Karnataka High Court
G.H.Shiakh vs The State Of Karnataka on 9 January, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION No. 11326/2013
BETWEEN:
1. G.H.SHIAKH
AGED ABOUT 59 YEARS,
OCC: SHERISTEDAR,
TAHASILDAR OFFICE,
R/O. HUBLI.
2. A.S.PATHAN
AGED ABOUT 43 YEARS,
OCC: REVENUE INSPECTOR,
TAHASILDAR OFFICE,
R/O: HUBLI.
3. P.N. CHITTA
AGED ABOUT 56 YEARS,
OCC: REVENUE INSPECTOR,
TAHASILDAR OFFICE,
R/O: HUBLI.
4. K.N.SIDDALAPUR
AGED ABOUT 50 YEARS,
OCC: PEON,
TAHASILDAR OFFICE,
R/O: HUBLI.
... PETITIONERS
(BY SRI V. M. SHEELVANT, ADVOCATE)
2
AND :
1. THE STATE OF KARNATAKA
THROUGH PSI, SUB-URBAN P.S.
HUBLI, R/BY SPP,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
2. SMT. USHADEVI
W/O. SUBHASCHANDRA KONNUR
AGE: 27 YEARS, OCC: PDO
R/O. TAHASILDAR OFFICE, HUBLI.
... RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. S.P.P. FOR R1;
SRI PRAKASH ANDANIMATH, ADVOCATE FOR R2 - ABSENT)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS
INITIATED AGAINST PETITIONERS IN C.C.NO.1035/2013
PENDING ON THE FILE OF PRL. CIVIL JUDGE & JMFC COURT,
HUBLI, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
143, 147, 353, 504 R/W SECTION 149 OF I.P.C.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel for petitioners and also learned Additional State Public Prosecutor for respondent No.1 - State. None appears for respondent No.2, though the respondent No.2 is represented by a counsel.
2. Perused the petition averments.
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3. The short questions that arise for consideration of this Court are-
1. Whether the objections filed to 'B' Summary report submitted by the police, which does not contain any allegations against the accused persons narrated therein, constitute any offence under any penal law for time being in force?
2. Whether the Magistrate can take cognizance and record the sworn statement of complainant and other witnesses and issue summons against the accused persons?
4. It is evident from the records that respondent No.2 herein lodges a complaint against the petitioners herein making allegations against some 10 unknown persons stating that the complainant is working as Taluk Panchayat Officer in the office of Tahsildar at Hubli. It is alleged that on 29.03.2010 around 12.30 p.m. when she was discharging her duty, about 10 persons entered into the office and told that they are doing strike and also asked the complainant to join them. As the complainant refused to join them, the said persons threatened her with dire 4 consequences of killing her and they threatened that they will lock her inside the office etc. On the above said allegations, the police have registered a case for the offences punishable under Sections 143, 147, 353 and 504 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.' for brevity). After due investigation, it appears that the police have submitted a 'B' summary report before the learned J.M.F.C., Hubli. After receipt of notice on the said 'B' report, respondent No.2 has appeared before the learned Magistrate and filed objections to the said 'B' summary report. The Magistrate on the basis of such 'B' summary report has taken cognizance and recorded the sworn statement of complainant Smt. Ushadevi and issued summons to the accused by registering a case in C.C. No.1035/2013. The said order is called in question before this Court.
5. The learned counsel strenuously argues that in order to take cognizance the Magistrate has to look into the contents of objections filed to 'B' summary report. The allegations made in the objections should be in the nature of complaint under Section 2(d) of the Code of Criminal Procedure, 1973. If the allegations made in the said objections constitute any offence against the petitioner then only the Magistrate is empowered to take cognizance and 5 proceed further. Therefore, taking of the cognizance itself is bad in law so far as this case is concerned. In order to ascertain this, it is just and necessary to look into the provisions under Code of Criminal Procedure, 1973 how the law explains the complaint. Section 2(d) of Cr.P.C., which reads as follows-
"2(d) "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
6. On meaningful reading of the said provision, it discloses that the allegations may orally or in writing should show the commission of any offence by the accused persons or against the persons such allegations are made in order to enable the Magistrate to take action upon such complaint. Section 190 of Cr.P.C. reads as follows-
190.Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -
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(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
(emphasis supplied)
7. In continuation of Section 2(d) of Cr.P.C., if the above said provision is read, Section 190 of Cr.P.C. empowers the Magistrate to take cognizance only under certain circumstances. Particularly, so far as this case is concerned, Section 190(1) (a) and (c) are applicable, i.e., to say the Magistrate upon receiving the complaint of facts which constitute such offence then only he is empowered to take cognizance and proceed with the case. Section 200 of Cr.P.C. is also relevant here, which reads as follows-
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200.Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
8. The above said provision also makes it clear that the Magistrate on taking cognizance of the offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination 8 shall be reduced into writing and shall be signed by the complainant and the witnesses. On meaningful reading of this section, it discloses that how the Magistrate can take the cognizance is described under Section 190 of Cr.P.C. If the Magistrate successfully passes through Section 190 of Cr.P.C. by taking cognizance then only he is permitted to proceed with the case further to record the sworn statement of the complainant and the witnesses.
9. The objections filed to 'B' summary report discloses that, "the complainant has stated that the Investigating Officer has filed 'B' summary report without taking proper steps for identification of the accused persons and ignoring the statement of complainant also they have filed the 'B' summary report. In the second paragraph of the objection statement it is stated that though on 29.07.2011 the complainant submitted an information to the police mentioning the names of accused, the police have not properly investigated the case. At para 3 of the said objection statement the names of accused persons have been stated and it is alleged that the police have not at all recorded the statement of any witnesses and the accused persons and wrongly submitted the 'B' final report."9
10. Except the above said averment in the objection statement, the complainant has not at all stated about the incident, overt acts of the accused persons and how the complainant has suffered at the hands of accused persons, etc. Therefore, the objections filed to 'B' Summary report is very bald, which does not contain any allegations against the petitioners, muchless any person, constituting any offence under any of the penal law for the time being in force. When such allegations are not there in the objections of 'B' summary report, at no stretch of imagination, it can be construed as a complaint under Section 2(d) of Cr.P.C. so as to enable the Magistrate to take cognizance under Section 190 of Cr.P.C. It appears, the Magistrate without looking into the contents of objections filed by the complainant to 'B' summary report has taken cognizance and proceeded to record the statement of P.W.1 - Smt. Ushadevi. In similar matters this Court had an occasion to deal with the above said provisions and in those cases also this Court has observed that unless there are some allegations in the objections to 'B' summary report, the Magistrate cannot take cognizance and proceed with the matter.
In a case reported in -
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ILR 1987 Kar 994 between Basappa and others vs. State of Karnataka and Another. This Court has held that-
Criminal - Consideration of 'B' Summary report - Offence committed punishable under Section 147, 148, 427, 447, 504 and 506 r/w Section 149 of Indian Penal Code, 1860 (I.P.C.) - Petition filed challenging the legality and correctness of order passed by the Sessions Judge directing and Judicial Magistrate First Class to consider the 'B' Summary report afresh after giving an opportunity to the complainant to prove his case
- Held, there were no allegations in the protest memo filed in the case - It was not a complaint within the meaning of that expression as defined under Section 2(d) of the Cr.P.C. 1973 because complaint as defined means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, committed an offence, but did not include a police report - Sessions Judge was wholly in error in entertaining the revision and directing the Magistrate to consider the case afresh
- Petition allowed.
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11. In another decision reported in ILR 2002 Kar 1665 between Veerappa and others vs. Bhimareddappa, this Court has held as follows-
Criminal - quashing of proceeding - Section 2(d) and 190 (1) (a) of Criminal Procedure Code, 1973 - complaint filed against accused -
investigating officer investigated matter and submitted report - accused sought quashing of proceeding - where complainant did not file any complaint before Magistrate under Section 200 but approached police only and where police later investigation and filed report - if complainant wanted to protest he had to satisfy the requirements of complaint as defined in Section 2(d) and that should contain facts that constitute offence for which Magistrate taking cognizance under Section 190 (1) (a) - contents of protest petition filed by accused did not make document concerned a complaint within meaning of Section 2(d) - petition allowed.
12. In view of the above said decisions which are aptly applicable to the facts and circumstances of this case, I do not find any strong reason to give my affirmation to the proceedings 12 taken place before the Magistrate. Hence, cognizance taken by learned Magistrate on the basis of objections filed to 'B' summary report is bad in law and all subsequent proceedings which has taken place is also vitiated. Hence, the same is liable to be quashed. In view of the same, I proceed to pass the following-
ORDER Petition filed under Section 482 of Cr.P.C. is hereby allowed. Consequently, the entire proceedings initiated against the petitioners in C.C. No.1035/2013 pending on the file of Civil Judge and J.M.F.C. Hubli are hereby quashed.
SD/-
JUDGE hnm/