Karnataka High Court
Bhujabali Pasane vs The State Of Karnataka And Anr on 1 July, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION No.200310/2021
BETWEEN:
Bhujabali Pasane
S/o. Kallappa Pasane
Age: 38 years, Occ: Government
Servant, R/o. Satvika Building
12th Cross, Near Indian Oil Petrol
Pump, Udapi - 576101
... Petitioner
(By Sri Ameet Kumar Deshpande, Advocate)
AND:
1. The State of Karnataka
Jalanagar Police Station
Vijayapura - 585101
Through its PSI
Represented by the Additional
State Public Prosecutor, High Court
of Karnataka, Kalaburagi Bench
2. Prasanna Malkajappa Angadi
Age: Major, Occ: Govt. Servant
R/o. Gandhinagar
Vijayapura, Through PSI
... Respondents
(By Sri Sharanabasappa M. Patil, HCGP for R1;
R2 served, unrepresented)
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This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to allow this petition and quash the order
dated 02.09.2020 passed in C.C.No.178/2020 on the file of
the III Addl. Civil Judge and JMFC, Vijayapura, rejecting
the 'B' false report filed by the Investigating Officer and
further taking cognizance against the petitioner herein in
Crime No.18/2017 of Jalanagar police station, Vijayapura
and to pass any other appropriate orders as may be
deemed necessary in the facts and circumstances of the
case.
This petition coming on for Admission this day, the
Court made the following:
ORDER
The petitioner has filed this petition under Section 482 of Cr.P.C. for quashing the order dated 02.09.2020 passed in C.C.No.178/2020 on the file of III Additional Civil Judge and JMFC, Vijayapura, whereby, he has rejected the 'B' false report submitted by the investigating officer and further taking cognizance against the present petitioner in Crime No.18/2017 of Jalanagar police station, Vijayapura. 3
2. The factual matrix leading to this case are that the complainant/respondent No.2 has lodged a FIR with Jalanagar police station, Vijayapura against the present petitioner for the offences punishable under Sections 323, 324, 307, 504, 506 read with Section 34 of IPC along with other accused persons. The police after registering the complaint in Crime No.18/2017 and after investigating of the matter, the investigating officer has found that there is no material as against the present petitioner and other accused person has submitted the 'B' final report. In pursuance of the 'B' final report, the learned Magistrate without applying his judicious mind to the 'B' final report, has straightway issued noticed to the complainant/respondent No.2, who has appeared and filed protest petition. Thereafter, sworn statement of the complainant and one witness was also recorded and seven documents were marked. Thereafter, the learned Magistrate vide his order dated 02.09.2020 rejected the 'B' final report submitted by the investigating officer and taken cognizance for the offences punishable under 4 Sections 323, 324, 504 and 506 of IPC with a direction to issue summons to the present petitioner.
3. Being aggrieved by this order of taking cognizance and issuance of summons, the petitioner has filed this petition under Section 482 of Cr.P.C. for quashing the impugned order.
4. The learned counsel for the petitioner would submit that the entire procedure adopted by the learned Magistrate is against the settled principles of law and entire proceedings stand vitiated. The learned Magistrate has not applied his judicious mind and he has neither rejected the 'B' final report nor appreciated it and after recording the sworn statement, finally he has rejected the 'B' final report, which is not in accordance with law and against the mandate of law. He has placed reliance on the decision of this Court reported in ILR 2018 KAR 1725 in the case of Dr. Ravikumar vs. Mrs.K.M.C. Vasantha. He would further submit that the principles enunciated in the above said decision are directly applicable to the 5 factual aspects in the present case. Hence, he has sought for setting aside the impugned order.
5. Heard the learned High Court Government Pleader for respondent No.1 - State. Respondent No.2 though served, is unrepresented.
6. Having heard the arguments and perusing the records, it is evident that the investigating officer has initially submitted a 'B' false report and after receipt of the 'B' false report, the learned Magistrate has directly issued notice to the complainant. The certified copy of the order sheet does disclose that the learned Magistrate has not applied his mind to the 'B' false report. He has neither accepted nor rejected the 'B' false report to verify whether further investigation is required or not. However, after filing of the protest petition, he straightaway proceeded to record the sworn statement of the complainant and one witness and documents were also got marked. Then, by the impugned order dated 02.09.2020, he has rejected the 6 'B' false report and directly issued summons against the present petitioner/accused.
7. The learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Dr. Ravikumar (Supra), wherein, in the similar set of situation, this Court by relying on the decision of the Hon'ble Supreme Court, has laid down certain procedure as to how the Magistrate is required to act after receipt of the 'B' final report. This can be found in paragraph No.5 of the said judgment, which reads as under:
"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 7 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 Honble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal (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 8 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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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 complainant/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 10 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 11 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."
8. In the instant case also, the learned Magistrate has not followed any of these procedures as contemplated. But, on the other hand, without rejecting the 'B' false summary report and without taking cognizance, he has issued notice to the complainant and then after recording his sworn statement, issued summons to the present petitioner. This is against the settled principles of law and the procedure contemplated under Sections 200 to 204 of Cr.P.C. is not followed by the learned Magistrate. He has not applied his judicious mind to the statutory provisions. Hence, the petition needs to be allowed. However, the 12 question of quashing the entire proceedings does not arise at all and accordingly, I proceed to pass the following:
ORDER The petition is allowed. The impugned order dated 02.09.2020 passed by the II Additional Senior Civil Judge and JMFC, Vijayapur in C.C.No.178/2020 and all further proceedings in consequence are set aside. The matter is remitted back to the learned Magistrate with a direction to follow the procedure as contemplated in the decision referred to above and then pass appropriate orders in accordance with law.
Sd/-
JUDGE Srt