Karnataka High Court
Sri K S Nagabhushana vs Sri H B Sadashiva Jois on 25 March, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:12171
CRL.P No. 1412 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 1412 OF 2019
BETWEEN:
SRI. K.S. NAGABHUSHANA,
S/O K. SUBRAMANYA SHASTRY,
AGED ABOUT 60 YEARS,
R/O M.I.G. 203,
GOPISHETTY KOPPA,
K.H.B. COLONY,
SHIVAMOGGA - 577 205.
...PETITIONER
(BY SRI. SHOWRI H.R., ADVOCATE)
AND:
1. SRI. H.B. SADASHIVA JOIS,
S/O H.R. BALACHANDRA JOIS,
Digitally signed R/O NO.31, 3RD CROSS,
by V KRISHNA NINGAPPA LAYOUT,
Location: High
Court of URGADUR,
Karnataka SHIVAMOGGA - 577 203.
2. STATE OF KARNATAKA,
REP. BY TUNGANAGARA POLICE STATION,
SHIVAMOGGA RURAL CIRCLE,
SHIVAMOGGA - 577 201,
REP. BY SPP.
...RESPONDENTS
(BY SRI. S. ASHOKA, ADVOCATE FOR R1;
SMT. RASHMI PATEL, HCGP FOR R2)
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NC: 2024:KHC:12171
CRL.P No. 1412 of 2019
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH IMPUGNED ORDER DATED 11.01.2019 PASSED BY THE
LEARNED III ADDITIONAL CIVIL JUDGE AND JMFC,
SHIVAMOGGA IN TO PCR.NO.902/2015 (ANNEXURE-A) AND
ACCEPT THE C FINAL REPORT FILED BY THE RESPONDENT
NO.2 POLICE DATED 18.02.2018 (ANNEXURE-D) AND ACQUIT
THE PETITIONER IN THE PCR.NO.902/2018 FOR THE OFFENCE
P/U/S 182,420,465,468,469 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C. for quashing the impugned order dated 11.01.2019 in PCR No.902/2015 issuing summons to the petitioner by the Trial Court on the private complaint preferred by respondent No.1.
2. Heard learned counsel for the petitioner and learned HCGP for respondent No.2 - State.
3. The case of the prosecution is that respondent No.2 filed a private complaint under Section 200 Cr.P.C. by showing the name of the petitioner as accused for the offences punishable under Section 182, 420, 465, 468, 469 of IPC before the learned Magistrate on 21.12.2015. On 04.01.2016, the learned Magistrate referred the matter -3- NC: 2024:KHC:12171 CRL.P No. 1412 of 2019 to the police for registering the FIR and investigating the matter under Section 156(3) of Cr.P.C. Subsequently, the Tunga Nagar Police, Shivamogga registered the FIR in Crime No.167/2016 and took up the investigation. After the investigation, they filed 'C' final report before the learned Magistrate stating that the accused is not traceable.
4. The complainant/respondent No.1 appeared before the learned Magistrate and filed protest petition stating that the accused obtained anticipatory bail and appeared before the police and prayed that 'C' final report shall be rejected. Accordingly, learned Magistrate has passed the order on 11.01.2019 stating that though the police have filed 'C' final report, since, accused is not traceable and the present petitioner being accused, named in the complaint, has been obtained anticipatory bail and appeared before the police. Therefore, he prayed for rejecting the 'C' final report. The learned Magistrate vide -4- NC: 2024:KHC:12171 CRL.P No. 1412 of 2019 impugned order rejected the 'C' final report and issued summons to the petitioner, which is under challenge.
5. Learned counsel for the petitioner contended that though the police stated that real accused is not traced and the learned Magistrate once rejected the 'C' report, could have taken cognizance, recorded the sworn statement of the witnesses and the complainant thereafter, shall pass the order under Section 204 of Cr.P.C. against the petitioner by issuing summons, if any offences are made out against the petitioner. Without doing so, issuing summons to the petitioner is not sustainable. Hence, prayed to quash the same.
6. Per contra, learned High Court Government Pleader for respondent No.2 - State stated that respondent/complainant made the petitioner as accused in the complaint. The petitioner/accused has obtained the bail. Such being the case, police have filed false 'C' report stating that accused is not traceable. Therefore, learned High Court Government Pleader supported the impugned -5- NC: 2024:KHC:12171 CRL.P No. 1412 of 2019 order and prayed to reject the petition. Further, learned High Court Government Pleader submitted that once 'C' final report is rejected, the Court required to take cognizance and proceed in accordance with law.
7. Having heard the arguments of the petitioner and learned HCGP and on perusal of the entire material on record, it is not in dispute that respondent No.2 filed a private complaint under Section 200 of Cr.P.C and got it registered a case with the police under Section 156(3) of Cr.P.C. The police though registered the FIR, after the investigation, they have filed 'C' final report stating that respondent No.2 has not given any proper original documents in order to verify and obtain the FSL report and real accused is not traceable as it is anonymous message. Therefore, the police have filed 'C' final report. Of course, the police have stated that they are not able to trace the real accused, hence, filed 'C' final report. Once, 'B' final report or 'C' final report filed by the police, it is the duty of the Magistrate to issue notice to the complainant, bringing -6- NC: 2024:KHC:12171 CRL.P No. 1412 of 2019 to the notice of the complainant, to show about the 'C' and 'B' final report, if any, filed by the police. Ultimately, the respondent/complainant has filed a protest petition and the protest petition was taken on record but without recording the sworn statement of the complainant and recording any witnesses required under Section 201 and 202 of Cr.P.C. by taking cognizance by the learned Magistrate and thereafter, the learned Magistrate shall issue process under Section 204 of Cr.P.C. But the impugned order reveals no such attempt is made by the learned Magistrate while rejecting the 'B' final report. The learned Magistrate has not recorded the sworn statement of the complainant or any other witnesses. Such being the case, directly issuing the summons to the accused is not sustainable under law. Therefore, impugned order has to be set aside.
8. Accordingly, following:
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NC: 2024:KHC:12171 CRL.P No. 1412 of 2019 ORDER i. Petition is allowed. ii. Order of the learned Magistrate dated 11.01.2019 in PCR No.902/2015 issuing summons to the petitioner is hereby set aside.
iii. Learned Magistrate is directed to take cognizance and record the sworn statement of the complainant or any other witnesses as per Section 200 to 204 of Cr.P.C. thereafter, proceed in accordance with law.
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JUDGE KAV List No.: 1 Sl No.: 12