577 215.
...PETITIONER
(BY SRI. RAJAKUMAR C., ADVOCATE)
AND:
1. STATE BY CHANNAGIRI P.S.,
REPT. BY STATE PUBLIC PROSECUTOR,
Digitally signed HIGH COURT BUILDING,
by PADMAVATHI
BK BANGALORE - 560 001.
Location: HIGH
COURT OF 2. SRI. MALLIKARJUN, S/O MAHADEVAPPA,
KARNATAKA AGED ABOUT 65 YEARS,
R/O HEBLAGERE VILLAGE,
CHANNAGIRI TALUK - 577 215.
DAVANAGERE DISTRICT.
3. SRI. UMAPATHI, S/O MAHADEVAPPA,
AGED ABOUT 58 YEARS,
R/O HEBLAGERE VILLAGE,
CHANNAGIRI TALUK - 577 215.
DAVANAGERE DISTRICT.
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NC: 2023:KHC:25142
CRL.P No. 4586 of 2023
4. SRI. DEVANNA, S/O MAHADEVAPPA,
AGED ABOUT 50 YEARS,
R/O HEBLAGERE VILLAGE,
CHANNAGIRI TALUK - 577 215.
DAVANAGERE DISTRICT.
5. SRI. SHANKRAPPA, S/O SHIVAPPA,
AGED ABOUT 68 YEARS,
R/O HEBLAGERE VILLAGE,
CHANNAGIRI TALUK - 577 215.
DAVANAGERE DISTRICT.
...RESPONDENTS
(BY SMT. K. P. YASHODA, HCGP FOR R1;
SRI. P. M. SIDDAMALLAPPA, ADVOCATE FOR R2 TO R5)
THIS CRL.P IS FILED UNDER SECTION 482 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 09.03.2021
PASSED BY THE I ADDL.CIVIL JUDGE AND J.M.F.C
CHANNAGIRI, DAVANAGERE IN PCR.NO.38/2017 AND
RESTORE THE COMPLAINT FILED BY THE COMPLAINANT IN THE
ORIGINAL FILE AND PERMIT THE COMPLAINANT TO PROTEST
THE B REPORT FILED BY THE 1ST RESPONDENT CHANNAGIRI
POLICE AND PERMIT THE PETITIONER TO CONTEST THE CASE
ON MERITS ALLOW THE PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
"WHEREFORE, the petitioner most respectfully pray that this Hon'ble court may be pleased to set aside the order dated 09.03.2021 passed by the I ADDL. Civil Judge and JMFC Channagiri, Davanagere in PCR No.38/2017 and restore the complaint filed by the -3- NC: 2023:KHC:25142 CRL.P No. 4586 of 2023 Complainant in the original file and permit the Complainant to protest the "B" Report filed by the 1st respondent Channagiri police and permit the Petitioner to contest the case on merits allow the petition and grant such other relief as this Hon'ble court deems fit to grant in the circumstances of the case, in the interest of justice and equity."
2. Heard Sri. Rajakumar C., learned counsel appearing for the petitioner, Smt. K.P. Yashoda, learned High Court Government Pleader appearing for respondent No.1 and Sri. P.M. Siddamallappa, learned counsel appearing for respondents No.2 to 5.
3. The petitioner is the complainant, registers a complaint invoking Section 200 of the Cr.P.C. in PCR.No.38/2017. A private complaint was filed on 16.08.2017, the matter was referred for investigation on 23.09.2017. The Police register an FIR after the reference in crime No.512/2017 against accused Nos.1 to 4, the respondents herein, for the offence punishable under Sections 466, 34, 409, 420, 465, 468 and 469 of the Indian Penal Code, 1860.
4. The Police conduct investigation and file a 'B' report before the concerned Court on 01.04.2019. The complainant files a protest petition against the 'B' report on 19.10.2019.
-4-NC: 2023:KHC:25142 CRL.P No. 4586 of 2023 After 19.10.2019, ample opportunities were granted to the petitioner to appear before the Court over a statement on the 'B' report. The complainant fails to appear. On default of the petitioner, the concerned Court dismisses the case for default.
It is this order that drives the petitioner to this Court in the subject petition. There has been gross delay on the part of the petitioner in approaching this Court as well, as the petition is filed only on 26.05.2023.
5. The learned counsel appearing for the petitioner would submit that if one opportunity is granted and the date is fixed, the complainant would appear before the concerned Court and co-operate with the continuance of the trial before the concerned Court.
6. Learned counsel representing the respondent would take this Court through the documents appended to the petition to demonstrate that the complainant herself has sought to withdraw the proceedings and continue the civil proceedings that she has initiated. Therefore, the order should not be interfered with.
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7. The learned High Court Government Pleader would only submit that the Police have filed the 'B' report in the matter.
8. The issue does not concern the merit of the matter.
The concerned Court after the protest petition was filed, listed the matter on at least twelve occasions, but the complainant/petitioner did not appear for enquiry. Therefore, the Court was constrained to pass the following order:
"For Complainant present and prays time for enquiry enquiry on 'B' report but court has given sufficient time from 10.12.2019 till today, Complainant has not present before the court to lead her case this shows she has not interested. Hence prayer of counsel and case of the Complainant is hereby dismissed for default.
Sd/-
09/3/21"
9. The complaint is closed by dismissing it for default.
Dismissing it for default is contrary to law, as this Court in the case of DR. RAVIKUMAR V. MRS. K.M.C. VASANTHA AND ANOTHER reported in ILR 2018 KAR 1725 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' -6- NC: 2023:KHC:25142 CRL.P No. 4586 of 2023 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 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.
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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, 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 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 -8- NC: 2023:KHC:25142 CRL.P No. 4586 of 2023 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 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 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 -9- NC: 2023:KHC:25142 CRL.P No. 4586 of 2023 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 committed the above said serious procedural irregularities and defects which are incurable in nature, and on which ground itself the order is not sustainable."
10. In terms of the guidelines as laid down in the case of DR. RAVIKUMAR (supra), the Magistrate could not have dismissed the case for its default. The dismissal of the case for its default is contrary to law. Therefore, the learned Magistrate is required to reconsider the matter from the stage of enquiry on the 'B' report.
11. Learned counsel appearing for the petitioner is granted one opportunity to appear before the concerned Court and for the enquiry on the 'B' report. If this opportunity is lost, the concerned Court is at liberty to pass the appropriate orders in accordance with law.
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NC: 2023:KHC:25142 CRL.P No. 4586 of 2023
12. For the aforesaid reasons, the following:
ORDER I. The criminal petition is allowed-in-part.
II. The order dated 09.03.2021 passed by the Principal Civil Judge and JMC Channagiri, Davanagere in PCR No.38/2017 stand quashed.
III. The matter is remitted back at the hands of the learned Magistrate.
IV. The petitioner is directed to appear before the Court on 16.08.2023. The Court is at liberty to regulate the procedure further on the appearance of the petitioner and pass appropriate orders in accordance with law.
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JUDGE JY List No.: 1 Sl No.: 28 CT:PH