Karnataka High Court
Smt Muthamma Appanna vs The State Of Karnataka on 23 September, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE Mr. JUSTICE JOHN MICHAEL CUNHA
Crl.P. No. 8449/2016
BETWEEN :
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1. Smt. Muthamma Appanna
W/o. late A.B. Appanna
Aged 71 years
2. Sri. Ramesh
S/o. Chengappa
Aged 59 years
3. Sri. Manju
S/o. Chatha
Aged 25 years
All are R/a. New Hope Estate
Kothur Villge
Virajpet Taluk - 571 218.
4. Sri. Kalimada M. Prakash
S/o. late K. Monnaiah
Aged about 66 years
R/a. Kurchi Village
Virajpet Taluk
South Kodagu - 571 218. ... PETITIONERS
(By Sri. M.V. Poonacha, Adv.)
2
AND :
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1. The State of Karnataka
Rep. by Sub-Inspector
Of Police
Kutta Police Station
Kodagu Dist. - 571218.
2. Lt. Col. (Retd.) M.A. Kariappa
S/o. late M.B. Aiyappa
Aged 78 years
R/a. No. 16, Sena Vihar
Kammanahalli Main Road
Bangalore - 560 043. ... RESPONDENTS
(By Sri. Vijayakumar Majage, Addl. SPP for R-1
Sri. Prabhugoud B.Tumbigi, Adv., for R-2)
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This Crl.P. is filed under Section 482 Cr.P.C. with a
prayer to quash the impugned order dated 14.09.2016
passed by the C.J. (Jr.Dn.) and JMFC, Ponnampet,
Kodagu, in FIR No. 2/2015 and etc.
This Crl.P. coming on for Admission this day, the
Court passed the following;
ORDER
Petitioner is aggrieved by the order dated 14.09.2016 whereby the learned Civil Judge (Junior Division) and 3 JMFC, Ponnampet, has taken cognizance of the offence under Sections 394, 447, 506 read with Section 34 IPC and issued summons to the petitioners under Section 204 of Cr.P.C.
2. Learned counsel for petitioners at the outset submitted that the dispute between the parties is purely civil in nature. The controversy has arisen out of written agreement of sale dated 27.06.2005 and as such there was no cause of action for respondent No. 2 to take recourse to criminal action against the petitioners for the alleged breach of the terms of contract. Further he submitted that the investigating agency having submitted B Summary report after detailed investigation, the learned Magistrate was not justified in issuing summons to the petitioners without there being prima facie material making out ingredients of the above offence. 4
3. Learned counsel for respondent No. 2 and learned Addl. SPP appearing on behalf of respondent No. 1 however argued in support of the impugned action contending that the material on record prima facie disclose the ingredients of the above offence and therefore there is no reason to quash the impugned proceedings.
4. On going through the material on record it is noticed that on the basis of the information lodged by respondent No. 2 before respondent No. 1 - Police, after investigation B summary report was submitted to the learned Magistrate. In view of the procedure contemplated under Section 200 Cr.P.C. as explained by the Supreme Court in the case of KAMALAPATI TRIVEDI v. STATE OF WEST BENGAL reported in [1980] SCC [2] 91 which is followed by this Court in the case of DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER reported in ILR 2018 KAR 1725, the learned Magistrate was required to consider 5 the B Summary report and the material produced in support thereof and pass appropriate orders either accepting or rejecting the B summary report and only thereafter proceed to record the sworn statement of the complainant and his witnesses. In the above decision it has been held 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 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 6 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.
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."
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5. In the instant case, the impugned order reveals that the learned Magistrate has not considered the B summary report at all and has passed the impugned order based on the objections filed by respondent No. 2 and documents produced by him which should not have been taken into consideration by the learned Magistrate at that stage. The procedure adopted by the learned Magistrate being contrary to the law laid down in the above said decision, the impugned order dated 14.09.2016 and consequent proceedings conducted by the learned Magistrate are liable to be quashed.
6. Accordingly, petition is allowed, the impugned order dated 14.09.2016 is quashed. Consequently, proceedings on the file of Civil Judge (Junior Division) and JMFC, Ponnampet, Kodagu, in Crime No. 2/2015 are quashed. The matter is remitted to the learned Magistrate to reconsider the B summary report afresh in the light of 8 the guidelines laid down in the above said decision. All the legal and factual contentions urged by the parties are kept open for consideration at the appropriate stage.
Sd/-
JUDGE.
LRS.